In political representation, redistricting is an essential tool to adjust for population shifts. The Supreme Court ruled in mid-1960s that districts would be redrawn to reflect new census data at the start of each decade. When properly implemented, the process creates legislative districts with equal populations. But redistricting can become a political tool when administered by partisan groups wanting to define districts to their advantage. Ahead of the 2022 mid-term elections and amid several redistricting court battles, the Ash Center for Democratic Governance and Innovation, in conjunction with Harvard Law School, presented a panel discussion on independent redistricting commissions, the effect of gerrymandering on voter rights, the legal battles involving racial discrimination, and the computer algorithms that inform redistricting decisions by analyzing racial polarization and citizen preferences.

The case for independent commissions

Colleen Mathis is the former chair of the Independent Redistricting Commission of Arizona and is a fan of independent commissions. “I would say the success of a given commission is going to be rooted in how it was imposed initially,” she said. “In Arizona’s case, it was rooted as a proposition, citizens voted to pass independent redistricting and bring it to our state in 2000. It was rooted in tri-partisanship, a Republican, a Democrat, and an Independent. They drafted the language with help from the League of Women Voters. It passed with 56% of the vote.” Mathis said that states have varied success in redrawing districts, but she believes a commission independent of political pull has the best interest of all citizens. “We’re better than the legislators drawing districts for themselves,” she said.

Federal law to require states to use independent commissions

Cathy Duvall is the founder of Democracy Ascent Advisors. “The House has the opportunity to pass the Freedom to Vote Act, and the redistricting piece of that is quite robust,” she said. She outlined four key components to fair maps:

  • Considering who draws that line (the proposed legislation would require independent commissions by 2030).
  • Determining what criteria is used to draw the map and banning partisan gerrymandering.
  • Implementing a process for remediation.
  • Protecting communities of color with the Voting Rights Act.

“The John Lewis Voting Rights Act covers more of that than the Freedom to Vote Act, but all of these components are going to be helpful,” she noted. “Given the challenges that many states are having to secure fair maps, I think federal legislation would be very helpful. While I am skeptical we’re going to get to it this year, it’s totally a fight worth having.”

Ben Schneer headshot.

“Political scientists help to analyze election data to try to understand past and likely future electoral behavior in the state, particularly as it pertains to compliance with the Voting Rights Act.”

Ben Schneer

What the data tells us

Ben Schneer is an assistant professor of public policy at Harvard Kennedy School and worked with the Arizona redistricting commission. He outlined how political scientists assist commissions with their work. “Political scientists help to analyze election data to try to understand past and likely future electoral behavior in the state, particularly as it pertains to compliance with the Voting Rights Act,” he said. “In working with the Arizona commission, there was a lot of concern about meeting the standards for pre-clearance for both the congressional and legislative maps. So a key question was whether the new maps produced by the commission showed evidence of retrogression, meaning did the new maps make minority voters worse off than they were under the previous map or not,” Schneer explained. “You would look at how precinct level vote totals are varying in conjunction with the demographic composition of the district or the precinct to try to make a projection, to try to characterize the voting behavior of these different groups. You’re trying to figure out which racial groups prefer which candidates, and whether they have the ability to elect those candidates.”

The legal challenges commissions face

Mitchell Brown is a voting rights lawyer with the Southern Coalition for Social Justice. He discussed whether Congress has the power to mandate the use of independent commissions. “If the citizens of the state want to create an independent commission through the proposition process as Arizona did, I don't think the legislature has a leg to stand on. Additionally, because the citizens are the ones who vote the legislators to serve in the first place, the power resides with the people,” he said. He noted recent redistricting court challenges in North Carolina. “What we're seeing now is that legislatures are drawing to their advantage. The court specifically noted that the legislators were choosing their voters, not the other way around. Independent commissions offer an opportunity to have a third party draw these districts based on statistical evidence.”

Schneer agreed that analytical data can be a key component in determining fair maps. “What these algorithms are doing is subject to some set of pre-specified constraints, like population equality across districts or compactness, producing a target distribution of map objectives, generated maps for a given state, or geographic area,” he explained. “One of the key uses for this approach is basically as a point of comparison, to try to assess the partisan fairness of a given map. And so if you're generating a bunch of maps without taking partisanship into account, you get a sense of the distribution in a state. Then you can compare.”

This process, known as an “ensemble method” is especially helpful when addressing another current legislative approach, race-blind redistricting. Schneer says that random maps generated to evaluate minority representation through a race-blind approach would significantly reduce minority representation in many states. And while state legislators may think they cannot be accused of racial gerrymandering with race-blind redistricting, Brown says that is not true. “Just because you’ve ignored the racial and ethnic identities of voters does not mean that you are not being discriminatory against them. The Voting Rights Act requires minority voters to be protected, and you can’t protect them if you’re not looking at racial and ethnic data.”

Moderator Nick Stephanopoulos, the Kirkland & Ellis Professor of Law at Harvard Law School, noted that the recent news on redistricting commissions is mixed. “Some commissions like in Arizona, California, and Michigan seem to be doing quite a good job producing fair maps without much internal disagreement,” he said. “On the other hand, other commissions like those in Ohio and Virginia have drawn maps that favor gerrymandering, or failed to draw new maps at all.” As the United States moves toward the 2022 midterm elections, more emphasis will be placed on fair voting representation calling even greater attention to the role of independent redistricting commissions.

The State of Redistricting and the 2022 Elections

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