By: Benjamin Williams
With the rapid increase in political polarization in recent years, momentum is building in several states to dramatically alter the redistricting process after the 2020 Census. True to the idea of the states being laboratories of democracy, there have been state constitutional amendments in Florida, partisan gerrymandering challenges in Wisconsin, Maryland, and North Carolina, redistricting criteria bills in Virginia, as well as a myriad of racial gerrymandering challenges. But the new idea—based on a blend of Iowa-style and Florida-style redistricting—is to create stringent criteria for legislatures to follow. That idea is simple enough: if the redistricting body (legislature, independent redistricting commission, college students, etc.) is forced to follow strict criteria when redistricting, the result will be “better” districts that aren’t ugly and are more competitive. But does the data actually bear this out?
While there are several varieties of redistricting criteria in existence, University of Chicago law professor Nicholas Stephanopoulos has conceptualized a dichotomy based on the intent of the data: so called “consequentialist” criteria, versus “traditional” criteria. Consequentialist criteria are designed to achieve a desired redistricting result, such as making districts more competitive. Traditional redistricting criteria include things like compactness, contiguity, respect for communities of interest, and following pre-existing political boundaries where possible. While the latter are often described as intending to “guard against all types of gerrymandering,” their effect seems to be variable. Professor Stephanopoulos, after doing regression analysis regarding the impact of various redistricting principles on the ultimate competitiveness of districts, found that neither consequentialist criteria nor traditional criteria alone achieved the competitive congressional districts reformers have desired (although consequentialist criteria alone do minimally increase competitiveness in state legislative elections). Stephanopoulos further notes that some traditional criteria—like compactness—can reduce the competitiveness of districts, even when controlling for such anti-competitive principles as empowering minorities to vote for their candidate of choice under the Voting Rights Act. But Stephanopoulos also points out that there are many states with these criteria that contain more competitive districts than states without such criteria. Why the discrepancy?
The key appears to be the redistricting institution. Stephanopoulos found that states which shift the power to draw district lines away from the legislature see a statistically significant uptick in the overall competitiveness of their districts. This is especially true when a state gets away from so-called “advisory commissions” and goes full-bore into independent redistricting commissions. These bodies, along with courts and public competitions, draw the greatest number of competitive districts. This idea finds support in an article written by political scientists Jamie Carson and Michael Crespin, which also found that the institution drawing the district—not the criteria the institution followed—had the greatest impact on the resulting competitiveness of the districts. To a large degree this is intuitive: because a politician’s greatest interest is to remain in office, he or she will team up with colleagues to ensure that they will continue to be re-elected, even within criteria intended to counter this effect. Additionally, politicians of the majority party in a redistricting legislature possesses enormous incentives to draw the lines in a manner most favorable to their continued success—even if they constitute a minority party. These incentives do not exist with an independent redistricting commission or a court. For them, redistricting only appeared in their laps because of a lack of legitimacy in the legislature’s past maps. Their incentive is to draw the fairest district possible, in order to protect their own non-partisan legitimacy.
Another way to conceptualize the criteria-institution distinction is to think of criteria as tools and institutions as the creators. In the redistricting context, Virginia provides an excellent example of how different creators can use the same tools to come to disparate outcomes. After the 2010 Census, a competition was held on college campuses across Virginia to draw new state legislative and congressional district lines. The student plans would be judged upon their compliance with traditional redistricting criteria. An analysis of the competition indicated that students, when provided with the same sophisticated redistricting software available to legislators, produced districts that were both more competitive and achieved higher marks on achieving traditional criteria goals like compactness than the plans ultimately adopted by the Virginia General Assembly. This reinforces the fundamental truth that underscores all redistricting: neutral criteria can be used to create either competitive or non-competitive districts, depending on the goals of the institution drawing them.
There are many reform options available to state legislatures, from reforming the institution to reforming the criteria. While criteria bills may be signs of a willingness for state legislatures to hand over redistricting power, those wholly driven by partisan ends can still draw non-competitive districts if unchecked in doing so. When independent commissions, judges, or students draw the lines, they can achieve districts that are both competitive and score highly on nonpartisan criteria. Were every state to give institutions or persons without a conflict interest the task of drawing district lines, legislative elections could be far more competitive than they are presently.