tag:theconversation.com,2011:/fr/topics/redistricting-12958/articlesRedistricting – The Conversation2024-02-20T13:18:28Ztag:theconversation.com,2011:article/2228592024-02-20T13:18:28Z2024-02-20T13:18:28ZHow politicians can draw fairer election districts − the same way parents make kids fairly split a piece of cake<figure><img src="https://images.theconversation.com/files/575690/original/file-20240214-20-umxbsw.jpg?ixlib=rb-1.1.0&rect=47%2C0%2C5315%2C3532&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Unchecked, politicians are likely to try to grab as much electoral power as they can.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/two-girls-playfully-inserting-their-hands-in-a-royalty-free-image/89800006">Fabrice LEROUGE/ONOKY via Getty Images</a></span></figcaption></figure><p>Redistricting – the process of determining the boundaries of election districts in which people vote – is a key element of politics that has more of an effect than people might realize. One Republican political consultant called it an election in reverse: “Usually the voters get to pick the politicians. In redistricting, the <a href="https://www.npr.org/2019/06/06/730260511/redistricting-gurus-hard-drives-could-mean-legal-political-woes-for-gop">politicians get to pick the voters</a>.”</p>
<p>In 33 states, <a href="https://ballotpedia.org/State-by-state_redistricting_procedures">legislatures draw congressional district boundaries</a>. In eight, that work is done by commissions meant to be independent from the legislatures. In two states, legislatures and commissions both play roles in the map-drawing process. The remaining seven states have just one congressional district each, so there is no need to draw district boundaries. </p>
<p>How district lines are drawn determines who wins elections and, ultimately, who holds political power. </p>
<p>With such high stakes, members of both parties have incentives to create districts that grant themselves an undue electoral advantage. The result is that one party generally ends up unhappy with the redistricting process, and voters are left with districts that may not reflect their collective will. Sometimes, parties <a href="https://apnews.com/article/elections-voting-virginia-voting-rights-census-2020-c31ebadc6f11211fb772429285474181">do not</a> even <a href="https://www.democracydocket.com/wp-content/uploads/2022/03/159-2024-01-16-pls-objection.pdf">agree</a> on who should serve as a tiebreaker or independent arbiter to resolve disputes.</p>
<p>Our research has found a way that lets politicians pick their voters, but without ending up with excessive <a href="https://blogs.loc.gov/law/2017/02/elbridge-gerry-and-the-monstrous-gerrymander/">partisan gerrymandering</a>, which is what happens when the people redrawing districts produce an election map with a clear advantage for one party or the other.</p>
<p>Several states have made efforts to combat gerrymandering, with unclear success. Take, for instance, an effort to draw new congressional districts in New York: In 2022 a redistricting commission meant to be independent from the state legislature <a href="https://www.nytimes.com/2022/01/03/nyregion/new-york-redistricting-gerrymandering.html">failed to agree on a map</a>, so the process reverted to state legislators. </p>
<p>The map legislators in the Democratic-majority statehouse drew was ruled by a court to <a href="https://www.nytimes.com/2022/04/27/nyregion/redistricting-congress-gerrymander-ny.html">favor Democrats too much</a>. A court-appointed independent expert drew a new map, which resulted in the November 2022 <a href="https://www.politico.com/2022-election/results/new-york/house/">election of several new Republican members of Congress from New York</a>. But in December 2023, a <a href="https://redistricting.lls.edu/case/hoffman-v-redistricting-commission/">court set aside the independent expert’s map</a> and ruled the <a href="https://www.politico.com/news/2024/02/15/new-house-lines-approved-in-new-york-what-would-change-00141728">independent commission should try again</a>. </p>
<p>Our method, which we detail in a new scholarly paper, requires neither <a href="https://doi.org/10.1017/pan.2023.39">cooperation between members of the two major parties</a> nor an independent arbiter to resolve disputes. By giving both parties control of a piece of the process, our method – we call it the Define-Combine Procedure, or DCP – delivers fairer maps than either party would draw on its own. We have also created a website where people can <a href="https://definecombine.com/">try our method for themselves</a>.</p>
<h2>Political fairness</h2>
<p>Many people have attempted to solve problems of political fairness and redistricting in various ways. In our approach, we looked to the age-old problem of fairly cutting a cake: How do you make sure the person cutting the cake gives everyone an equal slice? Parents will often have <a href="https://www.sciencenews.org/article/cake-cutting-math-problem-fairness-envy">one child cut the cake and the other child pick which piece they want</a>.</p>
<p>We use a similar approach to propose breaking the redistricting process into two steps, each of which is assigned to one political party. </p>
<p>In the first step, one party draws districts on the map. However, unlike regular redistricting, in which they draw the exact number of districts needed, our process requires the first party to draw twice that number of half- or sub-districts. Like full electoral districts, these half-districts must have <a href="https://www.census.gov/programs-surveys/geography/guidance/geo-areas/congressional-dist.html">equal populations</a> and be physically <a href="https://crsreports.congress.gov/product/pdf/IN/IN11618">contiguous</a>. Many states also have <a href="https://ballotpedia.org/Compactness">requirements for district compactness</a>, which would apply to this first stage of map drawing too. We also don’t allow <a href="https://www.texastribune.org/2021/10/12/texas-redistricting-doughnut-fort-hood-bell-county/">“doughnut” districts</a> – where one district is entirely surrounded by another district.</p>
<p>In the second step, the other party chooses how to pair neighboring half-districts into full-size districts.</p>
<p>Even if each party acts entirely in its own interest, attempting to maximize its own chances of winning the most districts, the fact that the process is split into these two stages holds each party’s ambitions somewhat in check. </p>
<p><iframe id="wHmsK" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/wHmsK/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Testing representation</h2>
<p>We used computer simulations to investigate how this process might work in drawing congressional districts in the 50 states. We found that our method substantially diminishes the partisan advantage that would exist when just one party controls the redistricting process. </p>
<p>For instance, in Texas, which has 38 seats in the U.S. House of Representatives, we estimate that if Republicans had complete control of the map and acted selfishly, they could draw a map with eight Democratic seats and 30 Republican seats. If Democrats were in complete control and acting selfishly, they could create a map with 28 Democratic seats and 10 Republican seats. The party in control of 20 of Texas’ seats in Congress would depend on which party drew the map.</p>
<p>Through simulating the map-drawing process under our method hundreds of thousands of times, using 2020 election results and census data, we find that Democrats would win 17 seats, while Republicans would win 19 seats, with just two seats changing hands depending on which party did which part of the two-stage process.</p>
<p>Regardless of who goes first, our method produces a more representative map. And by reducing the number of seats that swing based on party control from 20 to two, the stakes are lower, which we hope could reduce the dysfunction of the current process.</p>
<h2>A national simulation</h2>
<p>We also moved beyond one state, simulating how each party could draw districts across the nation and showing how the results would differ if either party did it unilaterally versus via our method. </p>
<p>Under traditional, one-party controlled redistricting, we find that 197 seats – almost half of the 435 in Congress – are in theory up for grabs, depending on who controls the redistricting process in each state. </p>
<p>But under our Define-Combine Procedure, the number of seats that change hands on a partisan basis drops to just 46, based on which party defines the half-districts and which one combines them into full districts.</p>
<p>Using our method of redistricting produces a fairer map. No matter which party is assigned the first step of the process, each party gets a share of districts determined more by its level of support among voters than who controls the redistricting process.</p>
<h2>A transition to a new method?</h2>
<p>We recognize that parties currently in control of the redistricting process are unlikely to give up that power by adopting our process. But there are important cases, such as in New York state, where both parties, or an independent commission, must produce a map. This happens, for instance, when judges order states to redraw their maps after a legal dispute.</p>
<p>Our method might be particularly useful in those circumstances to arrive at a map with which the parties can be equally happy – and unhappy. We hope the appeal of a process like ours will grow once it is used successfully to guide a map-drawing process. </p>
<p>In our view, fixing gerrymandering is crucial to maintaining the promise of American democracy. It is a difficult problem but not an intractable one. We suggest map drawers get back to basics and take inspiration from how we teach our children to treat each other fairly.</p><img src="https://counter.theconversation.com/content/222859/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Electoral redistricting is a high-stakes political game, so Democrats and Republicans have a hard time playing fair. When they’re made to work together, a more representative result is possible.Benjamin Schneer, Assistant Professor of Public Policy, Harvard Kennedy SchoolKevin DeLuca, Assistant Professor of Political Science, Yale UniversityMaxwell Palmer, Assistant Professor of Political Science, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2208232024-02-02T13:20:26Z2024-02-02T13:20:26ZAn independent commission is racing to redraw Detroit’s voting maps under a federal court order − but the change may not elect more Black candidates<p><em>A panel of <a href="https://michiganadvance.com/2023/12/22/bombshell-ruling-requires-13-michigan-districts-to-be-redrawn-before-2024-election/">three federal judges ruled on Dec. 21, 2023</a>, that a few state House and Senate legislative maps drawn by an independent Michigan commission <a href="https://vhdshf2oms2wcnsvk7sdv3so.blob.core.windows.net/thearp-media/documents/MI_122-cv-272_131.pdf">violate the Voting Rights Act</a>. Their ruling, which is currently under appeal to the U.S. Supreme Court, says the maps dilute Black voting power in 13 Detroit area legislative districts and those districts must be redrawn.</em></p>
<p><em>The Conversation interviewed <a href="https://scholar.google.com/citations?user=UqWM3-8AAAAJ&hl=en">Marjorie Sarbaugh-Thompson</a> and <a href="https://scholar.google.com/scholar?q=Lyke+Thompson&inst=18300112617855595941">Lyke Thompson</a>, professors of political science at Wayne State University who have written about <a href="https://doi.org/10.1007/978-3-031-42749-7_6">the redistricting commission</a>.</em> </p>
<h2>Can you tell us about the commission?</h2>
<p>The Michigan Independent Citizens Redistricting <a href="https://www.michigan.gov/micrc">Commission was created</a> by a statewide ballot initiative to purge partisan politics from redistricting. The initiative <a href="https://mielections.us/election/results/2018GEN_CENR.html">passed in 2018 with 61% support</a>. The commissioners are citizen volunteers drawn randomly from three pools of applicants: four Democrats, four Republicans and five nonpartisans. Our research found that Michigan’s commission has <a href="https://doi.org/10.1007/978-3-031-42749-7_6">more members</a> not affiliated with a political party than any other state redistricting commission.</p>
<p>The commission created 2022 district maps for Michigan’s U.S. House, state House and state Senate elections that were fair to both major political parties, <a href="https://planscore.org/plan.html?20211109T175635.174698348Z">according to PlanScore</a>, a consortium of legal, political science and mapping technology experts.</p>
<h2>How were Michigan legislative maps drawn before the commission?</h2>
<p>Michigan’s 2010 district maps were drawn by Republican politicians and have been held up as examples of extreme <a href="https://www.bridgemi.com/michigan-government/maps-show-how-gerrymandering-benefitted-michigan-republicans">partisan gerrymandering</a>. </p>
<p>These lopsided maps triggered a movement, <a href="https://votersnotpoliticians.com/">Voters Not Politicians</a>. Volunteers collected 425,000 signatures to get a constitutional amendment on the Michigan ballot to take redistricting out of the hands of politicians.</p>
<h2>How did the commission create the new maps?</h2>
<p>The commission’s <a href="https://www.michigan.gov/micrc/meeting-notices-and-materials">process was exceptionally transparent</a>. It was required to hold at least 10 public meetings to gather input prior to drawing maps; it held 16. It had to hold at least five public meetings after publishing its first drafts; it held 38. Citizens made more than 25,000 public comments at meetings or in written form.</p>
<p>The commission’s maps drawn for the 2022 election cycle did eliminate some majority Black districts in both the state Senate and House, but they more <a href="https://planscore.org/michigan/#!2022-plan-statesenate-d2">accurately reflected Michigan voters’ preferences</a> for Republican and Democratic candidates. That year, Democrats narrowly won control of both state legislative chambers <a href="https://www.detroitnews.com/story/news/politics/michigan/2022/11/09/michigan-democrats-poised-to-win-control-of-legislature-for-1st-time-in-decades/69632790007/">for the first time since 1984</a>, and the U.S. House delegation includes seven Democrats and six Republicans, an outcome that is consistent with total votes cast.</p>
<h2>Why were the new maps challenged?</h2>
<p>In 2022, a group of Detroit voters filed a lawsuit, <a href="https://www.supremecourt.gov/DocketPDF/23/23A641/295344/20240109191018938_Complete%20Appendix.pdf">Agee v. Benson</a>, challenging a few districts based on the federal Voting Rights Act. A three-judge panel ruled that 13 districts in the Detroit metro area – seven for the state House and six for the state Senate – are unconstitutional because they violate the equal protection clause, which says <a href="https://constitution.congress.gov/browse/amendment-14/">district lines cannot be drawn based solely on race</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A partial map of Michigan shows an irregular pattern of voting districts with numerical labels." src="https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=552&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=552&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=552&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=693&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=693&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572975/original/file-20240202-15-7cr8wt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=693&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The commission’s work is focused on state House districts in Metro Detroit because primaries for the House will be held in August 2024.</span>
<span class="attribution"><a class="source" href="https://www.michigan.gov/micrc/mapping-process/final-maps">MICRC</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A taupe map is blocked with black lines and boxes numbered 1 to 24." src="https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=648&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=648&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=648&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=814&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=814&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572973/original/file-20240202-23-7cr8wt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=814&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">State Senate districts in metro Detroit have been challenged as well, but the next Senate election doesn’t take place until 2026, giving mapmakers more time to work.</span>
<span class="attribution"><a class="source" href="https://www.michigan.gov/micrc/mapping-process/final-maps">MICRC</a></span>
</figcaption>
</figure>
<p>The commissioners appealed the ruling to the U.S. Supreme Court. But on Jan. 22, the high court refused to stop <a href="https://www.freep.com/story/news/politics/2024/01/22/u-s-supreme-court-wont-stop-metro-detroit-redrawn/72192857007/">the process of redrawing the maps</a>. The panel now has until Feb. 2 to present redrawn maps for public comment, with final ones due in March. The Supreme Court may still rule on the commission’s appeal – but likely not until after the state’s primary elections on Aug. 6. </p>
<h2>Why did Detroit lose majority Black districts?</h2>
<p>Each new state House district is supposed to have 91,612 residents, a number derived from dividing Michigan’s <a href="https://www.census.gov/library/stories/state-by-state/michigan-population-change-between-census-decade.html">2020 population</a> by its 110 state House districts. According to <a href="https://www.semcog.org/community-profiles/communities=5">the U.S. Census Bureau</a>, Detroit lost 93,361 Black residents over the past decade, while losing only 74,666 people in total, reflecting an <a href="https://www.semcog.org/Community-Profiles">influx of White, Latino, multiracial and Asian residents</a>. </p>
<p>One way the commission adjusted for these population shifts and provided opportunities for Black candidates was to create districts that stretched across municipal boundaries – from Detroit into Macomb and Oakland counties. These new district boundaries combined Black voters in the suburbs and Detroit, creating a large enough percentage to allow minority candidates to win elections.</p>
<p>The decline in majority Black districts in Detroit isn’t unique to the 2022 district maps. In 2012, the Michigan Legislative Black Caucus protested losing <a href="https://www.mlive.com/politics/2011/12/michigan_legislative_black_cau_1.html">two other Detroit state House districts</a>. Those losses were related to the drop in Detroit’s 2000-2010 population. In other words, the declining Black population in Detroit is a persistent demographic trend that complicates applying the Voting Rights Act. </p>
<h2>Why is it so complex to make the Voting Rights Act work in Detroit?</h2>
<p>Under the Voting Rights Act, maps can neither crack nor pack minority voters. </p>
<p><a href="https://www.supremecourt.gov/DocketPDF/23/23A641/295344/20240109191018938_Complete%20Appendix.pdf">Cracking is when minority voters</a> are spread across multiple districts, which makes it harder for them to win elections.</p>
<p><a href="https://www.supremecourt.gov/DocketPDF/23/23A641/295344/20240109191018938_Complete%20Appendix.pdf">Packing groups more minority voters</a> than are typically needed in a district to elect a minority candidate and also dilutes the number of minorities likely to be elected overall. </p>
<p>Election results demonstrate that in Southeast Michigan general election contests, many Michigan voters care more about whether a candidate is <a href="https://www.michigan.gov/micrc/-/media/Project/Websites/MiCRC/Nov82021TOJan312022/Handley_Final__Report_to_MICRC_with_Appendices.pdf">a Democrat or a Republican than their race</a>. Experts hired by the commission advised them that 35% to 45% is the sweet spot between packing and cracking Black voters in these districts. The seven House districts ordered redrawn by the court have <a href="https://www.bridgemi.com/michigan-government/experts-everything-air-now-michigan-districts-must-be-redrawn">37% to 49% Black voters</a>. </p>
<p>Black migration from Detroit to its inner-ring suburbs provided the commission a way to unpack majority-minority districts and avoid cracking Black suburban populations. For example, the Black population of Eastpointe, a suburb immediately north of Detroit in Macomb County, increased <a href="https://www.semcog.org/community-profiles/communities=3035">from 29% in 2010 to 52% in 2020</a>. </p>
<p>Black candidates won 2022 elections in <a href="http://www.ippsr.msu.edu/public-policy/michigan-wonk-blog/redistrictings-effect-black-representation-michigan">five of the seven House districts that the court has ordered redrawn</a>. But the plaintiffs in Agee v. Benson argue that it takes higher percentages of Black voters to win primaries because so many candidates run and end up splitting the vote. In two primary elections where Black candidates lost, <a href="http://www.ippsr.msu.edu/public-policy/michigan-wonk-blog/redistrictings-effect-black-representation-michigan">the votes were split</a>. In District 11, which is 44% Black voters, the ballot had nine candidates. Veronica Paiz, a Hispanic woman, won with less than 19% of the votes cast. In District 8, which has 46% Black voters, Mike McFall, a white man, won the primary with 38% of the vote against two Black candidates.</p>
<h2>So you’re suggesting too many primary candidates, not map boundaries, dilute the Black vote?</h2>
<p>Yes, that is what <a href="http://www.ippsr.msu.edu/public-policy/michigan-wonk-blog/redistrictings-effect-black-representation-michigan">the evidence suggests</a>. For example, three Black primary candidates lost in the 9th House District, which has 53% Black voters. The 5th House District with 57% Black voters attracted five primary candidates; a white woman won with 38% of the votes cast, while two Black men won 40% of the primary votes between the two of them. So changing district boundaries isn’t an effective way to solve the problem. </p>
<p>Other solutions like <a href="https://theconversation.com/what-is-ranked-choice-voting-a-political-scientist-explains-165055">ranked choice voting</a> could increase opportunities for Black primary victories, regardless of how many candidates run. This voting system is gaining popularity in places as disparate as <a href="https://alaskapublic.org/2023/09/19/north-to-the-future-alaskas-ranked-choice-voting-system-is-praised-and-criticized-nationally/">Alaska</a>, <a href="https://electionlab.mit.edu/articles/effect-ranked-choice-voting-maine">Maine</a> and <a href="https://www.thecity.nyc/2023/03/23/how-does-ranked-choice-voting-work-in-new-york-city/">New York City</a>.</p>
<h2>The new maps must be finalized by March 29. What does this mean for 2024 elections?</h2>
<p>Given the tight deadline for the commission to publish the maps, receive public comments and then vote on the maps, candidates will have a shorter window to organize primary election campaigns. Some incumbents will see their constituents shift again. And it is possible that Black voters will be packed into a smaller number of districts.</p><img src="https://counter.theconversation.com/content/220823/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marjorie Sarbaugh-Thompson gathered signatures for the ballot initiative that put the redistricting commission before voters, and donated $100 to the group Voters Not Politicians.</span></em></p><p class="fine-print"><em><span>Lyke Thompson helped gather signatures for the 2018 ballot initiative that created the citizen commission.</span></em></p>The commission has tight deadlines to finalize new maps. 2 voting rights experts explain the messy situation.Marjorie Sarbaugh-Thompson, Professor of Political Science, Wayne State UniversityLyke Thompson, Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2207692024-01-23T20:02:18Z2024-01-23T20:02:18ZMichigan selects its legislative redistricting commissioners the way the ancient Athenians did<figure><img src="https://images.theconversation.com/files/570410/original/file-20240119-21-bkynf2.jpg?ixlib=rb-1.1.0&rect=15%2C38%2C5066%2C3349&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michigan’s redistricting commission consists of ordinary citizens with no special qualifications. A court has disapproved their initial effort.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedistrictingMajorityMinorityDistricts/5137b615fc8d46858956d5ec7bff88e1/photo?boardId=c895684284c34868ab222ff6c8ee3ff0&st=boards&mediaType=audio,photo,video,graphic&sortBy=&dateRange=Anytime&totalCount=12&currentItemNo=3">AP Photo/Carlos Osorio</a></span></figcaption></figure><p>How well can ordinary citizens exercise a political function traditionally assigned to elected legislators? </p>
<p>Michigan is finding out. The state has assigned the job of drawing election districts to a group of citizens with no special qualifications. Selecting government officials by lot is a procedure <a href="https://blog.oup.com/2016/03/sortition-ancient-greece-democracy/">first employed in Athens 2,500 years ago</a>. This experiment has produced dramatic results – as well as a court challenge. </p>
<p>The Michigan experiment marks a departure from how redistricting has usually been done.</p>
<p>Every 10 years, after the U.S. Census Bureau determines how many members of the House of Representatives are allocated to each state, the states redraw the geographical districts from which members of the House, as well as members of the state legislature, are elected. Historically, state legislatures have been responsible for making these maps.</p>
<p>But throughout U.S. history, the redistricting process has been marred by <a href="https://www.americanprogress.org/issues/democracy/news/2019/10/01/475166/impact-partisan-gerrymandering/">partisan gerrymandering</a> – drawing election districts to favor the political party that controls the state legislature.</p>
<p><a href="https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0">Gerrymandering has often been challenged in court</a> as a violation of the Constitution’s equal protection clause and on other grounds. But in 2019, <a href="https://www.oyez.org/cases/2018/18-422">the U.S. Supreme Court held</a> that federal courts may not hear claims of partisan gerrymandering because they represent a “political question” that is unsuited for resolution by the courts.</p>
<p>The high court held that such issues should instead be resolved by the legislative and executive branches of government. </p>
<p><a href="https://ballotpedia.org/State-by-state_redistricting_procedures">Eight states have withdrawn the authority</a> to draw election districts from legislatures and assigned it to independent commissions. The procedures for selecting the members of these commissions vary, but in most states they are chosen by state legislators or judges. </p>
<p>Michigan’s <a href="https://www.michigan.gov/micrc">Independent Citizens Redistricting Commission</a>, created by a <a href="https://votersnotpoliticians.com/redistricting/">2018 ballot initiative</a>, is unique. As a professor who teaches <a href="https://law.wayne.edu/profile/aj8419">constitutional law</a> and, occasionally, <a href="http://dx.doi.org/10.2139/ssrn.1020397">ancient Athenian law</a>, I am fascinated by the fact that Michigan’s seemingly novel experiment in governance is based on a process that is thousands of years old. </p>
<h2>Selection by lot</h2>
<p>Unlike any other state, Michigan selected its 13 commission members almost entirely by lot from among those who applied for the position. </p>
<p>All Michigan registered voters who met the eligibility criteria, which excluded holders of political office and lobbyists, were eligible to apply. </p>
<p><a href="https://www.michigan.gov/som/0,4669,7-192-47796-532639--,00.html">From 9,367 applicants</a>, the Michigan secretary of state randomly selected 200 semifinalists. The process resulted in 60 Democrats, 60 Republicans and 80 independents. Following the procedure established by the ballot initiative, the four leaders of the Michigan Legislature then eliminated 20 of those semifinalists. </p>
<p>In August 2020, the secretary of state <a href="https://www.mlive.com/public-interest/2020/08/13-commissioners-randomly-selected-to-draw-new-district-lines-for-michigan-house-senate.html">randomly selected the 13 commissioners</a> from the remaining pool of 180 candidates – four Democrats, four Republicans and five independents, as required.</p>
<p>In a process completed in December 2021, the commission – made up of citizens with no special qualifications for the office – created election districts that were used to elect officials to the Michigan Legislature and the U.S. House of Representatives in the 2022 election cycle.</p>
<h2>Random selection in ancient Athens</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="In a formal painting, a man stands on a platform addressing a crowd. A classical white building with pillars is in the background." src="https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=477&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=477&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=477&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=599&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=599&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570739/original/file-20240122-15-jbj453.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=599&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In ancient Athens, most government officials were selected at random from among citizens eligible to fill the positions.</span>
<span class="attribution"><a class="source" href="https://www.rijksmuseum.nl/en/collection/RP-F-2001-7-864-5">Philipp Foltz</a></span>
</figcaption>
</figure>
<p>With the exception of trial juries, the random selection of citizens to fill government office is almost unheard of. But it was not always that way. </p>
<p>Random selection was a prominent <a href="https://www.ancient.eu/Athenian_Democracy/">feature of the ancient Athenian democracy</a>. In the fifth and fourth centuries B.C., most important government offices were filled by lottery. The Athenians considered this selection of officials a hallmark of democracy.</p>
<p>These included the <a href="http://www.stoa.org/demos/article_democracy_overview@page=6&greekEncoding=UnicodeC.html">500 members of the Council</a>. This body proposed legislation for the agenda of the Assembly, composed of all free male adult citizens who chose to attend and the centerpiece of Athenian direct democracy. It also handled diplomatic relations between Athens and other states and appointed the members of administrative bodies. </p>
<p>Those selected by lot also included the nine chief officials of the city-state, <a href="https://erenow.net/ancient/ancient-greece-and-rome-an-encyclopedia-for-students-4-volume-set/268.php">the archons</a>, who had executive and judicial responsibilities. About 1,100 officials were selected annually by lot from a citizen population of about 25,000. </p>
<p>The Athenian historian Xenophon tells us that the philosopher Socrates, who was sentenced to death by an Athenian jury for his unorthodox views, thought that the Athenians were foolish to entrust the selection of the bulk of government officials to chance: <a href="http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0208%3Abook%3D1%3Achapter%3D2%3Asection%3D9">Nobody would select “a pilot or builder or flautist by lot</a>,” Socrates observed, so why trust to chance the selection of government officials who, if unsuited to their responsibilities, could harm the community?</p>
<p>The Athenians agreed with Socrates to an extent. In Athens, an additional 100 or so officials were elected by the Assembly, not selected by lot. They included the 10 generals responsible for commanding the army and navy. The Athenians thought the generals’ role was too important, and too dependent on skills possessed by few citizens, to allow the choice to be made randomly.</p>
<h2>How did Michigan’s redistricting commission do?</h2>
<p>Like piloting a ship or commanding an army, districting is a complex task. The <a href="http://tinyurl.com/bdfm4yut">2018 amendment to the Michigan Constitution</a> that established the commission says that the districts must be drawn in compliance with federal law. That includes a requirement that voting districts have roughly the same populations. It also requires that the districts “reflect the state’s diverse population and communities of interest” and “not provide a disproportionate advantage to any political party.”</p>
<p>Dividing the map to meet all of these criteria is not within the capabilities of a group of randomly selected citizens. Recognizing this, the 2018 amendment authorizes the commission to hire “independent, nonpartisan subject-matter experts and legal counsel” to assist them. The experts that the commission hired <a href="https://www.bridgemi.com/michigan-government/redistricting-experts-tell-court-we-followed-law-michigan-maps">guided its members closely</a> throughout the redistricting process.</p>
<p>The outcome of the 2022 elections supports a conclusion that the commission achieved the goals that motivated its creation. </p>
<p>A <a href="https://www.michiganradio.org/post/report-quantifies-michigans-very-real-gerrymandering-problem">2018 report</a> by the nonpartisan Citizens Research Council of Michigan found that the state’s election districts were “highly-gerrymandered, with current district maps drawn so that Republicans are ensured disproportionate majorities on both the state and federal levels.” In 2019 a <a href="https://www.detroitnews.com/story/news/politics/2019/04/25/michigan-gerrymandering/3576663002/">federal court</a> held that Michigan’s gerrymandering violated the U.S. Constitution. That opinion was later vacated, or canceled, for jurisdictional reasons. </p>
<p>This gerrymandering was reflected in election results. In recent elections preceding the 2022 redistricting, Democratic candidates for the Michigan House of Representatives received a majority of the votes cast, yet <a href="https://votersnotpoliticians.com/voters-won-in-michigan-this-year-and-fair-maps-made-the-difference/">a majority of the candidates elected were Republican</a>. But in the 2022 elections, the first held using the redistricting commission’s maps, Democratic candidates for both the Michigan Senate and House won a majority of the votes and were awarded a majority of the seats: <a href="https://www.nytimes.com/interactive/2022/11/08/us/elections/results-michigan.html">20-18 in the Senate and 56-54 in the House</a>. Democrats control both houses of the state Legislature for <a href="https://michiganadvance.com/2022/11/09/democrats-wrest-control-of-michigan-legislature-for-first-time-in-almost-40-years/">the first time since 1984</a>.</p>
<h2>Legal challenge to redistricting commission’s maps</h2>
<p>While the redistricting commission can claim success in eliminating the state’s partisan gerrymandering, in December 2023 <a href="https://law.justia.com/cases/federal/district-courts/michigan/miwdce/1:2022cv00272/104360/131/">a federal district court held</a> that the procedure the commission followed in drawing some of the election districts violated the U.S. Constitution. </p>
<p>The court said that the commission violated the equal protection clause when it drew boundaries for seven state House and six state Senate districts in metro Detroit in such a way that <a href="https://www.bridgemi.com/michigan-government/experts-everything-air-now-michigan-districts-must-be-redrawn">the voting power of Black voters was diluted</a>. </p>
<p>The commission filed an appeal with the U.S. Supreme Court, but the court <a href="https://www.detroitnews.com/story/news/politics/2024/01/22/michigan-redistricting-commission-us-supreme-court-redraw-house-senate-district-boundaries/72272380007/">denied the commission’s request for a stay</a> of the lower court’s order. The commission is now working to redraw the districts, and the lower court has ordered it to have a draft of the state House districts ready for public comment by Feb. 2. Time is now of the essence, since under state law the candidate filing deadline is April 23.</p>
<p><em>Portions of this article originally appeared in <a href="https://theconversation.com/michigans-effort-to-end-gerrymandering-revives-a-practice-rooted-in-ancient-athens-143892">an article published on Sept. 30, 2020</a>.</em></p><img src="https://counter.theconversation.com/content/220769/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Rothchild does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A battle over the voting districts in Detroit has landed in the Supreme Court, but any ruling may come too late for 2024 state elections.John Rothchild, Professor of Law, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2145132023-09-29T12:24:47Z2023-09-29T12:24:47ZUS Supreme Court refuses to hear Alabama’s request to keep separate and unequal political districts<figure><img src="https://images.theconversation.com/files/550729/original/file-20230927-19-k90mbt.jpg?ixlib=rb-1.1.0&rect=1459%2C308%2C3947%2C3291&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Alabama Attorney General Steve Marshall stands in front of the U.S. Supreme Court building on Oct 4, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-of-alabama-steve-marshall-speaks-to-news-photo/1430435175?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p>For the <a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-rejects-alabamas-bid-use-congressional-map-just-one-majo-rcna105688">second time</a> in three months, the U.S. Supreme Court has rebuffed Alabama’s attempts to advance its legislature’s congressional maps that federal courts have ruled harm Black voters.</p>
<p>The court had first <a href="https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf">rejected the maps</a> in its stunning June 8, 2023, decision that upheld the Voting Rights Act of 1965. But in an act of defiance, Alabama lawmakers resubmitted maps that didn’t include what the court had urged them to do – create a second political district in which Black voters could reasonably be expected to choose a candidate of their choice. </p>
<p>On Sept. 26, the court put those Alabama plans on hold and <a href="https://www.npr.org/2023/09/26/1200906844/supreme-court-alabama-voting-case">refused to stop</a> a three-judge federal court panel’s plan to choose the maps Alabama will use in its 2024 elections from among a set of three maps drawn by a court-appointed <a href="https://www.cnn.com/2023/09/25/politics/alabama-redistricting-special-master-map-proposals/index.html">special master</a>. </p>
<p>One of those maps includes the creation of a second congressional district that has a majority of Black voters, and the other two would increase the percentage of Black voters in an existing district to give them a reasonable chance of electing candidates of their own choosing. </p>
<p>Currently, only one of Alabama’s seven congressional districts is majority Black, although Black residents make up 27% of the state’s population and <a href="https://www.naacpldf.org/case-issue/merrill-v-milligan-faq/">voting rights advocates</a> argued that their numbers suggest they should control at least two of the state’s congressional districts. </p>
<p>On Sept. 5, the panel of three <a href="https://www.documentcloud.org/documents/23936075-milligan-2023-09-05-order">federal judges</a> rebuked the Alabama Legislature when it ruled that the state’s <a href="https://apnews.com/article/alabama-redistricting-ruling-black-population-affd7b662f65b0b28da42fb88f72207e">proposed voting districts</a> failed to create the second Black district. </p>
<p>The federal judges wrote they were “deeply troubled” that Alabama lawmakers submitted a new plan that did not adhere to previous court rulings, including <a href="https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf">one issued</a> by the U.S. Supreme Court on June 8.</p>
<p>“The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice,” the three judges wrote, adding that the state’s new plan “plainly fails to do so.” </p>
<h2>A surprising decision to protect Black voters</h2>
<p><a href="https://www.npr.org/2023/09/05/1193749552/alabama-congressional-map">For the 2024 elections</a>, the federal panel of judges assigned a special master to draw three potential maps that each include two districts where Black voters have a realistic opportunity of electing their preferred candidate. Those redistricting proposals were submitted on Sept. 25, 2023.</p>
<p>Alabama officials have <a href="https://www.nytimes.com/2023/09/05/us/politics/alabama-congressional-map.html">denied any wrongdoing</a> and said their proposed voting districts, including one where the percentage of Black voters jumped from about 30% to 40%, were in compliance with recent federal court rulings. </p>
<p>After losing its latest appeal on Sept. 26, <a href="https://www.wsfa.com/2023/09/26/alabamas-ag-reacts-supreme-courts-redistricting-map-decision/">Alabama Attorney General Steve Marshall</a>, a Republican, still argued that the maps the state has drawn should have been upheld by the Supreme Court.</p>
<p>“It is now clear that none of the maps proposed by Republican super-majorities had any chance of success,” <a href="https://whnt.com/news/alabama-news/alabama-ag-steve-marshalls-says-map-fight-continues-despite-supreme-court-loss/">Marshall said in a statement</a>. “Treating voters as individuals would not do. Instead, our elected representatives and our voters must apparently be reduced to skin color alone.”</p>
<p>At issue in the Alabama case is whether the power of Black voters was diluted by dividing them into districts where white voters dominate. </p>
<p>After the 2020 census, the Republican-controlled Alabama Legislature <a href="https://news.yahoo.com/supreme-court-rules-favor-black-142654715.html">redrew the state’s seven congressional districts</a> to include only one in which Black voters would likely be able to elect a candidate of their choosing. </p>
<p>In its <a href="https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf">surprising ruling on June 8</a>, the Supreme Court jettisoned Republican-drawn congressional districts in Alabama that a federal district court in Alabama had ruled in 2022 discriminated against Black voters and <a href="https://www.scotusblog.com/election-law-explainers/section-2-of-the-voting-rights-act-vote-dilution-and-vote-deprivation/">violated Section 2</a> of the <a href="https://www.archives.gov/milestone-documents/voting-rights-act">Voting Rights Act of 1965</a>.</p>
<p>The court relied on a nearly 40-year-old, seminal case, <a href="https://www.oyez.org/cases/1985/83-1968">Thornburg v. Gingles</a>, that determined a state should typically draw a majority-minority district if <a href="https://ballotpedia.org/Thornburg_v._Gingles">three conditions</a> are met: </p>
<p>First, if the racial minority can be a majority in a reasonably drawn district. </p>
<p>Second, if the racial minority is politically cohesive, meaning that its members tend to vote together for the same candidates.</p>
<p>And third, if the racial minority faces <a href="https://www.mississippifreepress.org/33699/alabama-violated-black-voters-rights-u-s-supreme-court-rules">bloc voting by a racial majority</a> that tends to defeat the racial minority’s candidate of choice. </p>
<figure class="align-center ">
<img alt="Five men and four women are wearing black robes as they pose for a portrait." src="https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Supreme Court, from left in front row: Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan; and from left in back row: Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/united-states-supreme-court-associate-justice-sonia-news-photo/1431388794?phrase=us%20supreme%20clarence%20thomas&adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<p>All three conditions were true in Alabama, and the totality of the circumstances suggested minority voters did not participate equally in the political process in the area.</p>
<p>In his opinion, Chief Justice John Roberts explained how racially motivated voter suppression in the century after the Civil War led to the initial passage of the <a href="https://www.archives.gov/milestone-documents/voting-rights-act">Voting Rights Act of 1965</a>. </p>
<p>While the Supreme Court did not explicitly order the state to create a second majority-Black congressional district, Roberts made it clear how he viewed the long history of racist voter suppression in Alabama – and what factors should weigh prominently in the state’s new political map.</p>
<p>“A district is not equally open,” Roberts wrote, “when minority voters face – unlike their majority peers – bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.” </p>
<p>Given the Supreme Court’s recent history of restricting rights protected under the landmark Voting Rights Act of 1965 – and <a href="https://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222/">Roberts’ past opposition</a> – Roberts’ opinion surprised many civil and voting rights advocates. </p>
<p>“States shouldn’t let race be the primary factor in deciding how to draw boundaries, but it should be a consideration,” Roberts wrote. “The line we have drawn is between consciousness and predominance.”</p>
<h2>What Alabama did</h2>
<p>In its case before the federal panel, the <a href="https://apnews.com/article/alabama-redistricting-ruling-black-population-affd7b662f65b0b28da42fb88f72207e">state argued </a> that its proposed map complied with the Voting Rights Act of 1965 and the Supreme Court decision.</p>
<figure class="align-center ">
<img alt="A black and white poster urges Black residents to vote." src="https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A poster encouraging African Americans to vote in Selma, Ala., during the 2020 presidential election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vote-or-die-headline-on-a-poster-to-encourage-african-news-photo/1225712000?adppopup=true">Barry Lewis/InPictures via Getty Images</a></span>
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</figure>
<p>State lawyers <a href="https://www.politico.com/news/2023/09/05/court-throws-out-alabama-gop-congressional-map-for-violating-voting-rights-act-00113962">further argued</a> that the Legislature was not required to create a second majority-Black district if doing so would require ignoring traditional redistricting principles, such as keeping communities of interest together.</p>
<p>In its decisions on Alabama’s redistricting, the Supreme Court upheld laws that were designed to protect minority voting power for the last nearly four decades. </p>
<p>The same is true with the three-judge court’s ruling on Sept. 5.</p>
<p>It reaffirmed the legal doctrine that requires jurisdictions to draw majority-minority districts in a narrow set of circumstances in which failing to do would leave minority voters unable to protect their interests through their voting power. </p>
<p>Given Alabama’s long-standing history of suppressing the votes of its Black citizens, the Supreme Court still may not have written its last word on race and redistricting. The court is scheduled in October 2023 to hear a similar case involving <a href="https://www.nytimes.com/2023/05/15/us/politics/supreme-court-south-carolina-voting-map.html">South Carolina’s voting districts</a>. </p>
<p><em>This story has been updated from the <a href="https://theconversation.com/alabamas-defiant-new-voting-map-rejected-by-federal-court-after-republicans-ignored-the-supreme-courts-directive-to-add-a-second-majority-black-house-district-207449">original version</a> published on Sept. 6, 2023.</em></p><img src="https://counter.theconversation.com/content/214513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry L. Chambers Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Since 2020, Alabama lawmakers have failed to draw political districts that give Black voters an equal chance of selecting political candidates that represent their interests.Henry L. Chambers Jr., Professor of Law, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2074492023-09-06T12:23:36Z2023-09-06T12:23:36ZAlabama’s defiant new voting map rejected by federal court – after Republicans ignored the Supreme Court’s directive to add a second majority-Black House district<figure><img src="https://images.theconversation.com/files/546528/original/file-20230905-28402-xuho6l.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C5864%2C3924&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Evan Milligan, plaintiff in an Alabama case that could have far-reaching effects on minority voting power across the U.S., speaks outside the U.S. Supreme Court on Oct. 4, 2022.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VotingRightsAct/1a7ba763f8b54408970191fb23123e5d/photo?Query=Alabama%20voting&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1686&currentItemNo=32">AP Photo/Patrick Semansky, File</a></span></figcaption></figure><p>In a rebuke of the Alabama legislature, a panel of three <a href="https://www.documentcloud.org/documents/23936075-milligan-2023-09-05-order">federal judges rejected</a> on Sept. 5, 2023, the state’s proposed voting districts that failed to create a second district where Black voters could elect a political candidate of their choice.</p>
<p>In rejecting the <a href="https://apnews.com/article/alabama-redistricting-ruling-black-population-affd7b662f65b0b28da42fb88f72207e">legislature’s proposed voting districts</a> for the second time since 2022, the federal judges wrote they were “deeply troubled” that Alabama lawmakers submitted a new plan that did not adhere to previous court rulings, including one issued by the U.S. Supreme Court on June 8, 2023.</p>
<p>“The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice,” the three judges wrote, adding that the state’s new plan “plainly fails to do so.”</p>
<p><a href="https://www.npr.org/2023/09/05/1193749552/alabama-congressional-map">For the 2024 elections</a>, the judges have assigned court-appointed experts and a special master to draw three potential maps that each include two districts where Black voters have a realistic opportunity of electing their preferred candidate. Those redistricting proposals are due to the court by Sept. 25.</p>
<p>Alabama officials have <a href="https://www.nytimes.com/2023/09/05/us/politics/alabama-congressional-map.html">denied any wrongdoing</a> and said their proposed voting districts, including one where the percentage of Black voters jumped from about 30% to 40%, were in compliance with recent federal court rulings. The state is expected to appeal the panel’s latest ruling to the U.S. Supreme Court.</p>
<p>“We strongly believe that the Legislature’s map complies with the Voting Rights Act and the recent decision of the U.S. Supreme Court,” Alabama Attorney General Steven Marshall, a Republican, <a href="https://www.cnn.com/2023/09/05/politics/alabama-congressional-district/index.html">said in a statement</a>. “We intend to promptly seek review from the Supreme Court to ensure that the State can use its lawful congressional districts in 2024 and beyond.”</p>
<h2>A surprising decision to protect Black voters</h2>
<p>At issue in the Alabama case was whether the power of Black voters was diluted by dividing them into districts where white voters dominate. </p>
<p>After the 2020 census, the Republican-controlled Alabama legislature <a href="https://news.yahoo.com/supreme-court-rules-favor-black-142654715.html">redrew the state’s seven congressional districts</a> to include only one in which Black voters would likely be able to elect a candidate of their choosing. </p>
<p>Black residents comprise about 27% of the state’s population, and <a href="https://www.naacpldf.org/case-issue/merrill-v-milligan-faq/">voting rights advocates</a> argued that their numbers suggest they should control two congressional districts. </p>
<p>In its <a href="https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf">surprising ruling on June 8</a>, the U.S. Supreme Court jettisoned Republican-drawn congressional districts in Alabama that a federal district court in Alabama had ruled in 2022 discriminated against Black voters and <a href="https://www.scotusblog.com/election-law-explainers/section-2-of-the-voting-rights-act-vote-dilution-and-vote-deprivation/">violated Section 2</a> of the <a href="https://www.archives.gov/milestone-documents/voting-rights-act">Voting Rights Act of 1965</a>.</p>
<p>The court relied on a nearly 40-year-old, seminal case, <a href="https://www.oyez.org/cases/1985/83-1968">Thornburg v. Gingles</a>, that determined a state should typically draw a majority-minority district if <a href="https://ballotpedia.org/Thornburg_v._Gingles">three conditions</a> are met: </p>
<p>First, if the racial minority can be a majority in a reasonably drawn district. Second, if the racial minority is politically cohesive, meaning that its members tend to vote together for the same candidates. And third, if the racial minority faces <a href="https://www.mississippifreepress.org/33699/alabama-violated-black-voters-rights-u-s-supreme-court-rules">bloc voting by a racial majority</a> that tends to defeat the racial minority’s candidate of choice. </p>
<figure class="align-center ">
<img alt="Five men and four women are wearing black robes as they pose for a portrait." src="https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508673/original/file-20230207-29-owvlbb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Supreme Court, from left in front row: Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan; and from left in back row: Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/united-states-supreme-court-associate-justice-sonia-news-photo/1431388794?phrase=us%20supreme%20clarence%20thomas&adppopup=true">Alex Wong/Getty Images</a></span>
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<p>All three conditions were true in Alabama, and the totality of the circumstances suggested minority voters did not participate equally in the political process in the area.</p>
<p>In his opinion, Chief Justice John Roberts explained how racially motivated voter suppression in the century after the Civil War led to the initial passage of the <a href="https://www.archives.gov/milestone-documents/voting-rights-act">Voting Rights Act of 1965</a>. </p>
<p>While the Supreme Court did not explicitly order the state to create a second majority-Black congressional district, Roberts made it clear how he viewed the long history of racist voter suppression in Alabama – and what factors should weigh prominently in the state’s new political map.</p>
<p>“A district is not equally open,” Roberts wrote, “when minority voters face – unlike their majority peers – bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.” </p>
<p>Given the Supreme Court’s recent history of restricting rights protected under the landmark Voting Rights Act of 1965 – and <a href="https://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222/">Roberts’ past opposition</a> – Roberts’ opinion surprised many civil and voting rights advocates. </p>
<p>“States shouldn’t let race be the primary factor in deciding how to draw boundaries, but it should be a consideration,” Roberts wrote. “The line we have drawn is between consciousness and predominance.”</p>
<h2>What Alabama did</h2>
<p>In its case before the federal panel, the <a href="https://apnews.com/article/alabama-redistricting-ruling-black-population-affd7b662f65b0b28da42fb88f72207e">state argued </a> that its proposed map complied with the Voting Rights Act of 1965 and the Supreme Court decision.</p>
<figure class="align-center ">
<img alt="A black and white poster urges Black residents to vote." src="https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/546522/original/file-20230905-29-v7yray.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A poster encouraging African Americans to vote in Selma, Ala., during the 2020 presidential election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vote-or-die-headline-on-a-poster-to-encourage-african-news-photo/1225712000?adppopup=true">Barry Lewis/InPictures via Getty Images</a></span>
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<p>State lawyers <a href="https://www.politico.com/news/2023/09/05/court-throws-out-alabama-gop-congressional-map-for-violating-voting-rights-act-00113962">further argued</a> that the legislature was not required to create a second majority-Black district if doing so would require ignoring traditional redistricting principles, such as keeping communities of interest together.</p>
<p>In its decision on Alabama’s redistricting, the Supreme Court upheld laws that were designed to protect minority voting power for the last nearly four decades. </p>
<p>The same is true with the three-judge court’s ruling on Sept. 5, 2023. </p>
<p>It reaffirmed the legal doctrine that requires jurisdictions to draw majority-minority districts in a narrow set of circumstances in which failing to do would leave minority voters unable to protect their interests through their voting power. </p>
<p>Given Alabama’s long-standing history of suppressing the votes of its Black citizens, the Supreme Court may not have written its last word on race and redistricting in this case.</p><img src="https://counter.theconversation.com/content/207449/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry L. Chambers Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Since 2020, Alabama lawmakers have failed to draw political districts that give Black voters an equal chance of selecting political candidates that represent their interests.Henry L. Chambers Jr., Professor of Law, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2104992023-07-27T12:26:30Z2023-07-27T12:26:30ZAlabama is not the first state to defy a Supreme Court ruling: 3 essential reads on why that matters<figure><img src="https://images.theconversation.com/files/539643/original/file-20230726-25-q9sqyp.jpg?ixlib=rb-1.1.0&rect=596%2C571%2C2890%2C3214&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police officers patrolling the front of the Supreme Court building.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/police-officers-with-the-u-s-supreme-court-detain-a-man-who-news-photo/1504442811?adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p>In its 5-4 <a href="https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf">Allen v. Milligan</a> decision on June 8, 2023, the U.S. Supreme Court ordered the state of Alabama to redraw its congressional voting districts and consider race as it made up the new districts. The court had found that the state’s political districts diluted the strength of Black voters by denying them the possibility of electing a second Black member to the state’s congressional delegation.</p>
<p>While the court did not specifically order the state to create a second majority-Black congressional district, Chief Justice John Roberts made it clear how he viewed the long history of racist voter suppression in Alabama – and what factors should weigh prominently in the state’s new political map. </p>
<p>“States shouldn’t let race be the primary factor in deciding how to draw boundaries, but it should be a consideration,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf">Roberts wrote</a>. “The line we have drawn is between consciousness and predominance.”</p>
<p>Alabama state officials <a href="https://www.npr.org/2023/07/21/1189494854/alabama-redistricting-map-black-districts">submitted the state’s new boundaries</a> by the Republican-controlled state legislature in late July.</p>
<p>But the new districts still <a href="https://www.npr.org/2023/06/08/1181002182/supreme-court-voting-rights">include only one in which Black voters could reasonably elect</a> a candidate of their own choosing, not two as voting rights advocates had argued – and as the Supreme Court appeared to endorse. </p>
<p>Over the years, The Conversation U.S. has published numerous stories exploring the consequences of not complying with court rulings and what resistance, including resistance to decisions involving race, does to the legitimacy of America’s legal system. Here are selections from those articles. </p>
<h2>1. When the Supreme court loses Americans’ loyalty</h2>
<p>As political scientists <a href="https://people.tamu.edu/%7Ejura/">Joseph Daniel Ura</a> of Texas A&M and <a href="https://politicalscience.nd.edu/people/matthew-e-k-hall/">Matthew Hall</a> of Notre Dame <a href="https://theconversation.com/when-the-supreme-court-loses-americans-loyalty-chaos-even-violence-can-follow-192384">wrote</a>, the Supreme Court’s 1954 decision in Brown v. Board of Education revealed “white Americans’ tenuous loyalty” to the authority of the federal judiciary.</p>
<p>In Brown, the court unanimously held that racial segregation in public education violates the equal protection clause of the 14th Amendment. </p>
<p>“Rather than recognizing the court’s authoritative interpretation of the Constitution,” Ura and Hall explained, “many white Americans participated in an extended, violent campaign of resistance to the desegregation ruling.”</p>
<p>The result of such resistance is clear. “Eroding legitimacy means that government officials and ordinary people become increasingly unlikely to accept public policies with which they disagree,” they wrote. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/when-the-supreme-court-loses-americans-loyalty-chaos-even-violence-can-follow-192384">When the Supreme Court loses Americans' loyalty, chaos – even violence – can follow</a>
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</p>
<hr>
<h2>2. Oklahoma resists ruling over tribal authority</h2>
<p>In June 2020, the Supreme Court decided in <a href="https://casetext.com/case/mcgirt-v-oklahoma/">McGirt v. Oklahoma</a> that the Muscogee Creek reservation in Oklahoma is Indian Country. </p>
<p>As an <a href="https://law.wayne.edu/profile/ew9862">expert in federal Indian law</a> at Wayne State University, Kirsten Matoy Carlson <a href="https://theconversation.com/oklahoma-state-officials-resist-supreme-court-ruling-affirming-tribal-authority-over-american-indian-country-175726">wrote</a> that the ruling meant federal criminal laws applied to much of eastern Oklahoma as Indian Country and enabled the federal government – instead of the state of Oklahoma – to prosecute crimes committed by and against American Indians there.</p>
<p>Oklahoma state officials refused to comply and <a href="https://www.muskogeephoenix.com/news/oklahoma-ag-wants-people-released-on-mcgirt-back-in-custody/article_51421619-03db-5a48-9f42-6de3cfc455da.html">actively resisted</a> implementation of the McGirt decision. They asked the Supreme Court to reverse it over 40 times.</p>
<p>The strategy paid off. The U.S. Supreme Court took up a similar case and in June 2022, decided to roll back some of its 2020 decision. </p>
<p>As Carlson wrote, “Conflicts between state and tribal governments are not new; states have long tried to assert power – often violently – over sovereign tribes.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/oklahoma-state-officials-resist-supreme-court-ruling-affirming-tribal-authority-over-american-indian-country-175726">Oklahoma state officials resist Supreme Court ruling affirming tribal authority over American Indian country</a>
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</em>
</p>
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<h2>3. Court’s power may pose a danger to its legitimacy</h2>
<p>Political scientist <a href="https://polisci.utk.edu/faculty/pacelle.php">Richard L. Pacelle Jr.</a> at University of Tennessee, Knoxville has examined how the power and authority of the court have waxed and waned over the centuries. </p>
<p>“That immense power has arguably made the court a leading player in enacting policy in the U.S,” <a href="https://theconversation.com/the-supreme-courts-immense-power-may-pose-a-danger-to-its-legitimacy-168600">Pacelle wrote</a>. “It may also cause the loss of the court’s legitimacy, which can be defined as popular acceptance of a government, political regime or system of governance.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-supreme-courts-immense-power-may-pose-a-danger-to-its-legitimacy-168600">The Supreme Court's immense power may pose a danger to its legitimacy</a>
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</em>
</p>
<hr>
<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives</em>.</p><img src="https://counter.theconversation.com/content/210499/count.gif" alt="The Conversation" width="1" height="1" />
As a powerful branch of government, the Supreme Court has enormous power over public policy only if defendants comply with its rulings.Howard Manly, Race + Equity Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2014542023-03-28T12:16:07Z2023-03-28T12:16:07ZWhen it comes to explaining elections in Congress, gerrymandering is overrated<figure><img src="https://images.theconversation.com/files/517245/original/file-20230323-1499-zruol1.jpeg?ixlib=rb-1.1.0&rect=8%2C0%2C5861%2C3907&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A voter casts his ballot at an early voting location in Alexandria, Va., Sept. 26, 2022. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/YE2022NotebookPoliticalPolarization/c72b8665161a4480b08712cb24c5f2ee/photo?Query=voting%20U.S.%202022&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5052&currentItemNo=209">AP Photo/Andrew Harnik</a></span></figcaption></figure><p>Over the past decade, <a href="https://www.bostonglobe.com/opinion/2017/07/09/gerrymandering-unfair-and-unjust/frvQvECvoJOmLH8nx0Gz1M/story.html">a consistent refrain</a> in discussions of politics has been that <a href="https://www.law.cornell.edu/wex/gerrymander">partisan gerrymandering</a> – the drawing of congressional district lines to <a href="https://www.britannica.com/topic/gerrymandering">disproportionately advantage one party</a> over the other – is unfair and distorts the balance of power in Congress. </p>
<p><a href="https://publicintegrity.org/politics/elections/who-counts/ohio-votes-under-extreme-gerrymandering-that-favors-republicans/">Democrats in particular have complained</a> that the process advantages Republicans. Republicans have been quick to blame Democrats for the same thing in <a href="https://www.washingtonpost.com/opinions/2022/03/29/maryland-democrats-gerrymandering-map-thrown-out/">states such as Maryland</a>.</p>
<p>But ultimately, the parties’ efforts to gain a seat advantage in the most recent round of redistricting ended up <a href="https://projects.fivethirtyeight.com/redistricting-alternate-maps/">mostly</a> in a <a href="https://www.washingtonpost.com/politics/2022/09/22/gerrymandering-midterms-democrats-republicans/">wash</a> – and 2022’s razor-thin midterm election results reflected this. </p>
<p>As <a href="https://scholar.google.com/citations?user=FeSk64QAAAAJ&hl=en">a political scientist</a> who studies Congress, elections and political representation, I know that redistricting is both more complex and less nefariously partisan than many commentators give it credit for. The truth is that gerrymandering has always been overrated as an explanation of election outcomes in Congress. </p>
<p>Let’s run through some of the reasons.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in front of a white stone building with columns, wearing a baseball cap holding a sign 'End gerrymandering in Maryland.'" src="https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/517232/original/file-20230323-16-1i19ef.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters gather outside the Supreme Court in 2019 to argue that gerrymandering is manipulating elections.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/organizations-and-individuals-gathered-outside-the-supreme-news-photo/1133036023?adppopup=true">Aurora Samperio/NurPhoto via Getty Images</a></span>
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</figure>
<h2>Does gerrymandering skew election outcomes?</h2>
<p><a href="https://constitution.congress.gov/browse/essay/artI-S2-C1-1/ALDE_00001031/">The Constitution requires</a> that every 10 years, following the decennial census, states redraw the geographic boundaries of congressional districts. The purpose is largely to make sure the districts are as equal as possible based on population. </p>
<p>Most states <a href="https://redistricting.lls.edu/redistricting-101/who-draws-the-lines/">rely on their state legislatures</a> to draw these lines. Critics of this process charge that in many cases, this results in gerrymandering: the drawing of districts specifically to maximize the number of seats for the party that controls the legislature. </p>
<p>In many individual states, partisan majorities in state legislatures have drawn boundaries that result in congressional delegations that don’t reflect the statewide vote. In 2021, for example, <a href="https://www.cnn.com/interactive/2022/politics/us-redistricting/south-carolina-redistricting-map/">Republicans in South Carolina drew districts</a> that handed their party six out of the delegation’s seven seats in Congress, despite the party’s <a href="https://www.cnn.com/election/2020/results/state/south-carolina/president">winning only 56%</a> of the vote in 2020’s presidential election. </p>
<p>Democrats in Illinois, meanwhile, <a href="https://www.nbcnews.com/politics/2020-elections/illinois-results">won 59% of the presidential vote</a> in 2020; but after the 2022 midterm elections, <a href="https://ballotpedia.org/United_States_congressional_delegations_from_Illinois">they occupy 82%</a> of the state’s congressional delegation, or 14 out of 17 seats, thanks to the heavily Democratic state Legislature’s redistricting. </p>
<p>The fact that both parties excel at gerrymandering meant that their efforts before the 2022 midterms essentially canceled each other out. As a result, the balance of seats in the new Congress largely matches the national political climate in the midterms. In <a href="https://www.washingtonpost.com/election-results/2022/house/">2022, Republicans won 51%</a> of House seats, and <a href="https://www.nytimes.com/2022/12/13/upshot/2022-republicans-midterms-analysis.html">51% of the nationwide popular vote</a> for Congress.</p>
<p>These numbers present a problem for gerrymandering critics, particularly those <a href="https://thehill.com/opinion/judiciary/3749510-partisan-redistricting-gave-republicans-control-of-the-house-will-a-conservative-supreme-court-take-that-advantage-back/">blaming it</a> for the Democrats’ current minority status in Congress. If gerrymandering were significantly advantaging one or the other party, these numbers would not match up.</p>
<p>But this alignment between seats and votes isn’t a new trend. In the three most recent Congresses, the balance of congressional seats between the two parties is nearly identical to the percentage of the vote each party received nationwide in congressional races. In the 2018 midterms, for example, Democrats won <a href="https://www.cookpolitical.com/analysis/house/house-charts/2018-house-popular-vote-tracker">54% of congressional votes nationwide</a>, and ended up with <a href="https://history.house.gov/Congressional-Overview/Profiles/116th/">54% of the seats</a> in the House. </p>
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<p>Data I’ve collected for other cycles does show a discrepancy between seats and votes during the Obama years, and it’s probably true that the redistricting process before 2012 cost Democrats a few seats in that decade.</p>
<p>But gerrymandering hasn’t always benefited Republicans: Democrats enjoyed a bigger and more sustained advantage from their district boundaries during the 1970s and 1980s. And if gerrymandering was ever the main cause of Democrats’ seat disadvantage in the House, it’s not today. </p>
<h2>Geography matters, just not the way you think</h2>
<p>Democrats and their allies have been particularly outspoken in their disparagement of gerrymandering, in some cases using some of the same fatalistic language about elections as former President Donald Trump. </p>
<p>For example, one argument during the Obama years was that gerrymandering made it “<a href="https://www.thedailybeast.com/why-its-impossible-for-democrats-to-win-the-house">impossible</a>” for Democrats to win the House. Sometimes the <a href="https://captimes.com/opinion/paul-fanlund/opinion-supreme-court-election-is-a-chance-to-beat-the-far-right-at-its-long/article_af9b5d76-a584-54ad-9226-7c9d7a806d12.html">language mirrored Trump’s</a> — that gerrymandering had “<a href="https://slate.com/news-and-politics/2022/11/the-midterms-are-about-courts-rigging-the-outcome.html">rigged</a>” congressional elections in favor of Republicans. </p>
<p>Aside from the <a href="https://www.nytimes.com/interactive/2022/10/13/us/politics/republican-candidates-2020-election-misinformation.html">well-demonstrated dangers</a> of casting doubt on the nation’s election systems, the evidence simply doesn’t support this doomsday perspective. Democrats do have major problems with geography, but they run much deeper than unfairly drawn lines. </p>
<p>Over the past 30 years, U.S. counties have <a href="https://www.politico.com/interactives/2022/20-counties-that-will-decide-the-2022-midterm-elections/">consistently become less competitive</a> between the parties in presidential elections. </p>
<p>In 1992, the vast majority of counties were won by slim margins, and thus winnable by either party. Only 1 in 3 counties was won by either party by more than 10 percentage points. </p>
<p>But today, the story is the opposite. Nearly 4 out of every 5 counties in 2020 were won decisively – by 10 points or more – by either Joe Biden or Donald Trump.</p>
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<p>The problem for Democrats is that these emerging landslide counties almost exclusively vote for Republicans. The thing about counties, though, is that their boundaries don’t change. This means that the massive geographic advantage Republicans enjoy cannot be blamed solely on gerrymandering. </p>
<p>The real explanation is the <a href="https://doi.org/10.1080/00045608.2012.720229">geographic sorting</a> of the two parties over the past 30 or more years. Democrats have diminished as a presence in rural counties, particularly in the South and Midwest, while gaining numbers in counties with large cities like Los Angeles, Houston and Chicago. </p>
<p>These latter areas have such large populations that by winning them decisively, Democrats can stay competitive nationally despite Republicans’ more even geographic spread of support across the country.</p>
<p>The data largely indicates that it is this phenomenon, not gerrymandering, that is responsible for Democratic electoral underperformance. The clustering of Democratic votes in big cities makes it more difficult for any entity – including courts and nonpartisan commissions – to draw district lines that get Democrats the most possible seats in Congress. Because Democrats live in denser, more tightly packed places, they can’t distribute their votes as efficiently among geographic districts throughout a state.</p>
<p>Meanwhile, because Republican support is more evenly distributed geographically, there are more and better options for them to win lots of districts, rather than just lots of votes. Put simply, because of where they tend to live, Republicans are wasting fewer of their votes than Democrats.</p>
<h2>Gerrymandering is still a problem</h2>
<p>None of this means that partisan gerrymandering is not happening, or that efforts shouldn’t be made to fix it. </p>
<p>If both parties are gerrymandering so effectively that they cancel out each other’s gains, this has major implications for political institutions and culture even if they aren’t reflected in the national balance of power. </p>
<p>Gerrymandering has been increasingly the subject of <a href="https://www.yahoo.com/news/north-carolina-supreme-court-poised-085218358.html">court challenges</a>, further bringing politics into the supposedly nonpolitical U.S. judicial system.</p>
<p>It also has tangible effects on regular Americans. <a href="https://doi.org/10.1016/j.electstud.2018.05.007">My own research</a> shows that changing district lines can disorient voters and reduce turnout. It could also cut into voters’ sense that their votes make a difference. </p>
<p>Democrats from South Carolina and Republicans from Illinois, would, I believe, feel better represented if they could see delegations that more accurately reflected their state’s electorate.</p>
<p>Additionally, partisan gerrymandering often means disregarding important local city and county boundaries, as well as local cultures, neighborhoods and industries – what political scientists call “<a href="https://doi.org/10.1089/elj.2019.0576">communities of interest</a>” – that have little to do with partisanship but mean a lot to everyday people.</p><img src="https://counter.theconversation.com/content/201454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charlie Hunt does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A loud chorus of Democrats – and some Republicans, too – has for years claimed gerrymandering is costing their party seats in Congress. Is it true?Charlie Hunt, Assistant Professor of Political Science, Boise State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1824072022-06-02T12:15:31Z2022-06-02T12:15:31ZSupreme Court allows states to use unlawfully gerrymandered congressional maps in the 2022 midterm elections<figure><img src="https://images.theconversation.com/files/466438/original/file-20220531-22-ur4noc.jpeg?ixlib=rb-1.1.0&rect=8%2C0%2C5710%2C3807&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mississippi state legislators review an option for redrawing the state's voting districts at the state Capitol in Jackson on March 29, 2022. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MississippiLegislativeRedistricting/d770c9acb83446fa9ff80ffe1910d505/photo?Query=gerrymandering&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=2153&currentItemNo=178">AP Photo/Rogelio V. Solis</a></span></figcaption></figure><p>In the upcoming midterm elections, states may use maps that a federal court has found unlawful.</p>
<p>You read that right: The U.S. Supreme Court recently barred federal courts from requiring states to fix their newly adopted, but unlawful, congressional maps before the 2022 midterm congressional elections. </p>
<p>In <a href="https://www.scotusblog.com/case-files/cases/merrill-v-milligan/">Merrill v. Milligan</a>, the Supreme Court in February 2022, stayed the decision of a lower court that ruled Alabama had improperly redistricted its congressional seats. <a href="https://www.npr.org/2022/01/25/1075623146/federal-court-says-alabamas-congressional-map-disadvantages-black-voters">The lower court found</a> Alabama’s maps resulted in Black and Democratic voters wielding less political power in Alabama’s congressional delegation than they otherwise would or should. It required Alabama to redraw its congressional map immediately.</p>
<p>The Supreme Court left Alabama’s congressional redistricting – deemed a violation of the <a href="https://www.archives.gov/milestone-documents/voting-rights-act">Voting Rights Act</a> by the lower court – in place through the 2022 midterm elections, without deciding for itself whether the maps are unlawful.</p>
<p>This ruling will guide federal judges considering similar cases in states across the country.</p>
<p>The decision will affect who gets elected to the U.S. House of Representatives and may determine control of Congress. It may not flip control of Congress from one party to another, but it almost certainly will affect the majority of the party that controls Congress. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large, elegant white building with columns and a plaza in front of it with one man walking near it." src="https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=376&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=376&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=376&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=472&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=472&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466447/original/file-20220531-49132-6364m8.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=472&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Supreme Court froze a lower court ruling that Alabama must draw new congressional district maps after revised ones were ruled unlawful and would have lowered Black voting power in the 2022 elections.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-is-seen-in-washington-dc-on-february-8-news-photo/1238298904?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>The ideal</h2>
<p>The <a href="https://www.census.gov/programs-surveys/decennial-census/about/census-constitution.html">U.S. Constitution requires a census</a> every 10 years, which triggers congressional redistricting. <a href="https://crsreports.congress.gov/product/pdf/R/R45951">As the Congressional Research Service describes this process</a>, “reapportionment is the process of dividing seats for the House among the 50 states following the decennial census. Redistricting refers to the process that follows, in which states create new congressional districts or redraw existing district boundaries to adjust for population changes and/or changes in the number of House seats for the state.”</p>
<p>The reapportionment of the House of Representatives mandated by the Constitution and the requirement the Supreme Court enshrined in the 1960s that <a href="https://www.law.cornell.edu/wex/one-person_one-vote_rule">one person’s vote in a state should be approximately equal to another person’s vote in the state</a> – known as “one person, one vote” – require virtually every state to redistrict after each census. States losing or gaining congressional representatives because of population loss or gain are most clearly required to redistrict. </p>
<p>In the wake of the <a href="https://www.wvgazettemail.com/news/politics/census-makes-it-official-wv-loses-a-congressional-seat-leads-nation-in-population-loss/article_9fcae9d2-1a58-5523-a67c-ee0ae251feaa.html">2020 census, West Virginia lost one representative</a>. <a href="https://www.texastribune.org/2021/04/26/texas-congress-seats-gain/">Texas gained two representatives</a>, for example.</p>
<p>States that do not gain or lose congressional representation typically <a href="https://ballotpedia.org/State-by-state_redistricting_procedures">must also redraw their congressional districts</a>. Population shifts inside a state – people moving from one part of the state to another – over the prior decade will require new districts be drawn to create districts with equal population. A state’s congressional districts must contain roughly equal populations to meet the Constitution’s one person, one vote doctrine. </p>
<p><a href="https://www2.census.gov/programs-surveys/decennial/2020/data/apportionment/apportionment-2020-table01.pdf">Consequently</a>, a state that has been apportioned 10 representatives and has 8 million people must redistrict to guarantee each of its congressional districts contains approximately 800,000 people. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Tall windows of a commercial building plastered with campaign posters in many colors." src="https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466444/original/file-20220531-49050-1cisb.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Election posters in Huntington, West Virginia, on Oct. 19, 2018; the state lost one seat in the U.S. House of Representatives during 2020 redistricting.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-walks-past-election-posters-one-of-them-supporting-news-photo/1052771394?adppopup=true">Michael Mathes/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>The reality</h2>
<p>State legislatures or state redistricting commissions <a href="https://apnews.com/article/mo-state-wire-ut-state-wire-supreme-courts-wa-state-wire-ia-state-wire-4d2e2aea7e224549af61699e51c955dd">draw a state’s congressional districts</a>. </p>
<p>Such <a href="https://www.ncsl.org/Portals/1/Documents/Redistricting/SLC-Seminar/SLC_Redistricting_Litigation_Yang.pdf">redistricting can lead to racial gerrymandering</a>, <a href="https://ballotpedia.org/Unconstitutional_racial_gerrymandering">which can diminish the power of racial groups</a> and is unconstitutional or unlawful under federal law. It can also result in partisan gerrymandering, which gives an advantage to one party or the other. This may violate state law, but unlike racial gerrymandering, it does not violate federal law or the U.S. Constitution, the <a href="https://www.oyez.org/cases/2018/18-422">Supreme Court decided in 2019</a>. </p>
<p>Voters, political organizations and legislators, among others, may challenge redistricting plans. Dozens of cases have been filed in state and federal court challenging aspects of <a href="https://redistricting.lls.edu/cases/?sortby=-updated&page=1">congressional redistricting plans drawn in the wake of the 2020 census</a>. Litigants may request that the districts be redrawn either by the legislature or redistricting commission that originally drew them, or by courts. </p>
<p>The legal principle that <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/dictum4&div=8&id=&page=">justice delayed is justice denied</a> would suggest improper gerrymandering should be fixed as quickly as possible. The Supreme Court appears to disagree. </p>
<p>The court rests its mandated indolence on <a href="https://www.scotusblog.com/election-law-explainers/the-purcell-principle-a-presumption-against-last-minute-changes-to-election-procedures/">the Purcell principle</a>, which claims electoral changes occurring too close to an election will confuse voters. The court has not <a href="https://www.politico.com/news/2020/10/05/murky-legal-concept-could-swing-the-election-426604">defined how close to an election</a> is too close to an election. The court also does not appear to closely consider how crucial such an electoral change might be in creating a fair electoral outcome. </p>
<p>Certainly, some changes that occur on the eve of an election – altering who can vote, how they can vote and where they can vote – may unfairly confuse voters and provide no significant benefits. But redrawing an electoral map months before a general election might not be that kind of disruptive change. Redrawing maps close to primary elections may cause confusion; however, primary elections may be delayed until legal maps can be drawn. </p>
<p>Congressional candidates may be inconvenienced if congressional districts are altered relatively close to an election, however “close” is defined. However, their inconvenience may not outweigh the need to draw fair districts that give everyone an equal voice. </p>
<h2>The effect</h2>
<p>The court’s choice to allow unlawful congressional redistricting plans to stand will likely affect who gets elected to the House of Representatives. </p>
<p>How districts are drawn may determine which candidates run and which candidates win. A state’s <a href="https://theconversation.com/how-this-cycle-of-redistricting-is-making-gerrymandered-congressional-districts-even-safer-and-undermining-majority-rule-173103">gerrymandered districts yield a different congressional delegation</a> than if the districts were not gerrymandered. </p>
<p>The Supreme Court’s approach may have two important effects. First, the power to gerrymander or stop gerrymandering will now rest with state officials and judges. </p>
<p>In New York, <a href="https://www.nytimes.com/2022/04/21/nyregion/redistricting-lawsuit-new-york.html">state courts have deemed the congressional districts</a> the State Assembly drew to be unlawfully gerrymandered under state law to benefit Democrats. The New York Court of Appeals, the state’s highest court, ordered non-gerrymandered maps be drawn. <a href="https://www.nytimes.com/2022/05/16/nyregion/ny-redistricting-congressional-map.html">New maps – drawn by an independent scholar</a> – that are more favorable to Republicans than prior maps were released in mid-May. </p>
<p>The <a href="https://www.house.gov/the-house-explained">House of Representatives is created by 435 local races</a>. If one party is a net winner in the state-level gerrymandering battles, the winning party will keep its spoils until at least 2024. That will affect the legislation Congress passes and the run-up to the 2024 presidential election.</p>
<p>Second, even if Democrats and Republicans are equally successful in their ability to win state-level gerrymandering battles, the Supreme Court’s refusal to allow federal courts to address gerrymandered congressional districts may lead to districts that are more gerrymandered on both sides than they would have been otherwise. That, too, may affect the composition of the House of Representatives. </p>
<p>If gerrymandered districts yield more highly partisan representatives, the Supreme Court’s actions will likely <a href="https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/07/Hasen-The-Supreme-Court%E2%80%99s-Pro-Partisanship-Turn.pdf">lead to a House that is more highly partisan</a> and less likely to produce bipartisan legislation. That may have implications for abortion, tax and economic policies and the many other issues Congress may address or fail to address. </p>
<p>The Supreme Court’s mandate to lower courts to take time to decide gerrymandering cases may appear procedural. However, it may have real, measurable effects in the lives of Americans.</p><img src="https://counter.theconversation.com/content/182407/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry L. Chambers Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A ruling by the US Supreme Court to allow unlawful maps to be used in the midterm elections will affect who gets elected to the House of Representatives and may determine control of Congress.Henry L. Chambers Jr., Professor of Law, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1769502022-02-11T13:30:30Z2022-02-11T13:30:30ZSupreme Court’s ruling on Alabama voting map could open the door to a new Wild West of state redistricting<figure><img src="https://images.theconversation.com/files/445853/original/file-20220211-25-bieqjl.jpg?ixlib=rb-1.1.0&rect=0%2C34%2C5760%2C3794&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Not every vote is counted equal.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sadie-janes-shows-off-her-voting-sticker-after-casting-her-news-photo/1204917605?adppopup=true">Joshua Lott/AFP via Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court’s order <a href="https://www.nytimes.com/2022/02/07/us/politics/supreme-court-alabama-redistricting-congressional-map.html">allowing Alabama to use a congressional map</a> that critics say <a href="https://www.vice.com/en/article/wxdznq/alabama-congressional-map-blocked">disadvantages Black voters</a> has <a href="https://www.montgomeryadvertiser.com/story/news/politics/elections/2022/02/09/supreme-court-ruling-alabama-redistricting-black-voters-voting-rights-act/6722894001/">voting rights advocates worried</a> – and understandably so.</p>
<p>On the surface, the stay issued Feb. 7, 2022, in <a href="https://www.supremecourt.gov/opinions/21pdf/21a375_d18f.pdf">Merrill v. Milligan</a> was procedural. In a 5-4 decision, the justices halted a <a href="https://www.al.com/news/2022/02/federal-court-prepares-for-possibility-of-drawing-new-alabama-congressional-map.html">district court’s injunction</a> that had barred Alabama from using a newly redistricted map in the upcoming 2022 elections. The Supreme Court will hear the full case in its next term starting in the fall, with the <a href="https://www.reuters.com/world/us/us-supreme-courts-alabama-ruling-signals-new-threat-voting-rights-law-2022-02-08/">ruling due by the end of June 2023</a> – after this year’s midterm elections.</p>
<p>Had it stood, the district court’s injunction would have required Alabama to <a href="https://www.al.com/news/2022/02/federal-court-prepares-for-possibility-of-drawing-new-alabama-congressional-map.html">redraw congressional districts</a> ahead of the election to give Black voters greater representation. Instead, Black voters – <a href="https://www.census.gov/quickfacts/AL">more than a quarter of Alabama’s electorate</a> – will be the majority in just one of seven districts.</p>
<p>The Supreme Court’s order could have a significant, substantive effect on the 2022 midterm elections – and not just in Alabama. In allowing the state to use a voting map adopted in late 2021 that a court has ruled unlawful soon after passage, the Supreme Court is sending a signal to other states regarding the lack of review available regarding problematic maps they may draw.</p>
<h2>Expanding Purcell</h2>
<p>The justices’ decision rests on <a href="https://www.scotusblog.com/election-law-explainers/the-purcell-principle-a-presumption-against-last-minute-changes-to-election-procedures/">the Purcell principle</a> – a rule the Supreme Court created in 2006 when vacating a Court of Appeals decision to block Arizona’s voter ID law a month before the upcoming general election.</p>
<p>In their ruling in the case <a href="https://www.oyez.org/cases/2006/06-532">Purcell v. Gonzalez</a>, justices said federal courts should not interfere with state election processes close to a general election because doing so would confuse voters and burden election officials.</p>
<p>The latest ruling by the Supreme Court in Merrill appears to expand the scope of the Purcell rule significantly.</p>
<p>The Merrill ruling does not appear to track Purcell. The district court’s injunction in Merrill was the result of a full review of Alabama’s congressional redistricting plan. The district court heard seven days of testimony and read a substantial volume of briefings before reaching its decision.</p>
<p>At the conclusion of the case – handled at warp speed for a federal court – the district court wrote an opinion of more than 200 pages explaining in detail the law and facts underlying its decision. </p>
<p>Moreover, the injunction against Alabama’s redistricting plan was <a href="https://www.naacpldf.org/wp-content/uploads/PRELIMINARY-INJUNCTION-MEMORANDUM-OPINION-AND-ORDER.-Signed-by-Judge-Anna-M-Manasco-on-1_24_2022.-1.pdf">issued on Jan. 24, 2022</a> – more than nine months before voting in Alabama’s general election ends on Nov. 8, 2022.</p>
<p>In contrast, the Court of Appeals in Purcell had enjoined the use of the Arizona voter ID law without explanation mere weeks before that year’s general election. </p>
<h2>Novel reading of the Voting Rights Act</h2>
<p>This apparent expansion of the Purcell principle is more than just a technical change. It could have a tangible impact on the election results in Alabama.</p>
<p>At the heart of the case is a dispute over whether Alabama must redraw its congressional districts to provide a second seat in which Black voters form the majority. The current map contains one such district. </p>
<p>That issue reaches the heart of the <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=100">1965’s Voting Rights Act</a> and could affect Black Alabamians’ ability to elect their representatives of choice.</p>
<p>In Justice Brett Kavanaugh’s <a href="https://www.supremecourt.gov/opinions/21pdf/21a375_d18f.pdf">concurrence with the court’s order</a>, joined by Justice Samuel Alito, he suggested the stay of the injunction stopping Alabama from using its map is sensible, in part, because the plaintiffs are not clearly going to win the underlying case when it comes before the Court.</p>
<p>Justice John Roberts <a href="https://www.supremecourt.gov/opinions/21pdf/21a375_d18f.pdf#page=8">dissented from the stay</a>, noting the district court appears to have applied the law correctly and left nothing for the Supreme Court to correct.</p>
<p>Meanwhile, Justice Elena Kagan’s <a href="https://www.supremecourt.gov/opinions/21pdf/21a375_d18f.pdf#page=10">dissent</a> – which was joined by Justices Stephen Breyer and Sonia Sotomayor – argued the underlying merits in the challenge to Alabama appear so clear that the Court’s majority would need to employ a novel reading of the Voting Rights Act to make the case appear debatable.</p>
<h2>Tilting elections</h2>
<p>The court’s order in Merrill suggests that the window for deciding the legality of redistricting measures before the 2022 elections has now closed.</p>
<p>That likely sends a message to all states – those that have not finished redistricting and those that may wish to revise their redistricted maps – that they can pass whatever maps they want, possibly tilting the 2022 congressional election, without fear of being overruled in federal court. </p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://memberservices.theconversation.com/newsletters/?nl=politics&source=inline-politics-understand">Subscribe to The Conversation’s politics newsletter</a>.]</p><img src="https://counter.theconversation.com/content/176950/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry L. Chambers Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Alabama will be allowed to keep a congressional map that critics say disadvantages Black voters. That does not bode well for 2022 midterms, argues a law scholar.Henry L. Chambers Jr., Professor of Law, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1731032022-01-25T19:43:09Z2022-01-25T19:43:09ZHow this cycle of redistricting is making gerrymandered congressional districts even safer and undermining majority rule<figure><img src="https://images.theconversation.com/files/442336/original/file-20220124-26263-1cn6l1u.jpeg?ixlib=rb-1.1.0&rect=0%2C22%2C5031%2C3321&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">State Sen. Joseph Thomas, D-Yazoo City, holds a copy of the proposed congressional redistricting map during debate over redistricting at the Mississippi State Capitol in Jackson, Jan. 12, 2022. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CongressionalRedistrictingMississippi/b7eb0d569e114cc0b5eced5358a719e9/photo?Query=gerrymander&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1770&currentItemNo=60">AP Photo/Rogelio V. Solis</a></span></figcaption></figure><p>In a democracy, voters choose their political leaders. In a democracy that permits gerrymandering – when state legislatures draw legislative district lines that maximize the dominant party’s chances of winning seats – elected leaders choose their voters. </p>
<p>Gerrymandering <a href="https://www.washingtonpost.com/news/democracy-post/wp/2017/02/10/gerrymandering-is-the-biggest-obstacle-to-genuine-democracy-in-the-united-states-so-why-is-no-one-protesting/">undermines representative government</a>. But it’s nothing new. The term “gerrymander” stretches all the way back to a member of the founding generation: <a href="https://www.britannica.com/biography/Elbridge-Gerry">Elbridge Gerry</a>, who <a href="https://prologue.blogs.archives.gov/2018/06/21/the-gerry-in-gerrymandering/">as governor of Massachusetts</a> led the effort in the 1810s to <a href="https://blogs.loc.gov/law/2017/02/elbridge-gerry-and-the-monstrous-gerrymander/">rig the state’s legislative districts</a> for the benefit of his fellow Republicans. </p>
<p>Gerry would be astounded to see the tools he’d have at his command in creating a gerrymander today. No longer do legislative line-drawers need to rely on their instincts in creating a district map that will advantage their party’s candidates. <a href="https://www.theatlantic.com/politics/archive/2017/10/gerrymandering-technology-redmap-2020/543888/">Sophisticated computer programs can maximize a party’s advantage</a> by creating districts that can put Gerry’s famous salamander-shaped district to shame.</p>
<p><a href="https://www.nytimes.com/interactive/2021/11/07/us/politics/redistricting-maps-explained.html">Redistricting doesn’t directly affect the U.S. Senate</a>, where the 100 senators represent 50 states – two senators per state – whose boundary lines don’t change. </p>
<p>But <a href="https://supreme.justia.com/cases/federal/us/377/533/">the Supreme Court has required U.S. House constituencies to be equal in population</a>. Geographic migration requires that most House districts be redrawn after each U.S. Census to keep those constituencies equal in size. </p>
<p>In the <a href="https://www.ncsl.org/research/redistricting/redistricting-systems-a-50-state-overview.aspx">great majority of states, whose legislatures hold the power to redraw their legislative districts</a>, this opens the door for the dominant party to redraw district lines to increase their dominance.</p>
<p>And in the <a href="https://www.pewresearch.org/fact-tank/2021/03/04/with-fewer-state-governments-divided-by-party-than-in-years-past-gop-has-edge-in-redistricting/">latest round of redistricting</a>, the results - so far - have furthered the anti-democratic trend where elected leaders choose their voters, undermining the very principles of representative government.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman with dark hair and wearing a mask and a colorful vest, stands behind a chair in a legislative meeting room." src="https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/442337/original/file-20220124-27-fl3chj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New Mexico state senators, including Shannon Pinto, D-Tohachi, prepare for the opening of a special legislative session on redistricting on Dec. 6, 2021, in Santa Fe, N.M.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedistrictingNewMexico/33ba1ad1bcac4380a8a9c0d3870c4eeb/photo?Query=gerrymander&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1770&currentItemNo=160">AP Photo/Morgan Lee</a></span>
</figcaption>
</figure>
<h2>How to gain advantage</h2>
<p>Gerrymandering is done in two ways: <a href="https://www.wiscontext.org/packing-cracking-and-art-gerrymandering-around-milwaukee">packing and cracking</a>. </p>
<p><a href="https://www.propublica.org/article/redistricting-a-devils-dictionary">Packing involves</a> putting as many voters of the opposition party as possible into one – or just a few – legislative districts. That district becomes a safe opposition-party district, won by a massive majority of opposition-party voters, far beyond the 51% majority required for victory. If all those voters were spread around other districts, they would help the opposition win those other districts’ seats. When its voters are packed into one or a few districts, then the opposition party gets a few very safe seats, but the party drawing the lines gets many more very safe seats for itself.</p>
<p><a href="https://www.propublica.org/article/redistricting-a-devils-dictionary">Cracking means</a> dividing areas of opposition strength among several legislative districts so the opposition party is unlikely to win any of them.</p>
<p><a href="https://polisci.indiana.edu/about/faculty/hershey-marjorie.html">Political scientists like me</a> can test for gerrymandering by comparing election results with a state’s “normal” partisanship. We measure “normal” partisanship by examining election results for offices that are not very visible to most voters, so their partisan loyalties usually guide their voting. Another measure of gerrymandering is to compare the total popular vote for a party’s state legislative candidates with the proportion of legislative seats that party wins.</p>
<p><a href="https://www.vox.com/22632427/redistricting-gerrymandering-house-republicans">Using either of these measures</a>, we find that gerrymandering put a Republican thumb on the scale in state legislatures and the U.S. House in the 2010s by enabling that party to win more legislative seats and pass more bills than would have happened without gerrymandering. </p>
<p>If Democrats had been able to sweep the 2010 state legislative elections, they likely would have done the same. </p>
<p>In Indiana, for example, Republican candidates for the usually low-visibility offices of Indiana secretary of state and state treasurer received an average of 58% of the Indiana vote from 2010 through 2018, indicating that around 58% of Hoosiers normally vote Republican. But in legislative elections held after the Republican-dominated state legislature redrew district lines in 2011, Republicans won a full 71% of state House seats – and 74% in the state Senate. <a href="https://dev.ballotpedia.org/Indiana_State_Senate_elections,_2012">This clearly suggests gerrymandering</a>. </p>
<p>That was true of the U.S. House as well. In <a href="https://ballotpedia.org/Ohio_elections,_2018">Ohio’s most recent midterm election in 2018</a>, Republican candidates for the U.S. House got 2.3 million popular votes, or 53%, compared with 2.1 million for Democrats. </p>
<p>Yet because of gerrymandering, even in a Democratic wave year, <a href="https://www.bloomberg.com/graphics/2018-house-seats-vs-votes/">Republicans won 75% of Ohio’s U.S. House seats</a>. Thus, Republicans were able to win a super-majority (three-quarters) of Ohio’s House delegation with only 52% of the popular vote. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a straw hat and wearing glasses and a mask confers with a man about something on a piece of paper that the woman is holding." src="https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/442373/original/file-20220124-23-1g1oz8t.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Kansas GOP State Reps. Brenda Landwehr, left, and Steve Huebert confer during a meeting of a House committee on redistricting on Jan. 18, 2022, at the Statehouse in Topeka, Kan.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedistrictingKansas/6c082cf55dfe465fa50c8ca1c7b28e1f/photo?Query=Redistricting%20Republican&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=536&currentItemNo=8">AP Photo/John Hanna</a></span>
</figcaption>
</figure>
<h2>Partisan sorting by geography</h2>
<p>The recent Republican advantage in gerrymandering isn’t the only reason for the GOP’s current structural advantage in American politics. <a href="https://www.nature.com/articles/s41562-021-01066-z">Geographic clustering makes a difference too</a>.</p>
<p>People who vote <a href="https://www.pewresearch.org/social-trends/2018/05/22/urban-suburban-and-rural-residents-views-on-key-social-and-political-issues/">Democratic tend to be concentrated in big cities</a>, where large minority populations live. So <a href="https://ballotpedia.org/United_States_House_of_Representatives_elections,_2020">Democratic U.S. House candidates usually receive large majorities of the vote in urban districts: 70%, 75%, even 80%</a>.</p>
<p>But that’s a wasteful majority. They need only 51% to win those seats. </p>
<p>If the surplus Democratic voters were to move to rural and exurban areas, they would make these areas more competitive for their party. Lifestyle preferences are not easily changed, however.</p>
<p>Gerrymandering distorts more than the election chances of the two parties’ candidates. It affects the policies that state legislatures and Congress pass. </p>
<p>Here’s what those majorities do with their power. </p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-likethis">Sign up for The Conversation’s daily newsletter</a>.]</p>
<p>When states have heavily Republican-dominated legislatures, <a href="https://www.theatlantic.com/politics/archive/2021/06/republican-state-legislatures-changes/619086/">those legislatures are likely to pass</a> laws sharply restricting abortion and voting rights, banning mask mandates to deal with the COVID-19 pandemic and permitting the carrying of weapons without permits. </p>
<p>Where Democrats control state legislatures, they have often passed dramatically different policies, <a href="https://www.huffpost.com/entry/voting-rights-states-2021_n_619d4ac1e4b0f398af0bc363">including expanded voting</a> <a href="https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199559947.001.0001/oxfordhb-9780199559947-e-23">and abortion rights</a>. </p>
<h2>Fine-tuning the squeezing</h2>
<p>After the 2020 Census, the partisan effect of gerrymandering has been more limited. That’s because gerrymanders after the 2010 Census were so effective in squeezing out the maximum number of seats for their party that dominant state legislative parties are now mainly trying to fine-tune their earlier efforts.</p>
<p>But the 2020 gerrymanders <a href="https://www.washingtonpost.com/opinions/2022/01/05/democrats-avoid-gerrymandering-bloodbath/">have had another pernicious effect</a>. The fine-tuning, intended to shore up the dominant party’s existing areas of strength, means <a href="https://www.cookpolitical.com/analysis/house/house-overview/2022-house-overview-still-gop-advantage-redistricting-looks-wash">that the number of competitive U.S. House districts has been whittled to a new low</a> - probably less than one in every 20 House seats.</p>
<p>As a result, the number of districts safe for one party has skyrocketed. </p>
<p>In these districts, the elected representative can pay attention to only his or her own party’s activists and identifiers; the other party can be safely ignored. So the U.S. House becomes increasingly divided between undiluted right - or Trumpist - and left wings, neither with any incentive to compromise. </p>
<p><a href="https://www.bloomsburycollections.com/book/political-polarization-in-american-politics/ch1-what-we-know-and-do-not-know-about-our-polarized-politics?from=search">That may be the most consequential effect of all</a>. </p>
<p>Gerrymandering thus becomes yet another way in which the institutional rules of U.S. politics - for instance, equal representation of states in the U.S. Senate regardless of population, the Senate filibuster and the Electoral College - <a href="https://www.cambridge.org/core/books/minority-rights-majority-rule/4E3DF177EC038D2DA91851C5316CF579">can limit majority rule</a>.</p><img src="https://counter.theconversation.com/content/173103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marjorie Hershey does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The results of the latest round of redistricting have advanced the anti-democratic trend where elected leaders choose their voters, undermining representative government.Marjorie Hershey, Professor Emeritus of Political Science, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1692342021-12-01T13:31:11Z2021-12-01T13:31:11ZIndependent commissions can ditch partisanship and make redistricting fairer to voters<figure><img src="https://images.theconversation.com/files/432657/original/file-20211118-17-4yozh.jpeg?ixlib=rb-1.1.0&rect=40%2C40%2C6669%2C4426&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People wait in line to get their ballot to vote in the 2020 general election in Detroit, Michigan. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-wait-in-line-to-get-their-ballot-to-vote-in-the-2020-news-photo/1229448175?adppopup=true">Photo by JEFF KOWALSKY/AFP via Getty Images</a></span></figcaption></figure><p>States across the U.S. are drawing new electoral districts for the next decade in a process called redistricting. In some states, districts are drawn by the state legislature; in others, by an independent redistricting commission.</p>
<p>By federal law, <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10639">congressional districts must be of equal population</a> and must protect minority representation under the <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=100">Voting Rights Act</a> by guaranteeing that minority voters have an equal opportunity to elect their preferred candidates. </p>
<p>In many states, elections must also be “fair” to political parties or candidates as dictated by <a href="http://legislature.mi.gov/doc.aspx?mcl-Article-IV-6">explicit provisions</a> on partisan fairness, or implicitly under “<a href="https://www.ncleg.gov/Laws/Constitution/Article1">free and equal</a>” clauses in state law. </p>
<p><a href="https://sites.google.com/msu.edu/eguia">We are</a> <a href="https://sites.google.com/view/christian-cox">two scholars</a> who study redistricting and electoral competition. To understand whether different redistricting institutions deliver fairer or less fair results, we compared the very different paths taken in three competitive states of similar size: North Carolina, Michigan and Virginia.</p>
<p>In North Carolina, as in most states, the state Legislature draws the electoral district maps. </p>
<p>This was the case in Michigan and Virginia as well, <a href="https://ballotpedia.org/Michigan_Proposal_2,_Independent_Redistricting_Commission_Initiative_(2018)">until Michiganders in 2018</a> <a href="https://ballotpedia.org/Virginia_Question_1,_Redistricting_Commission_Amendment_(2020)">and Virginians in 2020</a> voted to amend their constitutions to assign the task of drawing electoral districts to redistricting commissions. </p>
<p>Advocates for those commissions hoped that by being separate from the legislatures, commissions will deliver fairer maps of new voting districts.</p>
<p>We found that while it is possible for commissions to develop fairer results, it is not a given – and it depends at least in part on how the commission is structured.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump at a rally in front of a lot of people." src="https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=395&fit=crop&dpr=1 600w, https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=395&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=395&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=496&fit=crop&dpr=1 754w, https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=496&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/432658/original/file-20211118-27-1qgg75v.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=496&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New electoral maps will help determine who wins elections over the next decade. Here, Donald Trump campaigns for Ohio congressional candidate Max Miller on June 26, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-endorses-ohio-congressional-news-photo/1233676275?adppopup=true">Stephen Zenner/AFP/Getty Images</a></span>
</figcaption>
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<h2>What’s a fair map, anyway?</h2>
<p>Over the years, various courts and legislatures have sought to define fairness in various ways beyond just equal population across districts. </p>
<p><a href="https://gerrymander.princeton.edu/redistricting-report-card?planId=rec1jFkj1lne3m1RS">Mathematical analyses</a> are often key to evaluating a <a href="https://planscore.campaignlegal.org/north_carolina/#!2020-plan-ushouse-eg">proposed map’s fairness</a>. In 2018, the Pennsylvania Supreme Court issued what is probably the <a href="https://scholar.google.com/scholar_case?case=3494281422341862323&q=League+of+Women+Voters+v.+Commonwealth,+178+A.3d+737&hl=en&as_sdt=80000006">clearest legal standard of mathematical fairness</a>. It requires first identifying a hypothetical electoral map or maps that are politically neutral – and therefore fair and nonpartisan – and then comparing any redistricting plans to such fair maps.</p>
<p>One way to find a <a href="https://www.liebertpub.com/doi/abs/10.1089/elj.2020.0691">hypothetical neutral map</a> is to go back to the origins of American democracy and to look at the original 1776 Pennsylvania Constitution, in which each county, plus the city of Philadelphia, was its own electoral district. Each of these districts received seats in proportion to its population at the time. County lines have long been fixed and were drawn without consideration to today’s partisan interests.</p>
<p>Using this historical precedent as a hypothetical neutral benchmark, one can evaluate the fairness of any proposed redistricting map in two steps: </p>
<p>First, look at precinct-level voting results from a recent election. Add up the votes for each party by county, and find out which party won the most votes in each county. Then, for each party, add up the total population in all the counties in which the party won the most votes. The share of this population over the total population in the state is the neutral benchmark share of seats that the party would have won with these election results, if we had counted votes and had declared winners by county. </p>
<p>Second, look at the same recent election’s precinct-level results, but add up the votes for each party according to the proposed new districts to see how many of these districts the party would win. </p>
<p>Compare the share of new districts a party would win with the neutral benchmark share if we counted by county. The closer the proposed map’s results are to the by-county method, the fairer the proposed map. We use this method to evaluate each state’s map proposals.</p>
<h2>North Carolina’s partisan process</h2>
<p>In 2020, Joe Biden won the presidential election in 25 of North Carolina’s 100 counties, which contain just over 50% of the state’s population. Donald Trump won the other 75 counties, home to just under half of North Carolinians. </p>
<p>So a neutral congressional redistricting map would deliver just over half of the seats to Democrats, and just under half to Republicans. North Carolina has 14 seats, so with adjustments for rounding, each party should win seven seats under a fair map.</p>
<p>The Republican-dominated state Legislature’s official map was <a href="https://www.cnn.com/2021/11/04/politics/north-carolina-congressional-map-redistricting/index.html">approved by lawmakers on Nov. 4</a>. Looking at the 2020 presidential election results according to that map would have Biden winning in four districts and Republicans winning in 10.</p>
<p>Conducting the same analysis using the results of other recent elections, including the 2016 presidential, gubernatorial and U.S. Senate races, also finds that a neutral map is split evenly, seven and seven – and North Carolina’s proposed map delivers a 10-4 Republican majority.</p>
<h2>Virginia’s partisan deadlock</h2>
<p>The Virginia Redistricting Commission is bipartisan and political: Democratic and Republican state legislative leaders appoint elected officials for half of the commission seats, and they nominate citizens for the other half, so the commission has eight Democrats and eight Republicans, with half of each pool being professional politicians.</p>
<p>This commission split along partisan lines, and because of disagreements, it was <a href="https://www.washingtonpost.com/dc-md-va/2021/10/25/redistricting-virginia-lessons-partisan/">unable to produce any maps</a>. In accordance with the state Constitution, the Virginia Supreme Court <a href="https://www.vacourts.gov/courts/scv/districting/redistricting_information.pdf">took over</a> and will appoint a special official, or several of them, to draw new electoral districts that will, we can hope, be fair.</p>
<h2>In Michigan, true independence delivers fairness</h2>
<p><a href="https://www.michigan.gov/micrc/">The Independent Citizen Redistricting Commission</a> in Michigan is composed of 13 volunteer regular citizens – not politicians – including four who identify as Republican, four as Democratic and five who do not identify with either of the two parties.</p>
<p><a href="https://www.freep.com/story/news/local/michigan/detroit/2021/10/11/michigan-redistricting-committee-whats-next/6069719001/">The commission released four draft plans back in October</a> and held public hearings to receive comments. The commission then revised its work and on Nov. 15 released three proposed maps, named Apple V2, Birch V2 and Chestnut after trees native to the state. <a href="https://www.michigan.gov/micrc/0,10083,7-418-106525---,00.html">Following a further round of public hearings</a>, the commission will hold a final vote to adopt one of these maps as the official map for congressional elections in Michigan for the next decade.</p>
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<p>Our analysis finds that, in general, all three of these maps are fair. Based on recent past election results in Michigan’s 83 counties, we find that Democratic candidates would win the most votes in 11 counties with 55% of the population, and Republicans would win the most in 72 counties with the remaining 45% of the population. Dividing the state’s 13 congressional seats proportionally would deliver 6.6 seats to Democrats and 6.4 to Republicans.</p>
<p>Of course, actual seats don’t come in fractions. In whole numbers, a neutral real outcome would deliver six Democrats and six Republicans, with the 13th seat a little more likely to be won by a Democrat than by a Republican.</p>
<p>Under Apple V2 and Birch V2, 6.6 seats would be won by Democrats, and under Chestnut, 6.8 would. </p>
<p>In sharp contrast to the partisan maps adopted by legislators in North Carolina, and the failure of Virginia’s politicized commission, we find that in Michigan, an independent commission of citizens <a href="https://ippsr.msu.edu/sites/default/files/redistricting/redistrictingreportv2.pdf">has drawn</a> fair congressional maps.</p><img src="https://counter.theconversation.com/content/169234/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon X. Eguia received funding from the Institute for Public Policy and Social Research (IPPSR) at Michigan State University. In 2018, he was a volunteer with Voters Not Politicians, the organization that led the ballot initiative to amend the Michigan Constitution to create the Michigan Independent Redistricting Commission. </span></em></p><p class="fine-print"><em><span>Christian Cox does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As states devise new electoral district maps, some have adopted independent commissions to ensure fairness in that process. Do they deliver?Jon X. Eguia, Professor of Economics, Michigan State UniversityChristian Cox, Postdoctoral Associate, Yale UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1626512021-11-17T13:17:28Z2021-11-17T13:17:28ZHow to make voting districts fair to voters, not parties<figure><img src="https://images.theconversation.com/files/430367/original/file-20211104-21-vr9zcy.jpg?ixlib=rb-1.1.0&rect=35%2C0%2C4000%2C2598&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Representatives say the Pledge of Allegiance at the State Capitol in Austin. Texas is one of many states that redrew their political maps in 2021.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-state-representatives-recite-the-pledge-of-allegiance-news-photo/1235386812?adppopup=true">Tamir Kalifa via Getty Images</a></span></figcaption></figure><p>Should fairness to political parties be the standard for evaluating legislative redistricting?</p>
<p>Across the nation, state lawmakers are jockeying to advantage their party – <a href="https://apnews.com/article/new-york-redistricting-andrew-cuomo-wrestling-elections-f13d214732a948d88418b005dd9131de">be it Republican or Democratic</a> – while drawing boundaries for legislative and congressional districts. </p>
<p>If the <a href="https://www.congress.gov/bill/117th-congress/senate-bill/2747">Freedom to Vote Act</a> currently before Congress passes, many state maps that favor one party will become illegal.</p>
<p>As <a href="https://scholar.google.com/citations?user=C_ndvd4AAAAJ&hl=en&oi=ao">a geographer who studies boundaries</a> and <a href="https://scholar.google.com/scholar?hl=en&as_sdt=0%2C22&q=LL+Fowler&btnG=">a political scientist who studies Congress</a>, we are interested in how spatial distributions of voters affect election outcomes.</p>
<p>Our <a href="http://www.paredistricting.com/Display/SiteFiles/448/OtherDocuments/2021/FowlerTestimonytoPAHouseStateGovernmentCommittee7_22_21.pdf">research on Pennsylvania</a> demonstrates that fairness to parties in drawing legislative districts is an unworkable goal. However, reforming other rules that govern how districts are drawn and votes are counted could make more contests competitive and enhance legislators’ accountability to the public.</p>
<h2>The case of Pennsylvania</h2>
<p>The conventional standard for assessing the partisan fairness of district maps is the seat/vote ratio. This measure reflects a party’s control of seats after an election in proportion to its share of the aggregate state vote.</p>
<figure class="align-center ">
<img alt="Voters wait in line" src="https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/430373/original/file-20211104-15-2hx9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Voters wait to cast a ballot in the 2020 presidential election in Pennsylvania, where new congressional maps were drawn to prevent biased districting.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/voters-wait-in-line-at-the-oakmont-united-methodist-church-news-photo/1229435640">Jeff Swensen via Getty Images</a></span>
</figcaption>
</figure>
<p>Take Pennsylvania, for example. Republicans held 72% of the state’s 18 U.S. House seats at the start of the 115th Congress in 2017, while winning only 54% of <a href="https://electionreturns.pa.gov/General/OfficeResults?OfficeID=11&amp;ElectionID=54&amp;ElectionType=G&amp;IsActive=0">the aggregate vote</a>. That’s a seat/vote ratio of 72/54. The state Supreme Court viewed the outcome as evidence of biased districting and <a href="https://www.brennancenter.org/sites/default/files/legal-work/LWV_v_PA_Order-Regarding-Petition-for-Review_1.22.18.pdf">ordered new congressional maps</a>. The result was a 50-50 partisan split in seats for 2018 and 2020, which proved consistent with Biden’s win of 50% of the votes in the 2020 presidential election. </p>
<p>Beneath this seemingly equitable result, however, were disturbing patterns. In two-thirds of the Pennsylvania races, <a href="https://ballotpedia.org/United_States_House_of_Representatives_elections_in_Pennsylvania,_2020">the winner captured 60% or more of the vote against a weak opponent</a>. In other words, fairness to parties meant that large numbers of citizens in Pennsylvania lived in safe districts where their vote had little meaning. Certain seats, in effect, belonged to one party or the other.</p>
<p>To understand the factors distorting election outcomes in Pennsylvania, we used a computer algorithm to simulate thousands of congressional maps. Without significantly manipulating district boundaries – a process you could describe as reverse gerrymandering – we could generate very few districts where candidates from either party could win. Our work confirmed what <a href="https://www.nytimes.com/2014/01/26/opinion/sunday/its-the-geography-stupid.html">others have also found</a>: that the traditional requirement for compactness – meaning districts <a href="https://ballotpedia.org/Compactness">resemble squares and have straight borders</a> – increased the likelihood that a plan would be <a href="http://www.paredistricting.com/Display/SiteFiles/448/OtherDocuments/2021/FowlerTestimonytoPAHouseStateGovernmentCommittee7_22_21.pdf">biased in favor of Republicans</a>.</p>
<h2>Choices voters make</h2>
<p>Housing patterns turned out to be the reason behind this dearth of competitive contests. </p>
<p>Voters in Pennsylvania cluster into homogeneous communities according to socioeconomic status, race and partisan affiliation, a phenomenon known as “<a href="https://doi.org/10.1017/psrm.2018.44">residential sorting</a>.” Once a dominant group emerges in a district, potential challengers lack a viable path to office and decide not to run. Incumbents become accountable solely to primary voters, while large numbers of citizens sink permanently into political irrelevance.</p>
<p>Across the nation, similar patterns prevail. Typically, only 10% to 12% of the 435 House districts have closely fought contests, and <a href="https://www.governing.com/now/legislative-turnover-at-lowest-level-seen-since-1920s.html">few state legislatures experience shifts in party control</a>. For example, the Maryland state Legislature has been in Democratic hands for <a href="https://ballotpedia.org/Party_control_of_Maryland_state_government">at least 30 years, despite having had two Republican governors</a>.</p>
<p>One might justify fairness to parties as a criterion for redistricting by arguing that <a href="https://www.routledge.com/Party-Politics-in-America/Hershey/p/book/9780367472573">voters rely on party labels to evaluate candidates</a>. But public approval of both the Democratic and Republican parties has <a href="https://news.gallup.com/poll/24655/party-images.aspx">averaged well below 50% since 2010</a>, and a July 2021 Gallup Poll showed independents as the <a href="https://news.gallup.com/poll/15370/party-affiliation.aspx">single largest group of voters, at 43%</a>. Among young voters, 43% affiliate with Democrats, but <a href="https://iop.harvard.edu/youth-poll/spring-2021-harvard-youth-poll">only 22% connect to Republicans</a>. </p>
<p>Both parties lack coherent platforms, having lost control over their nomination processes and split internally into factions. Large majorities of Republican and Democratic voters consistently agree with the statement that <a href="https://news.gallup.com/poll/1669/general-mood-country.aspx">the country is moving in the wrong direction</a>. Given these trends, privileging fairness to parties and the seat/vote ratio hardly seems a recipe for effective representation in state and federal legislatures. </p>
<figure class="align-center ">
<img alt="Four demonstrators hold signs opposed to gerrymandering with the Supreme Court building in the background." src="https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=405&fit=crop&dpr=1 600w, https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=405&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=405&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=509&fit=crop&dpr=1 754w, https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=509&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/430379/original/file-20211104-22364-8l4vm5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=509&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Congress is now considering legislation to end gerrymandering, which would make many legislative and congressional state maps illegal.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/demonstrators-protest-against-gerrymandering-at-a-rally-at-news-photo/1227675803?adppopup=true">Evelyn Hockstein/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<p>Strategies that reach beyond the concept of partisan fairness to enhance competition would give voters a stronger political voice. Here are two of the better ideas.</p>
<h2>Multimember districts</h2>
<p>Many election experts tout multimember districts as <a href="https://www.amacad.org/ourcommonpurpose/report/section/6">a means of reducing the number of safe seats</a> – a view <a href="https://www.washingtonpost.com/politics/2021/07/06/heres-different-way-fix-gerrymandering/">we share</a>. The approach combines several single districts into one larger unit that elects several representatives.</p>
<p>The basic idea is that bigger geographic units generate competition because they contain voters with more varied political interests. With greater diversity, the number of viable electoral coalitions increases. Strong challengers are more likely to run, and neglected communities of interest become more relevant. A clear majority would always capture at least one seat, but any sizable minority would play a significant role in determining the remaining winners.</p>
<p>In <a href="http://www.paredistricting.com/Display/SiteFiles/448/OtherDocuments/2021/FowlerTestimonytoPAHouseStateGovernmentCommittee7_22_21.pdf">our research on Pennsylvania’s 18 congressional districts</a>, a plan with three members in each of six districts generates the greatest number of diverse constituencies. Overall, the probability that a district would be competitive improved, although the scale of residential sorting in and around Philadelphia, particularly for Black Americans, would likely produce at least one politically homogeneous district. </p>
<p>In this system, the number of multimember districts and the members per district would vary by state depending upon its population size, but the number of voters per elected representative would remain constant across the nation.</p>
<h2>Ranked-choice voting</h2>
<p>To make multimember districts viable we also need to change how winners are declared.</p>
<p>Currently elections in the U.S. are decided by plurality, meaning the winner needs only one vote more than the closest rival to win. A majority of votes isn’t needed. Particularly in multicandidate contests, the current plurality system awards victory to candidates with intense, but narrow, appeal. </p>
<p>Ranked-choice voting, however, allows voters to express their preferences for the candidates who are not their first choice. Under such a system, candidates have incentives to broaden their messages to capture votes from citizens who rank them second or third. Most <a href="https://www.fairvote.org/rcvbenefits">analysts think</a> that ranked-choice voting makes it less likely for candidates with extreme views to win compared with candidates with broader appeal. The Democratic primary for New York City mayor in 2021 followed this pattern, selecting <a href="https://nymag.com/intelligencer/2021/07/the-nyc-mayors-race-and-the-joys-of-ranked-choice-voting.html">Eric Adams, who was acceptable to multiple groups</a>.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<p>One group that may oppose multimember districts is Black voters. Eliminating single-member districts could interfere with the design of districts with a majority of African American voters – districts that have fostered <a href="https://www.nytimes.com/2020/12/09/nyregion/ranked-choice-lawsuit-voting.html">the election of Black legislators since the 1960s</a>. </p>
<p>When we studied <a href="http://www.paredistricting.com/Display/SiteFiles/448/OtherDocuments/2021/FowlerTestimonytoPAHouseStateGovernmentCommittee7_22_21.pdf">the districts that elected Black members to Congress</a>, however, we learned that those containing at least 37% African Americans selected a Black candidate in most cases. And <a href="https://mggg.org/rcv">research done at the Tisch College of Civic Life at Tufts University</a> indicates that Black and Latino citizens may benefit from multimember districts if they are adopted in combination with ranked-choice voting. </p>
<p>Elections should hold public officials accountable by rewarding or sanctioning legislators’ performance. Outlawing gerrymandering addresses one piece of the problem of safe seats that impedes representation. But without other reforms, fairness to parties will have limited impact as long as residential sorting of citizens into homogeneous communities stifles electoral competition.</p><img src="https://counter.theconversation.com/content/162651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Fowler is affiliated with Draw the lines PA, a non-partisan organization seeking to increase public participation and transparency in the congressional redistricting process in Pennsylvania. He is also an appointed member of Governor Wolf's Redistricting Advisory Council</span></em></p><p class="fine-print"><em><span>Linda Fowler does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Cracking down on gerrymandering isn’t enough to make elections more competitive.Linda Fowler, Professor of Government, Dartmouth CollegeChris Fowler, Associate Professor of Geography and Demography, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1505912020-12-07T13:13:29Z2020-12-07T13:13:29ZNew electoral districts are coming – an old approach can show if they’re fair<figure><img src="https://images.theconversation.com/files/372656/original/file-20201202-24-1iag9no.jpg?ixlib=rb-1.1.0&rect=9%2C4%2C3286%2C2189&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Drawing congressional district boundaries can be complicated.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020-StateLegislatures/aee388d5236348c4b93c309878f29115/photo">AP Photo/Gerry Broome</a></span></figcaption></figure><p>When the results of the 2020 U.S. Census are released, states will use the figures to draw new electoral district maps for the U.S. House of Representatives and for state legislatures. This process has been controversial since the very early days of the nation – and continues to be so today.</p>
<p>Electoral district maps designate which people vote for which seat, based on where they live. Throughout history, these maps have often been drawn to give one party or another <a href="https://theconversation.com/republicans-didnt-lose-big-in-2020-they-held-onto-statehouses-and-the-power-to-influence-future-elections-150237">a political advantage</a>, diluting the power of some people’s votes.</p>
<p>In the modern era, advanced math and computer algorithms are regularly used to analyze potential district boundaries, making it easier to <a href="https://theconversation.com/after-supreme-court-decision-gerrymandering-fix-is-up-to-voters-117307">spot these unfairnesses</a>, called gerrymandering. But there is a simpler way – and it’s based on a system used early in the country’s history.</p>
<h2>Before there were districts</h2>
<p>In the very beginning of the U.S., there weren’t formal electoral districts. Instead, representation was based on counties and towns. For instance, under Pennsylvania’s 1776 state Constitution, each county, and the city of Philadelphia, was assigned a number of state assembly seats “<a href="https://avalon.law.yale.edu/18th_century/pa08.asp">in proportion to the number of taxable inhabitants</a>.”</p>
<p>In 1789, the U.S. Constitution declared that seats in the U.S. House of Representatives would be allocated to the states in proportion to their populations. But it gave no guidance about how to fill those seats. Some states chose to draw an electoral district map, with each district getting one representative. Most of the others chose to grant the entire delegation to the party with the most votes statewide.</p>
<p>Through the first half of the 1800s, the rest of the states gradually shifted to drawing single-member electoral districts. The ideal was for each of these members – whether of Congress or a state legislature – to represent an equal number of people.</p>
<p>New census data, available every 10 years, was useful for doing this, but many states didn’t redraw their districts to adjust for population changes. As a result, newly developed regions with rapid population growth <a href="https://www.cambridge.org/core/books/recreating-the-american-republic/BEEEC9202BA45BC9FF803D4BDECCCDDB">found themselves with less representation</a> than more established population centers with slower growth.</p>
<p>It wasn’t until 1964 that the U.S. Supreme Court ruled that all states had to redraw their district boundaries for <a href="https://supreme.justia.com/cases/federal/us/376/1/">congressional</a> and <a href="https://supreme.justia.com/cases/federal/us/377/533/">state elections</a>, to guarantee that each member of a state delegation in a given assembly represented an equal number of people according to the latest census.</p>
<p>At that point, the controversy shifted from the number of people who lived in a district to its shape.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A depiction of a state electoral district as a monster" src="https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=628&fit=crop&dpr=1 600w, https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=628&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=628&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=789&fit=crop&dpr=1 754w, https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=789&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/370601/original/file-20201120-19-1ogqyrt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=789&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An 1812 political cartoon depicted a Massachusetts senatorial district as a monster.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:The_Gerry-Mander_Edit.png">Elkanah Tisdale/Boston Centinel via Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Drawing the boundaries</h2>
<p>An unfair map can favor one party over another by spreading out supporters across many districts and concentrating opponents in just a few. For instance, the 2018 North Carolina congressional elections saw Republican candidates <a href="https://er.ncsbe.gov/?election_dt=11/06/2018&county_id=0&office=FED&contest=0">win 50% of the votes statewide</a>. But the Republicans had drawn the districts, so the party won 10 of the 13 seats. In the three districts Democrats won, they scored landslide victories. In the other 10 districts, Republicans won, but with smaller margins.</p>
<p>Maps <a href="https://supreme.justia.com/cases/federal/us/541/267/">aren’t necessarily unfair</a> just because they deliver such lopsided results. Sometimes supporters of one party are already concentrated, as in cities. It’s possible for a fair map to deliver large Democratic wins in Philadelphia, Atlanta, Detroit or Milwaukee while the party gets only half the statewide votes in Pennsylvania, Georgia, Michigan or Wisconsin.</p>
<p><iframe id="GCdQH" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/GCdQH/5/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Comparison with alternatives</h2>
<p>What I consider <a href="https://mggg.org/work">a better way</a> to analyze a redistricting map for fairness is to compare it with other potential maps. </p>
<p>Making this comparison doesn’t require knowing how individual people voted. Rather, it involves looking at the smallest units of vote tabulation: precincts, which are sometimes also called wards. Each of these has somewhere <a href="https://web.archive.org/web/20061214025307/http://www.eac.gov/election_survey_2004/chapter_table/Chapter13_Polling_Places.htm">between a few hundred and a couple thousand voters</a>; larger districts are made by putting together groups of precincts. </p>
<p>Computers can really help, creating large numbers of alternate maps by assembling precincts in different combinations. Then the vote totals from those precincts are added up, to determine who would have won the newly drawn districts. Those alternate results can shed light on whether the real map was fair.</p>
<p>For instance, in the 2012 congressional elections in Pennsylvania, Republican candidates got fewer votes than Democrats, but Republicans won 13 of the state’s seats, while Democrats won only five. Researchers created <a href="https://www.pubintlaw.org/wp-content/uploads/2017/06/Expert-Report-Jowei-Chen.pdf">500 alternative maps</a>, and showed that Republicans would win eight, nine or 10 seats in most of those maps, and never more than 11 seats. After seeing that evidence, the Pennsylvania Supreme Court found that the map violated the state Constitution’s standards for free and equal elections. Justices <a href="https://www.brennancenter.org/sites/default/files/legal-work/LWV_v_PA_Majority-Opinion.pdf">tossed out the map</a> and ordered a new one drawn in time for the 2018 election.</p>
<p><iframe id="q9N0Y" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/q9N0Y/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Easily evaluating fairness</h2>
<p>A <a href="https://ideas.repec.org/p/ris/msuecw/2020_014.html">simpler way</a> to evaluate newly drawn districts is to imagine going back to assigning seats the way Pennsylvania did in 1776: The party winning the vote in each county or large town got seats in proportion to the location’s population. </p>
<p>Comparing the county-by-county results with the results based on a particular district map will show whether there is a major difference between the imaginary and the real results. If so, that signals an unfair partisan advantage.</p>
<p>For instance, North Carolina has 100 counties. In the 2018 U.S. House election, Republican candidates got more votes than Democratic candidates <a href="https://www.politico.com/election-results/2018/north-carolina/">in 72 of them</a>, which together are <a href="https://www.census.gov/data/tables/time-series/demo/popest/2010s-counties-detail.html">home to 51% of the state’s population</a>. Under the 1776 Pennsylvania system, the Republican Party deserved 51% of the seats – or 6.6 out of 13. Allowing for rounding, it’s reasonable for Republicans to win six or seven seats – or perhaps even eight – but more than that is an unfair and artificial partisan advantage.</p>
<p>Under the map in use in 2018, North Carolina Republicans <a href="https://www.cnn.com/election/2018/results/north-carolina">won 10 seats</a>. The state Supreme Court later <a href="https://www.pbs.org/newshour/politics/north-carolina-judges-throw-out-current-congressional-map">threw out that map</a>, which was replaced by one in which <a href="https://www.cnn.com/election/2020/results/state/north-carolina">Republicans won eight seats in 2020</a>.</p>
<p>To be very clear, I’m not proposing actually returning to the old Pennsylvania method of assigning seats. Rather, I’m proposing that its potential outcomes be used to evaluate maps of electoral districts drawn with equal populations. If the results are similar, then the map is likely relatively fair.</p>
<p><iframe id="mO1S8" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/mO1S8/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>This measure of partisan advantage is much simpler to compute than making large numbers of alternative maps. I did the calculations for 41 states, using the results of the 2012, 2014, 2016 and 2018 congressional elections. I compared those election outcomes with the results that would have happened if seats were assigned by counties and major towns or cities.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>I found that on average across these four elections, and on aggregate across all these 41 states, the 2012-2018 maps <a href="https://ideas.repec.org/p/ris/msuecw/2020_014.html">gave an advantage of 17 seats</a> in the House of Representatives to the Republican Party. The five states with the most unfair advantages relative to their total delegation size are North Carolina, Utah, Michigan and Ohio – favoring Republicans – and Maryland, favoring Democrats.</p>
<p>Auspiciously, court rulings and citizen ballot initiatives in the past five years have led to <a href="https://theconversation.com/republicans-didnt-lose-big-in-2020-they-held-onto-statehouses-and-the-power-to-influence-future-elections-150237">redistricting reform</a> in four of these states. Continued civic engagement can help to induce mapmakers in these and other states to draw redistricting maps that guarantee fairer representation for the 2022-2030 cycle.</p><img src="https://counter.theconversation.com/content/150591/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon X. Eguia received funding from the Institute for Public Policy and Social Research at Michigan State University. He volunteered for the organization Voters Not Politicians, which led a 2018 ballot initiative for redistricting reform in Michigan. </span></em></p>Most methods of determining whether electoral maps are fair require a lot of math and some tough computation. But there is an easier way.Jon X. Eguia, Professor of Economics, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1502372020-11-24T13:09:48Z2020-11-24T13:09:48ZRepublicans didn’t lose big in 2020 – they held onto statehouses and the power to influence future elections<figure><img src="https://images.theconversation.com/files/370598/original/file-20201120-17-m4zvi.jpg?ixlib=rb-1.1.0&rect=225%2C96%2C4970%2C3453&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who will be represented in Congress?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/people-map-on-grey-background-royalty-free-illustration/694368190">iconeer/DigitalVision Vectors via Getty Images</a></span></figcaption></figure><p>Election Day delivered a presidential victory for the Democratic Party and narrowed the partisan split in the U.S. House and Senate. But it was nevertheless a victory for Republicans in the battle every decade to draw state and congressional districts that favor their party.</p>
<p>Beginning in 2021, states will begin <a href="https://theconversation.com/votes-cast-in-november-will-shape-congress-through-2030-146276">redrawing electoral boundaries</a> for U.S. House districts and state legislative districts, using the results of the 2020 census to determine the partisan composition of Congress and statehouses through 2030. </p>
<p>Despite national Democratic success, <a href="https://www.nytimes.com/2020/11/04/us/election-state-house-legislature-governors.html">the results of state legislative elections</a> put Republicans in place to be the <a href="https://fivethirtyeight.com/features/republicans-won-almost-every-election-where-redistricting-was-at-stake/">long-term winners of the election of 2020</a>.</p>
<p><iframe id="8oSGs" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/8oSGs/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Legislative control is key</h2>
<p>In most states, the <a href="https://theconversation.com/votes-cast-in-november-will-shape-congress-through-2030-146276">legislature is responsible for drawing Congressional district boundaries</a>, and it is common that the majority party draws the lines to give the advantage to its party members, a practice called gerrymandering. In most of these states, the governor can veto legislative maps, but it’s common to have a governor from the same party as dominates the legislature.</p>
<p>In the 2010 elections, Republicans <a href="https://www.npr.org/2016/06/15/482150951/understanding-congressional-gerrymandering-its-moneyball-applied-to-politics">gained unified control</a> of 17 of the 30 legislatures that then had sole district mapmaking responsibility. And only two of those states, Minnesota and Missouri, had Democratic governors. All those legislatures, which collectively redrew 190 congressional districts, helped produce a <a href="https://www.pbs.org/newshour/politics/gop-gerrymandering-creates-uphill-fight-dems-house">congressional map that has been widely regarded as a pro-Republican gerrymander</a>.</p>
<p>Republican-controlled legislatures in <a href="https://www.wunc.org/post/duke-mathematicians-investigate-2012-election-results-north-carolina">North Carolina</a> and <a href="https://www.inquirer.com/philly/news/pennsylvania-gerrymandering-districts-supreme-court-20170814.html">Pennsylvania</a>, for example, produced maps that ultimately awarded Republicans with two-thirds of their state’s congressional seats despite the party capturing less than 50% of the statewide vote in the next federal election. These and similarly <a href="https://www.nytimes.com/2013/02/03/opinion/sunday/the-great-gerrymander-of-2012.html">gerrymandered state</a> maps helped the Republican Party maintain their 2010 majority in the House of Representatives, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/ssqu.12743">although Democratic candidates won a higher number of votes nationwide in 2012</a>.</p>
<figure class="align-center ">
<img alt="A finger points at a map" src="https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&rect=33%2C0%2C3720%2C2478&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A small sliver of a congressional district in Pennsylvania crossed four counties, on a map that was ruled to be a partisan gerrymandering plan.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedrawingAmericaImbalanceofPower/28384d0ebdd74ec7b7042d734c674edf/photo">AP Photo/Keith Srakocic</a></span>
</figcaption>
</figure>
<h2>Republicans set to dominate redistricting</h2>
<p>Republicans continue to dominate statehouses in the wake of the <a href="https://ballotpedia.org/State_legislative_elections,_2020">2020 state legislative elections</a>. Democrats had hoped to flip partisan control of at least one legislative chamber in states like North Carolina, Pennsylvania, Michigan, Minnesota and Texas, where they could <a href="https://www.washingtonpost.com/politics/2020/10/02/state-legislative-battles-watch-2020/">exert greater control over the upcoming redistricting process</a>. But they <a href="https://www.politico.com/news/2020/11/04/statehouse-elections-2020-434108">didn’t flip any legislative chambers</a> in their favor – and lost control of both chambers of the New Hampshire statehouse.</p>
<p>In the 2021 legislative season, Republicans will have unified control of 20 of the 28 legislatures that retain mapmaking responsibility. <a href="https://www.washingtonpost.com/politics/2020/11/11/where-democrats-will-be-locked-out-power-redistricting-battles-next-year/">Democrats will control just seven</a>. Power will be split only in Minnesota, where Republicans hold the majority in the Senate and Democrats control the House. </p>
<p>In seven states, Democrats will control the process, which will give them a smaller effect on the national congressional results. As a result of their greater control over district lines, Republicans may be advantaged in the 2022 House elections. But there are some forces that could counter the possibility of pro-Republican gerrymandering – including the states that have taken mapmaking power away from their partisan legislators. </p>
<p>[<em><a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=experts">Expertise in your inbox. Sign up for The Conversation’s newsletter and get expert takes on today’s news, every day.</a></em>]</p>
<h2>The future of redistricting</h2>
<p>In 2018, popular referenda in Colorado, Michigan and Utah created redistricting commissions that are independent from the legislatures. And in November 2020, Virginia voters <a href="https://ballotpedia.org/Virginia_Question_1,_Redistricting_Commission_Amendment_(2020)">overwhelmingly approved a ballot measure</a> to amend the Constitution to <a href="https://www.washingtonpost.com/local/virginia-politics/virginia-redistricting-amendment-results/2020/11/02/5d1ef242-19f8-11eb-befb-8864259bd2d8_story.html">create a bipartisan redistricting commission</a> composed of state legislators and citizens.</p>
<p>In addition, Democratic governors in states where Republicans control both legislative chambers, such as Kentucky, Louisiana, Wisconsin and Pennsylvania, may veto plans that contain egregious partisan gerrymanders – which would likely throw mapmaking responsibility to the state courts.</p>
<p>There are also forces pushing to preserve more partisan redistricting processes. On Nov. 3, Missouri voters narrowly approved a provision that takes redistricting out of the hands of a nonpartisan demographer and <a href="https://ballotpedia.org/Missouri_Amendment_3,_Redistricting_Process_and_Criteria,_Lobbying,_and_Campaign_Finance_Amendment_(2020)">places it instead in the hands of a political commission</a> appointed by the governor. </p>
<p>The measure also says districts will be drawn according to the rule of “one person, one vote” – which some believe may mean Missouri will draw its districts not based on total population, but only on the number of eligible voters. That highlights a <a href="https://www.npr.org/2020/11/06/931908064/a-national-fight-over-who-is-counted-in-voting-districts-may-arise-from-missouri">growing controversy about whether to count noncitizens and others who are ineligible to vote, rather than the total population</a>, for the purposes of creating electoral districts. Using total population is the current method, followed since the nation’s founding.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two people point at a map" src="https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=451&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=451&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=451&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=567&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=567&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=567&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Two people discuss a detail of a district map at a 2011 meeting of Arizona’s nonpartisan redistricting commission.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedrawingAmericaImbalanceofPowerReforms/85e912b50b1f434a89effa37659ebe96/photo">AP Photo/Ross D. Franklin</a></span>
</figcaption>
</figure>
<p>People seeking to battle partisan gerrymandering can no longer seek help from federal courts, which are barred from taking those cases by a <a href="https://www.scotusblog.com/case-files/cases/rucho-v-common-cause-2/">2019 Supreme Court decision</a> that declared federal courts couldn’t review claims of partisan gerrymandering.</p>
<p>Republicans may be poised to launch another round of <a href="https://www.theatlantic.com/politics/archive/2020/11/democrats-2020-elections-state-legislatures/617047/">partisan gerrymandered districts that will last another decade</a>, but 2020 is not 2010. Fewer states will have legislators draw district lines. Democratic governors may keep Republican-dominanted legislatures in check. Grassroots movements and activist groups battling against partisan gerrymandering have attracted high-profile support, such as from <a href="https://democraticredistricting.com">Eric Holder</a>, a former U.S. attorney general in the Obama administration. </p>
<p><a href="https://www.brennancenter.org/our-work/analysis-opinion/redistricting-reform-under-threat">Opposition to redistricting reforms</a> – and specifically the adoption of redistricting commissions – may also intensify, illustrated by the adoption of Amendment 3 in Missouri and <a href="https://www.mlive.com/public-interest/2020/07/federal-judge-throws-out-republican-lawsuit-against-michigan-redistricting-commission.html">challenges to</a> Michigan’s new redistricting commission. How these opposing forces will play out over the next decade is an open question, but we are certain they will combine to keep issues of partisan gerrymandering in the spotlight for the foreseeable future.</p><img src="https://counter.theconversation.com/content/150237/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>State legislatures, which will draw congressional districts that last through 2030, are dominated by the GOP.Robin E. Best, Associate Professor of Political Science, Binghamton University, State University of New YorkSteve B. Lem, Professor of Political Science and Public Administration, Kutztown University of PennsylvaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1438922020-09-30T12:27:14Z2020-09-30T12:27:14ZMichigan’s effort to end gerrymandering revives a practice rooted in ancient Athens<figure><img src="https://images.theconversation.com/files/359408/original/file-20200922-22-1jm6y1f.png?ixlib=rb-1.1.0&rect=50%2C0%2C609%2C482&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In ancient Athens, most government officials were selected at random from among citizens eligible to fill the positions.</span> <span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Pericles'_Funeral_Oration#/media/File:Discurso_funebre_pericles.PNG">Philipp Foltz</a></span></figcaption></figure><p>Michigan has embarked on an <a href="https://www.northernexpress.com/news/feature/the-democracy-lottery/">experiment in democratic governance</a> using a technique employed in Athens 2,500 years ago but little used since: the <a href="https://blog.oup.com/2016/03/sortition-ancient-greece-democracy/">selection of government officials by lottery</a> rather than by appointment or election. </p>
<p>The <a href="https://www.youtube.com/watch?v=8iUe_uV5RkI&feature=youtu.be&t=12m28s">13 officials selected by lot</a> in August make up Michigan’s <a href="https://www.michigan.gov/sos/0,4670,7-127-1633_91141---,00.html">Independent Citizens Redistricting Commission</a>. By November 2021, the group will draw election districts used to elect officials to the Michigan Legislature and the U.S. House of Representatives. </p>
<p>The redistricting process occurs every 10 years, after the Census Bureau determines how many representatives are allocated to each state. Historically, state legislatures have been responsible for redistricting. </p>
<p>But throughout U.S. history gerrymandering – drawing election districts to favor the political party that controls the state legislature – has <a href="https://www.americanprogress.org/issues/democracy/news/2019/10/01/475166/impact-partisan-gerrymandering/">characterized the redistricting process</a>.</p>
<p><a href="https://www.brennancenter.org/our-work/court-cases/current-partisan-gerrymandering-cases">Gerrymandering has often been challenged in court</a> as a violation of the Constitution’s equal protection clause and on other grounds. But in 2019 the <a href="https://www.law.cornell.edu/supremecourt/text/18-422">Supreme Court held that federal courts</a> may not hear such claims because they represent a “political question” that is unsuited for resolution by the courts. </p>
<p>The high court held that such issues should be resolved by the legislative and executive branches of government. </p>
<p><a href="https://ballotpedia.org/State-by-state_redistricting_procedures">Seven states have withdrawn the authority</a> to draw U.S. House election districts from legislatures and assigned it to independent commissions. The procedures for selecting the members of these commissions vary, but in most states they are chosen by state legislators or judges. </p>
<p>Michigan’s commission, created by a <a href="https://votersnotpoliticians.com/redistricting/">2018 ballot initiative</a>, is unique. As a professor who teaches <a href="https://law.wayne.edu/profile/aj8419">constitutional law</a> and, occasionally, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020397">ancient Athenian law</a>, I am fascinated by the fact that Michigan’s seemingly novel experiment in governance is based on a process that is thousands of years old. </p>
<h2>The 13 commissioners</h2>
<p>Unlike any other state, Michigan selected its 13 commission members almost entirely by lot from among those who applied for the position. </p>
<p>All Michigan registered voters who met the eligibility criteria – which excluded holders of political office and lobbyists, for example – were eligible to apply. </p>
<p><a href="https://www.michigan.gov/som/0,4669,7-192-47796-532639--,00.html">From 9,367 applicants</a>, the secretary of state randomly selected 200 semifinalists. The process resulted in 60 Democrats, 60 Republicans and 80 independents. By the terms of the ballot initiative, the four leaders of the Michigan Legislature then eliminated 20 of those semifinalists. </p>
<p>In August 2020, the secretary of state <a href="https://www.mlive.com/public-interest/2020/08/13-commissioners-randomly-selected-to-draw-new-district-lines-for-michigan-house-senate.html">randomly selected the 13 commissioners</a> from the pool of 180 candidates – four Democrats, four Republicans and five independents, as required.</p>
<p>The commission – made up of citizens with no special qualifications for the office – will now perform one of the most important roles in a democratic system: creating the districts from which Michigan’s state and federal legislators will be elected.</p>
<h2>Random selection in ancient Athens</h2>
<p>With the exception of court juries, the random selection of citizens to fill government office is almost unheard of. But it was not always that way. </p>
<p>Random selection was a prominent <a href="https://www.ancient.eu/Athenian_Democracy/">feature of ancient Athens</a>, the birthplace of democracy. In the fifth and fourth centuries B.C., most important government offices were filled by lottery. The Athenians considered this selection of officials a hallmark of democracy.</p>
<p>These included the <a href="http://www.stoa.org/demos/article_democracy_overview@page=6&greekEncoding=UnicodeC.html">500 members of the Council</a>. This body proposed legislation for the agenda of the Assembly – composed of all free male adult citizens who chose to attend and the centerpiece of Athenian direct democracy. It also handled diplomatic relations between Athens and other states and appointed the members of administrative bodies. </p>
<p>Those selected by lot also included the nine chief officials of the city-state, <a href="https://erenow.net/ancient/ancient-greece-and-rome-an-encyclopedia-for-students-4-volume-set/268.php">the Archons</a>, who had executive and judicial responsibilities. About 1,100 officials were selected annually by lot, from a citizen population of about 25,000. </p>
<p>According to the Athenian historian Xenophon, the philosopher Socrates, who was sentenced to death by an Athenian jury for his unorthodox views, thought that the Athenians were foolish to entrust the selection of the bulk of government officials to chance: <a href="http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0208%3Abook%3D1%3Achapter%3D2%3Asection%3D9">Nobody would select “a pilot or builder or flautist by lot,”</a> so why trust to chance the selection of government officials who, if unsuited to their responsibilities, could harm the community?</p>
<p>The Athenians agreed with Socrates to an extent. In Athens an additional 100 or so officials were elected by the Assembly, not selected by lot. They included the 10 generals responsible for commanding the Army and Navy. The Athenians thought the generals’ role was too important, and too dependent on skills possessed by few citizens, to allow the choice to be made randomly.</p>
<h2>Evaluating the Michigan plan</h2>
<p>How, then, should Michigan’s decision to assign unskilled members of the public the job of drawing nonpartisan election districts be evaluated?</p>
<p>Redistricting is a complex task. <a href="http://legislature.mi.gov/doc.aspx?mcl-Article-IV-6">Michigan’s Constitution</a> says that the districts must be drawn in compliance with federal law. That includes a requirement that voting districts have roughly the same population. It also requires that the districts “reflect the state’s diverse population and communities of interest,” and “not provide a disproportionate advantage to any political party.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&rect=89%2C71%2C3796%2C2437&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359184/original/file-20200921-24-1udtjvd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">U.S Representative Dan Kildee, D-Mich., speaks outside of the U.S. Supreme Court to call for an end to partisan gerrymandering on Oct. 3, 2017 in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/representative-5th-district-michigan-dan-kildee-speaks-news-photo/857088010?adppopup=true">Olivier Douliery/Getty Images</a></span>
</figcaption>
</figure>
<p>Dividing the map to meet all of these criteria is not likely to be within the capabilities of a group of randomly selected citizens. </p>
<p>There are several reasons to think that the redistricting commission will nevertheless prove adequate to the task. </p>
<p>First, the constitution authorizes the commission to hire “independent, nonpartisan subject-matter experts and legal counsel” to assist them. Second, there’s precedent in government for citizens who have no specialized skills: Juries composed of randomly selected citizens regularly decide cases that are enormously complicated. An antitrust case may involve thousands of pages of documents. And a patent infringement case may require an understanding of complex engineering issues.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p>
<p>Finally, considering how far the <a href="https://www.detroitnews.com/story/news/politics/2019/04/25/michigan-gerrymandering/3576663002/">Michigan Legislature’s efforts have fallen short</a> of achieving the fundamental democratic goal of selecting representatives who reflect the views of their constituents, there is reason to think that a balanced group of unskilled citizens will do better. </p>
<p>A <a href="https://www.michiganradio.org/post/report-quantifies-michigans-very-real-gerrymandering-problem">2018 report</a> by the nonpartisan Citizens Research Council of Michigan found that the state’s election districts are “highly-gerrymandered, with current district maps drawn so that Republicans are ensured disproportionate majorities on both the state and federal levels.” </p>
<p>Michigan has drawn upon ancient wisdom to redesign its redistricting process. The goal is to enable voters to select representatives who truly reflect their political preferences. If more states follow Michigan’s lead, the impact on the makeup of legislative bodies throughout the country could be profound.</p><img src="https://counter.theconversation.com/content/143892/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Rothchild does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To overhaul an election redistricting process tainted by gerrymandering, Michigan has adopted a governance mechanism prominent 2,500 years ago in ancient Athens, the birthplace of democracy.John Rothchild, Professor of Law, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1462762020-09-25T12:23:42Z2020-09-25T12:23:42ZVotes cast in November will shape Congress through 2030<figure><img src="https://images.theconversation.com/files/359435/original/file-20200922-24-8u06hh.jpg?ixlib=rb-1.1.0&rect=33%2C0%2C3720%2C2478&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A small sliver of a congressional district in Pennsylvania crossed four counties, on a map that was ruled to be a partisan gerrymandering plan.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedrawingAmericaImbalanceofPower/28384d0ebdd74ec7b7042d734c674edf/photo">AP Photo/Keith Srakocic</a></span></figcaption></figure><p>When voters cast their ballots in November, they won’t just decide who will be president in 2021 – they will also have a voice in determining the partisan makeup of Congress until 2030. Following each census, which happens every 10 years, states are required to <a href="https://www.brennancenter.org/issues/gerrymandering-fair-representation/redistricting/redistricting-2021">adjust their congressional district boundaries</a> to keep district populations <a href="https://www.law.cornell.edu/wex/one-person_one-vote_rule">equal</a>.</p>
<p>District boundaries can profoundly shape election results – most notably when they are drawn in ways that <a href="https://theconversation.com/want-to-fix-gerrymandering-then-the-supreme-court-needs-to-listen-to-mathematicians-114345">benefit one political party or the other</a>.</p>
<p>In the 2011 redistricting after the 2010 census, for example, <a href="https://www.washingtonpost.com/news/wonk/wp/2018/02/06/how-pennsylvania-republicans-pulled-off-their-aggressive-gerrymander/">Pennsylvania’s Republican-led legislature</a> drew up districts that significantly disadvantaged Democrats. In the state’s 2012 congressional elections, Democrats won a majority of the votes, but <a href="https://www.inquirer.com/philly/news/pennsylvania-gerrymandering-districts-supreme-court-20170814.html">Republicans won two-thirds of the state’s 18 seats</a> in Congress. Our research has found that similarly biased redistricting – called partisan gerrymandering – is <a href="https://doi.org/10.1093/oso/9780190934163.003.0005">common across the country</a>.</p>
<p>Most states give the power to draw new boundaries <a href="https://www.ncsl.org/research/redistricting/redistricting-systems-a-50-state-overview.aspx">to their legislatures</a>. So when voters in November pick among the candidates for state legislatures, they are choosing <a href="https://theconversation.com/after-supreme-court-decision-gerrymandering-fix-is-up-to-voters-117307">the people who will make the new electoral maps</a>. That means the 2020 election will potentially affect the balance of power and the <a href="https://theconversation.com/4-reasons-gerrymandering-is-getting-worse-105182">degree of partisan conflict</a> in the House of Representatives for the next decade.</p>
<p><iframe id="8oSGs" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/8oSGs/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Legislators often draw biased lines</h2>
<p>In drawing new boundaries, state legislators usually have very few constraints. The U.S. Constitution requires that each congressional district should represent a <a href="https://www.law.cornell.edu/constitution/articlei#section2">roughly equal number of people</a> – except in states with too few people to have multiple districts – Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming. They all get at least one representative in Congress.</p>
<p>But other than that, state lawmakers make their own rules. So it’s not surprising that congressional district lines tend to unfairly advantage the party whose members are a majority of the group drawing the lines. </p>
<p>In the seven small, single-district states and the District of Columbia, this isn’t a problem because the state boundaries are also those of the congressional district. In five others – Hawaii, Idaho, Maine, New Hampshire and Rhode Island – there are only enough people to warrant two congressional districts, making it statistically impossible to manipulate district boundaries to advantage one party.</p>
<p>But of the remaining 38 states, our analysis found that <a href="https://doi.org/10.1093/oso/9780190934163.003.0005">22 created gerrymandered districts</a> that benefited one party or the other. Other political scientists have come to <a href="https://www.cambridge.org/core/books/gerrymandering-in-america/C2A9A40879A353AC7484B49834CB54E4">similar conclusions</a> after their own analyses. This is true despite the natural, nongerrymandered <a href="http://dx.doi.org/10.1561/100.00012033">tendency for like-minded people</a>, especially Democrats, to live near each other.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C3988%2C2658&q=45&auto=format&w=1000&fit=clip"><img alt="A man points at two maps of Pennsylvania congressional districts." src="https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C3988%2C2658&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359426/original/file-20200922-20-1f6g3qw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Pennsylvania civics teacher points at new and old congressional district maps in his state following a 2018 court decision.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedrawingAmericaImbalanceofPower/671099e5e981442a97794165df5f0bbc/photo">AP Photo/Keith Srakocic</a></span>
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</figure>
<p>Most of the partisan gerrymandering created after the 2010 census benefited the Republican Party. That is because <a href="https://www.rasmussenreports.com/public_content/political_commentary/commentary_by_tim_storey/gop_makes_historic_state_legislative_gains_in_2010">Republicans won control of many state legislatures</a> in the 2010 elections, and then delivered congressional districts in their favor. </p>
<p>The bias from partisan gerrymandering was <a href="https://doi.org/10.1111/ssqu.12743">so high after the 2010 round of redistricting</a>, particularly in seven states – Michigan, North Carolina, Pennsylvania, Ohio, Wisconsin, Virginia and Florida – that the <a href="https://www.nytimes.com/2013/02/03/opinion/sunday/the-great-gerrymander-of-2012.html">2012 elections</a> produced a House of Representatives <a href="https://doi.org/10.1089/elj.2017.0464">controlled by the Republican Party</a> even though Democratic congressional candidates won more votes nationwide. </p>
<p>The 2020 state legislative elections will be similarly decisive of who will control the redistricting process, and what congressional elections will look like for the next decade. </p>
<h2>Reforming the process</h2>
<p>There are efforts to fix the redistricting process. In 2019, the Supreme Court <a href="https://www.oyez.org/cases/2018/18-422">effectively barred federal courts</a> from considering whether partisan gerrymanders are constitutional, so reformers must <a href="https://theconversation.com/after-supreme-court-decision-gerrymandering-fix-is-up-to-voters-117307">look elsewhere for a solution</a>.</p>
<p><a href="https://www.theatlantic.com/politics/archive/2019/01/schwarzenegger-and-obama-backing-redistricting-reform/580240/">Reform movements</a> are working to take control of district boundaries <a href="https://apnews.com/4d2e2aea7e224549af61699e51c955dd">out of the hands of legislators</a>. </p>
<p>Several states have pioneered ways to draw their congressional boundaries more fairly. In <a href="https://ballotpedia.org/New_York_Redistricting_Commission_Amendment,_Proposal_1_(2014)">New York</a>, for instance, there is a commission that will advise lawmakers on potential maps that avoid partisan advantages. In <a href="https://azredistricting.org/default.asp">Arizona</a> and <a href="https://wedrawthelines.ca.gov/">California</a>, independent commissions have complete control over the district boundaries. </p>
<p>In New Jersey and Hawaii, commissions made up of politicians and political appointees draw the boundaries. And in three states – Connecticut, Indiana and Ohio – the legislature gets a first attempt to draw the boundaries, but must relinquish power to an independent commission if lawmakers can’t agree.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two people point at a map" src="https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=451&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=451&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=451&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=567&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=567&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359428/original/file-20200922-24-zuldqj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=567&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Two people discuss a detail of a district map at a 2011 meeting of Arizona’s nonpartisan redistricting commission.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RedrawingAmericaImbalanceofPowerReforms/85e912b50b1f434a89effa37659ebe96/photo">AP Photo/Ross D. Franklin</a></span>
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<p>In some states, citizens have created independent redistricting commissions by popular referendum – through ballot propositions or initiatives – when legislators didn’t want to strip themselves of this key power. <a href="https://www.washingtonpost.com/national/voters-are-stripping-partisan-redistricting-power-from-politicians-in-anti-gerrymandering-efforts/2018/11/07/2a239a5e-e1d9-11e8-b759-3d88a5ce9e19_story.html">Colorado, Michigan</a> and <a href="https://ballotpedia.org/Utah_Proposition_4,_Independent_Advisory_Commission_on_Redistricting_Initiative_(2018)">Utah</a> all did this in 2018. Voters in Virginia will be given an option in the 2020 election to <a href="https://ballotpedia.org/Virginia_Question_1,_Redistricting_Commission_Amendment_(2020)">hand redistricting authority over to an independent commission</a>.</p>
<p>Our research and others’ has found that commissions of all types tend to <a href="https://doi.org/10.33774/apsa-2019-xgt3p">produce maps that are less biased</a> <a href="https://www.washingtonpost.com/politics/2019/07/02/heres-how-fix-partisan-gerrymandering-now-that-supreme-court-kicked-it-back-states/">than legislative ones</a>.
However, redistricting reforms in some states are <a href="https://www.washingtonpost.com/outlook/in-ballot-initiatives-they-made-their-voices-heard-then-came-the-backlash/2020/03/13/5b40220e-526e-11ea-b119-4faabac6674f_story.html">now facing</a> a <a href="https://www.brennancenter.org/our-work/analysis-opinion/redistricting-reform-under-threat">backlash</a> from state lawmakers who are attempting to reclaim power over the redistricting process through legislation, lawsuits or ballot measures of their own.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>In presidential election years, the public is obviously focused on the race for the White House, but the decisions voters make in state legislative races affect the partisan composition of Congress for years to come. Without <a href="https://theconversation.com/after-supreme-court-decision-gerrymandering-fix-is-up-to-voters-117307">changes in who draws district lines</a>, the U.S. is likely to enter another decade in which <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/26/yes-gerrymandering-is-getting-worse-and-will-get-worse-still-this-explains-why">congressional elections are shaped</a> not by everyday voters but by <a href="https://theconversation.com/4-reasons-gerrymandering-is-getting-worse-105182">those who hold the power</a>.</p><img src="https://counter.theconversation.com/content/146276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When voters in November pick among the candidates for state legislatures, they are choosing the people who will make the new electoral maps for congressional elections.Robin E. Best, Associate Professor of Political Science, Binghamton University, State University of New YorkSteve B. Lem, Professor of Political Science and Public Administration, Kutztown University of PennsylvaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209572019-08-08T13:13:26Z2019-08-08T13:13:26ZTrump’s fight to count US citizens and non-citizens: 5 questions answered<figure><img src="https://images.theconversation.com/files/287092/original/file-20190806-84215-sh9psl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A worker follows up during the 2020 census test run in Providence, R.I.</span> <span class="attribution"><a class="source" href="https://www.census.gov/programs-surveys/decennial-census/2018-census-test/photos.html">U.S. Census Bureau</a></span></figcaption></figure><p>The U.S. is still months away from the start of the 2020 census – but the decennial count of the country’s population is <a href="https://www.washingtonpost.com/opinions/2019/07/12/we-just-dodged-constitutional-crisis-with-census/">already controversial</a>.</p>
<p><a href="https://www.washingtonpost.com/politics/trump-to-hold-news-conference-on-census-as-he-mulls-executive-action-to-add-a-citizenship-question/2019/07/11/c0eb7cb6-a3c8-11e9-b8c8-75dae2607e60_story.html">After the Supreme Court’s decision at the end of June</a>, President Donald Trump conceded that the administration would no longer pursue <a href="https://www.scotusblog.com/2019/07/trump-administration-ends-effort-to-include-citizenship-question-on-2020-census/">a citizenship question on the 2020 U.S. Census</a>. </p>
<p>Instead, Trump announced that he signed an <a href="https://www.whitehouse.gov/presidential-actions/executive-order-collecting-information-citizenship-status-connection-decennial-census/">executive order</a> instructing the executive branch to share all citizenship data with the U.S. Census. He suggested that the augmented data could be used in the apportionment and redistricting processes.</p>
<p>I have studied and taught <a href="https://scholar.google.com/citations?user=Hr8LJkQAAAAJ&hl=en">how the U.S. apportions seats in Congress and redraws congressional districts</a> for two decades. These topics have been of paramount importance to democratic representation since, at least, the founding of the U.S. And both are critical for the future legitimacy of the American government after the 2020 Census. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287090/original/file-20190806-84199-jtf27w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump speaks during an event about the census in the Rose Garden at the White House in Washington on July 11.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump/85b4822ff6a94936a113c13e8426265d/25/0">AP Photo/Carolyn Kaster</a></span>
</figcaption>
</figure>
<h2>1. Who’s included in congressional apportionment?</h2>
<p>The U.S. Constitution calls on “<a href="https://www.law.cornell.edu/constitution/amendmentxiv">the whole number of persons in each state</a>” – also referred to as “total population” – to be counted by the U.S. Census. This number is used to determine how many congressional seats each state receives each decade. </p>
<p>The Census’ count currently includes everyone. It does not matter whether or not someone is a citizen, a voter, a minor or a felon.</p>
<p>Even though the constitutional definition seems intuitive, <a href="https://www.census.gov/topics/public-sector/congressional-apportionment/about/historical-perspective.html">there have been deviations from it</a>. </p>
<p>African American slaves were counted as just three-fifth of a person, pointedly not a citizen, in the total apportionment population until 1870. And only in 1940 were all Native Americans considered part of the total population. </p>
<p>Furthermore, overseas federal employees, service members and their families were first included in the total population in 1970, but were then not included in 1980. They have been re-included since 1990.</p>
<p>Apportionment’s total population has always included citizens and non-citizens alike. </p>
<h2>2. How many non-citizens are in the US?</h2>
<p>The U.S. Census has not asked a citizenship question on its <a href="https://www.nytimes.com/2019/07/12/us/the-long-history-of-the-us-government-asking-americans-whether-they-are-citizens.html">commonly used short form since the 1950 census</a>. </p>
<p>Still, the <a href="https://www.census.gov/programs-surveys/acs/about.html">American Community Survey</a> (ACS), which is conducted by the U.S. Commerce Department every year since 2005, does include citizenship questions.</p>
<p>According to the ACS, the percentage of all non-citizens in the U.S. has decreased slightly from 2005 through 2017, the last year for which data is available. In 2017, non-citizens made up 6.9% of the overall population, which corresponds to about 22.6 million people.</p>
<p>In 2017, the state with the largest percentage of non-citizens was California (13%), followed by Texas, New Jersey, Nevada and New York. The states with the smallest percent of non-citizens are West Virginia, Montana, Mississippi, Maine and South Dakota.</p>
<p><iframe id="BZk71" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/BZk71/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>3. How would apportionment change if non-citizens were excluded?</h2>
<p>Say the estimated number of non-citizens in 2010 had been removed from the 2010 apportionment population.</p>
<p>In the <a href="https://www.washingtonpost.com/politics/2019/06/20/democrats-are-considering-making-dc-state-heres-what-it-would-take/?utm_term=.ecbbf6863fa1">current method</a> to apportion to the states the 435 seats in the U.S. House, every state receives at least one seat. </p>
<p>According to their citizen populations, 15 states would be affected. Five states would lose members from their current congressional delegations: California would lose five seats, Texas would lose two seats, and Florida, New York and Washington would each lose one seat. </p>
<p>These 10 seats would be added, one seat each, to the current delegations of Indiana, Iowa, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Oklahoma and Pennsylvania. </p>
<p>Given the recent partisan history of these states, this overall transfer of seats would likely provide Republicans with more electoral opportunities. </p>
<p>If the U.S. House were reapportioned with the most current 2017 population and citizenship data, the changes would be a little less severe. With the non-citizens not counted, three states would lose House seats: California (four seats), Texas (two seats) and Florida (one seat). </p>
<p>Seven states would also gain an additional seat: Louisiana, Michigan, Minnesota, Missouri, Montana, Pennsylvania and West Virginia.</p>
<h2>4. How would excluding non-citizens affect Americans?</h2>
<p>In terms of congressional apportionment, citizens and non-citizens have linked fates.</p>
<p>If non-citizens were removed from the total population count, the same number of citizens could be served by fewer representatives. For example, citizens in states like California, Texas and Florida could have their representational power in the U.S. House diluted from what it otherwise would be. </p>
<p>One way to measure representational power is to calculate the percent of a representative that each person has. According to the 2017 data, if non-citizens are not counted in the apportionment, a citizen of California would lose about 8% of her representational power, and a Texan would lose about 5%.</p>
<p>Furthermore, citizens and non-citizens alike use the roads, schools and the rest of the public infrastructure. But, by not including non-citizens, these same states could receive fewer <a href="https://www2.census.gov/programs-surveys/decennial/2020/program-management/working-papers/Uses-of-Census-Bureau-Data-in-Federal-Funds-Distribution.pdf">federal funds</a>, which would decrease the amount of federal funds that ultimately flow to citizens.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287089/original/file-20190806-84199-1cdp92x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Demonstrators gathered at the Supreme Court as the justices finished the term with key decisions on gerrymandering and the 2020 census.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Final-Day/f46dcc78af544bf59022f665795c0bac/111/0">AP Photo/J. Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>5. What will happen next?</h2>
<p>Despite Trump’s executive order, it is unlikely that survey data, such as the ACS’, could be used to augment the Census data for the purposes of changing congressional apportionment. In <a href="https://www.oyez.org/cases/2001/01-714">Utah v. Evans in 2002</a>, Republicans vehemently argued, and the Supreme Court agreed, that surveys of a portion of the U.S. population could not be used to adjust the actual enumeration by the U.S. Census.</p>
<p>However, if this apportionment standard were to change, there would be considerable political and financial consequences. But, it would also likely have greater affects on redistricting.</p>
<p>Any change in the apportionment measure of total population would certainly give the court and the states much more latitude to change the measure for the redistricting population. </p>
<p>Redistricting, however, is not limited by fixed state boundaries in the same way as apportionment is. Changing the population definition for redistricting – along with the <a href="https://www.washingtonpost.com/politics/courts_law/supreme-court-says-federal-courts-dont-have-a-role-in-deciding-partisan-gerrymandering-claims/2019/06/27/2fe82340-93ab-11e9-b58a-a6a9afaa0e3e_story.html">newly expanded power to redistrict</a>, which was recently provided by the Supreme Court – would produce the potential for <a href="https://www.washingtonpost.com/politics/gop-consultants-private-files-viewed-in-gerrymandering-case/2019/07/02/5820394c-9cb6-11e9-83e3-45fded8e8d2e_story.html">extreme gerrymandering</a> and could even more severely reduce citizen’s representational power.</p>
<p>[<em>Want to learn more about the 2020 census?</em> <a href="https://theconversation.com/us/newsletters/census-72">Sign up here for our new newsletter course</a>.]</p><img src="https://counter.theconversation.com/content/120957/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey W Ladewig does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 2020 census and congressional apportionment have dominated the headlines in recent months. What could it all mean for the average American voter?Jeffrey W Ladewig, Associate Professor of Political Science, University of ConnecticutLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1195672019-06-28T18:36:03Z2019-06-28T18:36:03ZWhy the Supreme Court asked for an explanation of the 2020 census citizenship question<p>Immediately before the Supreme Court’s summer recess each year, it releases decisions in some of its most challenging and significant cases. </p>
<p>This year was no different. </p>
<p>On June 27, the last day of the term, the Supreme Court decided <a href="https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/">Department of Commerce v. New York</a>, a case exploring legal issues surrounding the addition of the question, “Is this person a citizen of the United States?,” on the 2020 census. </p>
<p>The decision is of great practical importance, as the final numbers generated by the census will affect representation in Congress, allocation of federal dollars and much more. The political implications of the citizenship question made the case politically volatile and controversial.</p>
<p>In an opinion by Chief Justice Roberts, the court chose not to accept
what may well be the Trump administration’s pretext for the citizenship question to mask partisan political and discriminatory motives. </p>
<p>As a <a href="https://www.scotusblog.com/author/kevinjohnson/">scholar of</a> <a href="https://law.ucdavis.edu/faculty/johnson/">immigration law and civil rights</a>, I was not surprised by the outcome. The court decided the case in a way that will help maintain its legitimacy in the future. </p>
<h2>Census influence</h2>
<p>Because the census is conducted only once every 10 years, it can affect close to a generation of policies. </p>
<p>By influencing electoral districting, the census can affect political representation in Congress, as well as the relative numbers in Congress from the two major political parties. That, in turn, affects how federal money is spent and which groups and programs are preferred or disfavored. Put simply, the census has dramatic political impacts on the entire nation.</p>
<p>In 2018, Wilbur Ross, the U.S. Secretary of Commerce under President Trump, announced that the Bureau of the Census intended to <a href="https://www.npr.org/2019/04/23/630562915/see-200-years-of-twists-and-turns-of-census-citizenship-questions">add a question about U.S. citizenship</a> in the form sent to all households in the 2020 census. The proposed question would in fact be a readdition, because some form of that question had been in census questionnaires in the past. </p>
<p>The Trump administration said that the citizenship question would improve enforcement of the Voting Rights Act, which protects the voting rights of citizens. However, opponents claimed that the question was motivated by partisan political considerations, including voter suppression and an effort to systematically undercount immigrants, particularly Hispanics.</p>
<p>In an ideal world, a count of noncitizens could be beneficial to policymakers and researchers. </p>
<p>For example, a city could use the number to establish a need for resources to facilitate naturalization and other immigrant services. States with large immigrant populations would know about how much federal funding was needed to cover immigrants’ costs incurred in public education and English as a second language courses.</p>
<p>However, civil rights groups and immigrant rights activists were concerned that, especially with President Trump at the helm, a citizenship question would <a href="https://www.brennancenter.org/blog/why-census-asking-about-citizenship-such-problem">discourage immigrants from participating in the census</a>, for fear that answering the question truthfully might lead to their removal from the country by the very administration collecting the data.</p>
<p>If that turned out to be true, immigrants might well be chilled from participating in the census. The result would be <a href="https://theconversation.com/adding-a-citizenship-question-to-the-2020-census-would-cost-some-states-their-congressional-seats-113166">an inaccurate – and low – count of immigrants</a>.</p>
<h2>The decision</h2>
<p>The court held that the proposed citizenship question does not violate the Constitution, which vests broad discretion in the U.S. government in deciding how to conduct the census. </p>
<p>They also ruled that Ross’ decision did not violate the Administrative Procedure Act. This act requires that certain procedures be followed in administrative decisions and that agency officials offer reasoned and rational explanations for their decisions. </p>
<p>However, Roberts, in a part of the opinion joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, ruled that the Department of Commerce needed to provide further explanation for adding the question. The court said that the Department of Commerce’s claim that the citizenship question was solely designed to help Voting Right Act enforcement seemed “contrived.” </p>
<p>The chief justice further wrote that, “Our review is deferential, but we are ‘not required to exhibit a naivete from which ordinary citizens are free,’” quoting legendary Judge Henry Friendly.</p>
<p>Some court observers were surprised by the outcome. </p>
<p><a href="https://www.scotusblog.com/2019/04/argument-analysis-divided-court-seems-ready-to-uphold-citizenship-question-on-2020-census/">After oral argument in April</a>, some had predicted that five justices favored the citizenship question and that <a href="https://www.scotusblog.com/2019/04/judicial-enumeration-amy-howe-and-kimberly-robinson-count-five-justices-for-the-citizenship-question-in-department-of-commerce-v-new-york/">the court would allow the question</a> for the 2020 census. </p>
<p>However, in May, new evidence came to light that that the citizenship question was adopted for <a href="https://www.scotusblog.com/2019/05/challengers-in-census-case-notify-justices-about-new-evidence/">reasons other than enforcing the Voting Rights Act</a>. </p>
<p><a href="https://www.vox.com/policy-and-politics/2019/6/12/18663009/census-citizenship-question-congress">Emails show that</a>, for months, Wilbur Ross had inquired about adding a citizenship question, asking around to see if it was a popular idea. Commerce Department officials had tried to get other agencies involved to “clear certain legal thresholds” to ask the question. As almost an afterthought, Ross and the Department of Commerce asked the Department of Justice to send them a letter providing the Voting Rights Act rationale for the citizenship question. </p>
<p>None of this evidence tends to support the conclusion that enforcing the Voting Rights Act was the true reason that the Department of Commerce sought to add a citizenship question to Census 2020.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/281816/original/file-20190628-94720-67pr3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A citizenship question could discourage immigrants from participating in the 2020 census.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/new-york-nyusajanuary-12-2010-sample-1379490593?src=pGMg0x6R-kjZ-OToYS9kSQ-1-4&studio=1">rblfmr/Shutterstock.com</a></span>
</figcaption>
</figure>
<h2>The Supreme Court’s legitimacy</h2>
<p>As former New York Times Supreme Court reporter and Yale lecturer Linda Greenhouse has written, Roberts is <a href="https://www.nytimes.com/2019/06/06/opinion/supreme-court-census-roberts.html">concerned with the perceived legitimacy of the court</a>. </p>
<p>Chief Justice Roberts has gone so far as to criticize President Trump for criticizing an “Obama judge.” <a href="https://www.politico.com/story/2018/11/21/supreme-court-chief-justice-john-roberts-calls-out-trump-for-his-attack-on-a-judge-1011203">In a November 2018 statement</a> virtually unheard of from a chief justice, Roberts said “We do not have Obama judges or Trump judges, Bush judges or Clinton judges … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” The chief was defending the independence – and in effect the very legitimacy – of the federal courts, which he understood to be under attack by the president.</p>
<p>Given the weak justification for the citizenship question, rubber-stamping the citizenship question without further inquiry could well have been a stain on the court’s legitimacy. </p>
<p>Just days before the Supreme Court handed down the decision in the census case, an appellate court had opened the door for further investigation into <a href="https://www.scotusblog.com/2019/06/government-responds-in-census-case-4th-circuit-remands-maryland-case-for-more-fact-finding/">whether anti-Hispanic animus played a role</a> in the secretary’s decision to include the citizenship question. </p>
<p>This is a serious charge. To allow the citizenship question to be added to the census, in light of uninvestigated claims of anti-Hispanic animus and in the face of unquestionable anti-Hispanic impacts, could undermine the public trust in – and the very legitimacy of – the Supreme Court. </p>
<p>It has historically been challenging to <a href="https://www.npr.org/2019/06/04/728034176/2020-census-could-lead-to-worst-undercount-of-black-latinx-people-in-30-yearsoop">facilitate immigrant participation in the census</a>. In immigrant communities, <a href="https://www.vox.com/policy-and-politics/2018/3/5/17071648/impact-trump-immigration-policy-children">fear of government</a> has increased during the Trump administration. Indeed, just in the last few weeks, Trump threatened <a href="https://lawprofessors.typepad.com/immigration/2019/06/trump-delays-immigration-raids-giving-democrats-two-weeks-to-change-asylum-laws-.html">an imminent mass removal campaign</a>, only to temporarily halt the effort at the eleventh hour. </p>
<p>The court might well have learned a lesson from its decision to uphold the travel ban last year, also on the last day of the term. In <a href="https://www.oyez.org/cases/2017/17-965">Trump v. Hawaii</a>, a 5-4 majority in an opinion by Chief Justice Roberts overlooked the evidence of the Trump administration’s anti-Muslim intent in adopting the ban and upheld it based on national security grounds. <a href="https://law.stanford.edu/2018/06/26/trump-v-hawaii-a-roadmap-for-new-racial-origin-quotas/">The decision was widely criticized</a> by scholars and civil rights and immigrant advocates as authorizing discrimination.</p>
<p>Time will tell how the Trump administration proceeds from here. However, it would appear that a rational – not a “contrived” – explanation would be required.</p>
<h2>The legal rationale</h2>
<p>The court’s decision, for the most part, does not state explicitly – which would be unprecedented – that it sought to protect its legitimacy. And it avoids going too far in criticizing the decision to use the citizenship question. </p>
<p>Indeed, the court found that the decision to include the question was not “arbitrary and capricious” in violation of the law. It simply said that the Department of Commerce’s explanation was not convincing and a rational – not a “contrived” – explanation would be required.</p>
<p>It is telling that Roberts, who is keenly concerned about the court’s legitimacy, sided with the liberal justices in order to send the case back to the agency. </p>
<p>Roberts, who famously said during his confirmation hearings that <a href="http://www.cnn.com/2005/POLITICS/09/12/roberts.statement/">a judge’s job is to call “balls and strikes,”</a> resists the notion that the Supreme Court is a political institution – and did so, I believe, with this decision.</p><img src="https://counter.theconversation.com/content/119567/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The political implications of the citizenship question made this case politically volatile and controversial – even for the Supreme Court.Kevin Johnson, Dean and Professor of Public Interest Law and Chicana/o Studies, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1173072019-06-27T19:56:45Z2019-06-27T19:56:45ZAfter Supreme Court decision, gerrymandering fix is up to voters<figure><img src="https://images.theconversation.com/files/281655/original/file-20190627-76738-1newx1a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court is empty days before the justices vote to on the U.S. gerrymandering case.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court/8045bf3b4aa341ffbd693730fe6a043c/25/0">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>In a <a href="https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf">5-4 decision</a> the Supreme Court has ruled that partisan gerrymandering is not unconstitutional. </p>
<p>The majority ruled that gerrymandering is outside the scope and power of the federal courts to adjudicate. The issue is a political one, according to the court, not a legal one. </p>
<p>“Excessive partisanship in districting leads to results that reasonably seem unjust,” wrote Chief Justice John Roberts in the majority decision. “But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary.”</p>
<p>So for now, partisan gerrymandering, in which politicians get to choose their voters rather than voters choose their representatives, will remain a fact of American political life. </p>
<p>What is the background to this decision? And what does the decision mean for democracy in the U.S.? </p>
<h2>Cracking and packing</h2>
<p><a href="https://ballotpedia.org/State-by-state_redistricting_procedures">State legislatures have the constitutional responsibility</a> to draw up the boundaries of congressional seats after the results of the census, which is conducted every 10 years. </p>
<p>In many states, if one party is in the majority at that time, they can use their power to manipulate the boundaries to their advantage. That’s called <a href="http://www.redistrictinggame.org/glossary.php">partisan gerrymandering</a>, and it involves what’s referred to as “<a href="http://www.redistrictinggame.org/learnaboutmission2.php">cracking and packing</a>.” </p>
<p>Cracking spreads opposition voters thinly across many districts to dilute their power. Packing concentrates opposition voters in fewer districts to reduce the number of seats they can win.</p>
<p>Just one example: <a href="https://www.apnews.com/6e3823d62eb44681aa3231f4cbf2766a">In 2012, Republicans in Ohio</a> drew up congressional boundaries that packed most Democratic voters into just four of the 16 congressional districts. The 9th District was referred to as the <a href="https://theconversation.com/ohio-strikes-blow-against-gerrymandering-48748">“snake on the lake”</a> as it slithered along the edge of Lake Erie from Cleveland to Toledo to pack in as many Democratic voters as possible. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=292&fit=crop&dpr=1 600w, https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=292&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=292&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=366&fit=crop&dpr=1 754w, https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=366&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/281660/original/file-20190627-76743-o7ypcu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=366&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The gerrymandered 9th Ohio U.S. Congressional District, known as ‘the snake on the lake.’</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Ohio_US_Congressional_District_9_(since_2013).tif#/media/File:Ohio_US_Congressional_District_9_(since_2013).tif">US Department of the Interior via Wikipedia</a></span>
</figcaption>
</figure>
<p>It worked. <a href="https://expo.cleveland.com/news/erry-2018/11/0f32e762411182/ohio-democrats-outpolled-repub.html">In the 2018 election</a>, Ohio Republicans won just 52% of the votes but picked up 12 of 16 of the congressional seats. </p>
<p>I have researched the <a href="https://theconversation.com/campaign-season-is-moving-into-high-gear-your-vote-may-not-count-as-much-as-you-think-101764">U.S. voting system</a>, analyzed <a href="https://doi.org/10.1080/21622671.2013.875938">Supreme Court rulings</a> and shown why <a href="https://theconversation.com/4-reasons-gerrymandering-is-getting-worse-105182">gerrymandering is now more prevalent</a> since the 1990s. Sophisticated computer programs and ever more detailed information on voters’ location and preferences now allow politicians to crack and pack with surgical precision. </p>
<p>In 2004, the Supreme Court effectively sanctioned gerrymandering. In <a href="https://www.oyez.org/cases/2003/02-1580">Vieth v. Jubelirer</a>, the court ruled 5-4 not to intervene in a case brought by Democrats in Pennsylvania over a redistricting plan they claimed was unconstitutionally gerrymandered. </p>
<p>After the ruling, <a href="https://www.cambridge.org/core/books/gerrymandering-in-america/C2A9A40879A353AC7484B49834CB54E4">partisan gerrymandering increased</a>, especially in the redistricting round after the 2010 census. </p>
<p>In 2017, and again in 2018, the Supreme Court <a href="https://www.politico.com/story/2018/06/18/supreme-partisan-gerrymandering-cases-650879">passed up opportunities</a> to decide upon the constitutional legality of gerrymandering by effectively punting on the cases.</p>
<p>In other cases, the court actively intervened. </p>
<p>Republican-controlled Shelby County, Alabama filed a case against the constitutionality of the 1965 Voting Rights Act. The act had protected minority voters’ rights in the South from being diluted by gerrymandering and other methods. In the 2013 case <a href="https://www.oyez.org/cases/2012/12-96">Shelby v. Holder</a>, the court overturned key elements of the act, in a 5-4 ruling. The ruling encouraged partisan gerrymandering in the states – Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia – previously under federal scrutiny for their legacy of discriminatory voting practices. </p>
<h2>Mounting legal challenges</h2>
<p>There have been other legal challenges to partisan gerrymandering.</p>
<p><a href="https://ballotpedia.org/Redistricting_in_Virginia_after_the_2010_census">In Virginia</a> a Republican map drawn up in 2011 that packed many African American voters into just 11 of the state’s 100 House of Delegates districts was challenged. A federal judge saw racial gerrymandering at work and ordered a new map. A Republican challenge to that ruling came before the Supreme Court. The Republican challenge was dismissed on <a href="https://www.supremecourt.gov/opinions/18pdf/18-281_6j37.pdf">June 17, 2019</a>. </p>
<p>The court’s decision in the Virginia case was not about whether the gerrymandering was unconstitutional. Instead, a 5-4 majority of the court ruled that the Virginia Republicans had no legal standing to mount the appeal when the state senate and the state attorney general had decided against appealing. The new map stood.</p>
<p>In Ohio, <a href="https://www.nytimes.com/2019/05/03/us/politics/ohio-gerrymander-ruling.html">a three-judge federal panel ruled</a> that the Republicans attempted to cement a Republican majority of congressional seats when they drew up new districts. The state legislature was ordered by the court to draw a new map for the 2020 election.</p>
<p>And in Michigan <a href="https://www.theatlantic.com/ideas/archive/2019/04/michigan-gerrymandering-case/588082/">a panel of federal judges ruled</a> that many of the state’s legislature districts were unconstitutional, drawn up to ensure a partisan advantage. No more snake on the lake.</p>
<p>The Supreme Court <a href="https://www.politico.com/story/2019/05/24/supreme-court-blocks-gerrymandering-michigan-ohio-1344369">set aside</a> these last two lower court rulings on May 24, 2019 in preparation for this recent decision. The two cases are now sent back to lower courts for dismissal. The snake on the lake lives on for another election cycle. </p>
<h2>Maryland and North Carolina</h2>
<p>Gerrymandering is especially rampant in Maryland and North Carolina. In both states <a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-hear-gerrymandering-cases-against-democrats-republicans-n986716">powerful politicians admitted</a> that their plan was to solidify their party’s control.</p>
<p>Republicans in North Carolina <a href="https://www.bloomberg.com/graphics/2019-north-carolina-gerrymander-map-supreme-court/">drew a map</a> in 2016 to ensure control of 10 of the state’s 13 congressional districts. Democratic voters were overwhelmingly packed into three districts with the remainder cracked across the remaining 10. </p>
<p>Democrats in Maryland <a href="https://www.washingtonpost.com/local/public-safety/federal-judges-throw-out-marylands-congressional-voting-map/2018/11/07/91a06834-e2be-11e8-b759-3d88a5ce9e19_story.html">drew a map</a> with gyrating boundaries in order to cement their 7-1 advantage in congressional seats. </p>
<p>When lower federal courts struck down these gerrymandered congressional district maps, politicians in both states appealed to the <a href="https://www.baltimoresun.com/news/maryland/politics/bs-md-supreme-court-gerrymandering-20190104-story.html">Supreme Court</a>. </p>
<p>Arguments were heard on these cases in March 2019. </p>
<p>From the questioning, it appeared that the liberal justices – Breyer, Ginsburg, Kagan and Sotomayor – would <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-422_5hd5.pdf">rule against gerrymandering</a> and the more conservative justices – Roberts, Alito, Thomas and Gorsuch and Kavanaugh – were <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-726_9olb.pdf">against the court getting involved</a>. </p>
<p>The votes predictably split along the ideological divide. </p>
<p>In the <a href="https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf">majority opinion</a>, combining the Maryland and North Carolina cases into one decision, the court’s conservative majority noted that existing measures of gerrymandering do not provide precise and judicially discernible standards. The opinion was authored by Chief Justice Roberts, who has long held the opinion that it is impossible <a href="https://www.insidehighered.com/news/2017/10/12/chief-justice-john-roberts-calls-data-gerrymandering-sociological-gobbledygook">to measure</a>, let alone overcome, partisan gerrymandering.</p>
<p>Responding for the liberal minority, Justice Kagan read her dissent in open court – a sign of her intense disagreement with what she saw as the court’s unwillingness to uphold fair and free elections. She wrote that the decision “debased and dishonored our democracy.”</p>
<h2>Now what?</h2>
<p>Partisan gerrymandering will continue. But so will resistance against it, I believe. </p>
<p>There is a way for states to avoid gerrymandering. Newly formed, <a href="https://ballotpedia.org/Independent_redistricting_commissions">nonpartisan redistricting commissions</a>, working outside the influence of the legislature to draw legislative district lines, already exist in <a href="https://ballotpedia.org/Redistricting_in_Alaska">Alaska</a>, <a href="https://ballotpedia.org/Redistricting_in_Arizona">Arizona</a>, <a href="https://ballotpedia.org/Redistricting_in_California">California</a>, <a href="https://ballotpedia.org/Redistricting_in_Colorado">Colorado</a>, <a href="https://ballotpedia.org/Redistricting_in_Idaho">Idaho</a>, <a href="https://ballotpedia.org/Redistricting_in_Michigan">Michigan</a>, <a href="https://ballotpedia.org/Redistricting_in_Montana">Montana</a> and <a href="https://ballotpedia.org/Redistricting_in_Washington">Washington</a>. </p>
<p>These commissions resulted from citizen initiatives to reform the process. But most states east of the Mississippi, for instance, <a href="https://ballotpedia.org/States_with_initiative_or_referendum">do not have a ballot initiative</a> process that would allow voters to initiate reform.</p>
<p>Gerrymandering has a pernicious impact on the electoral system and on the wider democratic process. It encourages long-term incumbency and a consequent polarization of political discourse. </p>
<p>But now the Supreme Court has made it clear that the solution does not lie with federal judges. </p>
<p>It is up to the voters. </p>
<p><em>Correction: This article has been updated to correct the number of Congressional seats Republicans won in the 2018 election in Ohio.</em></p>
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<p class="fine-print"><em><span>John Rennie Short does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court has issued what’s likely to be its final word on partisan gerrymandering, saying it’s a political issue, not a legal one. That means reform lies in the hands of voters.John Rennie Short, Professor, School of Public Policy, University of Maryland, Baltimore CountyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1183192019-06-17T11:21:56Z2019-06-17T11:21:56ZNo African American has won statewide office in Mississippi in 129 years – here’s why<figure><img src="https://images.theconversation.com/files/279000/original/file-20190611-32366-1jnq6sg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People waited outside the Supreme Court in 2013 to listen to the Shelby County, Ala. v. Holder voting rights case.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/States-Voting-Rights/9cc3794c332d4b88862c51387c19e31a/17/0">AP Photo/Evan Vucci</a></span></figcaption></figure><p>Mississippi is home to the highest percentage of African Americans of any state in the country.</p>
<p>And yet, Mississippi hasn’t elected an African American candidate to statewide office since 1890.</p>
<p>That’s 129 years.</p>
<p>John Stuart Mill wrote about “the tyranny of the majority” – the idea that an electoral majority will use the political structure to impose its will on the minority population – in his essay <a href="https://academyofideas.com/2013/08/john-stuart-mill-on-liberty/">“On Liberty” in 1859</a>. </p>
<p>Mill could have used the way Mississippi chooses statewide offices as the symbol of this tyranny. Mississippi requires winners to receive more than 50% of the votes. When no one receives a majority, the Mississippi legislature, not the voters, chooses the winner.</p>
<p>In late May 2019, <a href="https://www.apnews.com/3ad297610e314e4a863ebb521b98efd0">four African American Mississippians</a> sued in federal court to end this practice, which they say was designed to keep black candidates from winning. </p>
<p>“The scheme has its basis in racism – an 1890 post-Reconstruction attempt to keep African Americans out of statewide office,” <a href="https://abcnews.go.com/Politics/wireStory/lawsuit-calls-mississippis-choosing-governors-racist-63377648">said former U.S. Attorney General Eric Holder</a>, the chairman of the National Democratic Redistricting Committee, a group backing the lawsuit. </p>
<p>As a professor of political science who has written about African Americans <a href="https://www.questia.com/library/journal/1G1-384542804/the-role-of-a-voting-record-for-african-american-candidates">seeking</a> <a href="http://gpsa-online.org/wp-content/uploads/2016/10/QiP_Volume-II_20141.pdf">elected office</a>, I’m especially interested in barriers to minority candidates running for office.</p>
<p>Let’s look at what happens when candidates have to win a majority of votes, or compete in large geographical areas – not just in Mississippi, but around the country.</p>
<h2>Case study: Georgia</h2>
<p>One interesting example is Georgia.</p>
<p>My co-author, Seth Golden, recently presented his research on county elections in Georgia at <a href="https://www.tuskegee.edu/Content/Uploads/Tuskegee/files/News/4th-Annual-POLSCI-Symposium.pdf">an undergraduate political science research symposium</a>. His work shows that at-large districts – where <a href="https://www.nonprofitvote.org/bias-large-elections-works/">all or most candidates must run city or countywide</a> – were statistically unlikely to provide African American representation.</p>
<p>In 2013, Ariel Hart, Jeff Ernsthausen and David Wickert, reporters for the Atlanta Journal-Constitution looked at how at-large districts affected minority representation in Georgia. They <a href="https://www.ajc.com/news/state--regional-govt--politics/disputed-voting-system-racial-power-gap-persist/xwhYqMwM2eGa1kCqMjo2IJ/">found that</a> “more than 100 counties elect at least one commissioner at large, meaning by countywide vote. Sixty percent of voters in those at-large contests are white; 92 percent of commissioners who hold the seats are white.” </p>
<p>Our research updates their study, looking at minority voting and representation in several Georgia counties in 2019. Of the six from the AJC that were included in our updated analysis, only one – Rockdale County – has any African American representation on the county commission. Rockdale County has 52% African American population – a majority.</p>
<p><iframe id="OeMzz" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/OeMzz/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Our work and that of others shows that these at-large districts make it harder for minority groups to gain power because it takes more money and organization to win them.</p>
<p>The problem isn’t limited to just Mississippi, Georgia or even to the state level. Many cities and counties – including <a href="https://www.nbcnews.com/news/asian-america/california-s-latinos-asian-americans-target-city-councils-district-elections-n879376">some in California</a> – require candidates to carry a majority of the district in order to win.</p>
<h2>Bolden’s case</h2>
<p>Even when minorities make up nearly 40% of the electorate, an at-large district can easily produce an all-white council.</p>
<p>In fact, the at-large district had been the subject of a landmark Supreme Court case. In 1976, Wiley Bolden, an African American, <a href="https://www.oyez.org/cases/1978/77-1844">sued Mobile, Alabama, and its at-large district system</a> which was enacted in 1911. Bolden argued that while 36.2% of the city was black, nobody on the city commission was black, which he said was a violation of <a href="https://www.justice.gov/crt/history-federal-voting-rights-laws">the Voting Rights Act of 1965</a>.</p>
<p>Though the Federal District Court and the Court of Appeals agreed with Bolden, the Supreme Court overturned their decision in <a href="https://supreme.justia.com/cases/federal/us/446/55/">City of Mobile v. Bolden</a>. By a 6-3 margin, <a href="https://www.oyez.org/cases/1978/77-1844">the justices ruled</a> that the 15th Amendment did not give black candidates the right to be elected, and “only purposefully discriminatory denials of the freedom to vote on the basis of race demanded constitutional remedies.”</p>
<p>In other words, the court found that at-large districts were not necessarily unconstitutional.</p>
<p>The outrage was bipartisan. The NAACP <a href="https://www.nytimes.com/1982/05/01/us/compromise-likely-on-voting-rights.html">lobbied Congress heavily</a>. Republican Sen. Bob Dole led the charge to amend the Voting Rights Act to ban discriminatory laws even if the accuser could not prove the intent of a law was to discriminate against a minority group.</p>
<p>In the 1980s, the city of Mobile changed their election laws to more closely resemble a single member district system. Single member districts are those that elect just one representative from a particular part of a city or state. Sure enough, <a href="http://www.protectcivilrights.org/pdf/voting/AlabamaVRA.pdf">leaders in Mobile became more diverse</a> after the change.</p>
<h2>After Mobile</h2>
<p>Yet subsequent Supreme Court cases like the <a href="https://www.oyez.org/cases/2012/12-96">2013 Shelby County v. Holder ruling</a> weakened the Voting Rights Act. </p>
<p>In that case, the judges ruled that Section 4 of the Voting Rights Act, which required the federal government to sign off on electoral changes in an effort to reduce racial discrimination in several states where past problems occurred was unconstitutional. In other words, localities could maintain an at-large district or switch to one if they choose to do so.</p>
<p>Professors Jessica Trounstine of Princeton University and Melody E. Valdini from Portland State University found that <a href="https://www.jstor.org/stable/25193833?seq=1#page_scan_tab_contents">single-member districts were better at increasing</a> minority representation on city councils, county commissions and other local legislative bodies, especially where minorities are concentrated in those districts.</p>
<p>In Jones County in North Carolina, at-large districts <a href="https://www.facingsouth.org/2017/02/challenging-racism-large-elections">kept the African American minority from winning a single seat for more than 20 years</a> even though they made up 30% of the population. When the rules allowed single-member district elections in 2018, <a href="https://www.witn.com/content/news/Jones-County-makes-history-with-election-of-two-African-American-commissioners-499949301.html">two African Americans were elected to the Jones County Commission</a>.</p>
<p>Our findings support Trounstine and Valdini’s conclusions. For those single-member district counties in Georgia that the AJC researched, we found that the percentage of African American voters is a lot closer to equitable representation in local legislative bodies.</p>
<p><iframe id="Ud13p" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/Ud13p/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>While racial gerrymandering and voter laws are being targeted for disenfranchising voters, it’s clear that at-large districts and states requiring candidates to get a majority of votes have the same effect, and will likely be the next battleground in promoting minority rights.</p>
<p>Back in 1859, Mill famously asked how America could live with a huge inconsistency at its heart: a proclamation of liberty for all co-existing with the institution of slavery? Slavery ended not long after, but the tyranny of the majority still takes many forms.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/118319/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When no one in Mississippi wins a majority of votes in an election, the legislature chooses the winner. This has led to white men winning over and over.John A. Tures, Professor of Political Science, LaGrange CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1143452019-03-29T10:43:32Z2019-03-29T10:43:32ZWant to fix gerrymandering? Then the Supreme Court needs to listen to mathematicians<figure><img src="https://images.theconversation.com/files/266364/original/file-20190328-139364-3lxfco.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Activists at the Supreme Court opposed to partisan gerrymandering hold up representations of congressional districts from North Carolina, left, and Maryland, right.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Redistricting/c09bf9952d4b4906b03efdcacdf935de/6/0">AP Photo/Carolyn Kaster</a></span></figcaption></figure><p>“Are we in Maryland’s third congressional district?” Karen asked on a recent visit to the UMBC campus. Despite zooming into the district’s map on Wikipedia, neither of us could tell. With good reason – “<a href="https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/">the praying mantis</a>,” as the third has been called, has one of the most flagrantly gerrymandered boundaries in the country. (The university sits just outside, as we later found.)</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=531&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=531&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=531&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=668&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=668&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266365/original/file-20190328-139361-1o5k9wi.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=668&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Maryland’s third congressional district.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Maryland%27s_3rd_congressional_district#/media/File:Maryland_US_Congressional_District_3_(since_2013).tif">Wikimedia</a></span>
</figcaption>
</figure>
<p>Welcome to Democrat-controlled Maryland. The state, along with Republican-controlled North Carolina, defended its congressional districting against the charge of unlawful partisan gerrymandering in hearings <a href="https://www.nytimes.com/2019/03/26/us/politics/gerrymandering-supreme-court.html">at the U.S. Supreme Court on March 26</a>. </p>
<p>One might think that a map that confounds two mathematicians must be in clear violation of the law. Indeed, political scientists and mathematicians have worked together to propose several <a href="https://www.ams.org/journals/notices/201801/rnoti-p37.pdf">geometrical criteria</a> for drawing voting districts of logical contiguous shapes, which are now in use in various U.S. states.</p>
<p>But here’s the rub: Gerrymandering in itself is not unconstitutional. For the Supreme Court to rule against a particular map, plaintiffs need to establish that the map infringes on some constitutional right, such as their right to equal protection or free expression. This creates a problem. Geometrical criteria don’t detect partisanship. Other traditional criteria, like ensuring each district has the same population, can also be easily satisfied in an otherwise unfairly designed state map.</p>
<p>How then to define a standard to identify partisan gerrymandering that is egregious enough to be illegal? Mathematical scientists have already come up with promising solutions, but we are concerned that the Supreme Court may not take their advice when it issues its decision in June.</p>
<h2>Searching for answers</h2>
<p>The Supreme Court has grappled with the question of manageable standards at least since 1986 – long enough for Justice Antonin Scalia to <a href="https://scholar.google.com/scholar_case?case=16656282825028631654&hl=en&as_sdt=6&as_vis=1&oi=scholarr">declare in a 2004 ruling</a> that since one hadn’t emerged yet, the issue of partisan gerrymandering was not legally decidable, and therefore, no further appeals should be considered. </p>
<p>It was only Justice Anthony Kennedy’s separate concurrence that kept the door open. He cautioned against abandoning the search for a standard too soon, saying that “technology is both a threat and a promise.” In other words, technological advances would probably exacerbate the gerrymandering problem, but they could also provide a solution.</p>
<p>The problem has worsened, just as Kennedy predicted. Computer programs can now generate a profusion of redistricted maps, all of which satisfy traditional constraints such as contiguity and equal population across districts. Then, the majority party can just pick the map most favorable to it.</p>
<p>This was demonstrated in <a href="https://www.nytimes.com/2017/10/06/opinion/sunday/computers-gerrymandering-wisconsin.html">Wisconsin’s 2018 elections</a>. Computer-boosted gerrymandered maps supersized the Republicans’ 13-seat edge to a 25-seat majority, even though <a href="https://www.jsonline.com/story/news/blogs/wisconsin-voter/2018/12/06/wisconsin-gerrymandering-data-shows-stark-impact-redistricting/2219092002/">Democrats won 53 percent</a> of the total statewide vote. </p>
<p>We expect new congressional districts drawn countrywide after the 2020 census will be subject to even more ferocious computer-driven gerrymandering.</p>
<h2>Math to the rescue</h2>
<p>But the second part of Kennedy’s prediction has also come true. The same tools that produce drastically gerrymandered maps can be used to draw fair maps. </p>
<p>The first step is to generate – without partisan intent – a vast number of maps that adhere to traditional redistricting criteria. This creates a database against which any proposed map can be compared, by using a suitable mathematical formula that measures partisanship. Through this process, maps with extreme bias will appear as clear outliers, much like data points near the outer ends of a bell curve. </p>
<p>The <a href="https://www.policymap.com/2017/08/a-deeper-look-at-gerrymandering/">“efficiency gap”</a> is one such mathematical formula. It measures how efficiently one party’s votes get used and how much the other party’s votes get wasted. For example, a map might pack voters together to minimize their influence in other districts, or spread them out so they don’t form an effective bloc. </p>
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<p>Alternative formulas exist as well. In fact, we recommend using a collection of formulas, rather than just one, to compensate for the limitations of each. </p>
<p><a href="https://www.samsi.info/programs-and-activities/research-workshops/quantitative-redistricting/">Recent conferences</a> on redistricting have seen the mathematics and statistics communities coalesce around this “outlier approach.” </p>
<h2>Overcoming skepticism</h2>
<p>Getting the Supreme Court to accept this approach, however, will require overcoming the skepticism some conservative justices have expressed toward the use of mathematics and statistics in setting legal standards. </p>
<p>During <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_mjn0.pdf">October 2017 oral arguments</a> for a challenge to the Wisconsin maps, for instance, Chief Justice John Roberts characterized the efficiency gap as “sociological gobbledygook,” while Justice Neil Gorsuch said that the idea of using multiple formulas for measuring gerrymandering was like adding “a pinch of this, a pinch of that” to his steak rub. Roberts also fretted that the country would dismiss statistical formulas as “a bunch of baloney” and suspect the court of political favoritism in adopting them.</p>
<p>At the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/18-422_5hd5.pdf">March 26 hearings</a> for the North Carolina challenge, conservative justices were more measured and mathematically savvy in expressing their reservations. This time, the “outlier approach” took center stage. Affirmed in the <a href="https://www.brennancenter.org/sites/default/files/legal-work/CC_LWV_v_Rucho_MemorandumOpinion_01.09.18.pdf">lower court decision</a> and explained in an <a href="https://www.brennancenter.org/sites/default/files/legal-work/2019-02-12-Grofman%20Amicus%20Brief.pdf">amicus brief</a>, it was also endorsed in oral arguments by Justices Elena Kagan and Sonia Sotomayor. The key doubts came from Justices Samuel Alito, Gorsuch and Brett Kavanaugh, who questioned the feasibility of defining an “outlier” in practice – in particular, setting a range of numerical parameters that would demarcate permissible maps from nonpermissible ones. </p>
<p>The answer to such objections, adeptly addressed in an <a href="https://www.supremecourt.gov/DocketPDF/18/18-422/91120/20190307163214118_18-422%20Brief%20for%20Amicus%20Curiae%20Eric%20S.%20Lander.pdf?">amicus brief by MIT’s Eric Lander</a>, is twofold. First, the maps being challenged are so biased that they are extreme outliers. They would show up as anomalies under any test for partisanship. So there is no need for the Supreme Court to set a numerical cutoff level at this stage – though a threshold may, indeed, evolve in the future. Secondly, such an extreme outlier approach is already an indispensable tool in several areas of national importance. For example, it is used to <a href="https://mcnp.lanl.gov/pdf_files/la-ur-09-3136.pdf">test nuclear safety</a>, <a href="https://www.wsj.com/articles/as-forecasts-go-you-can-bet-on-monte-carlo-1470994203">predict hurricanes</a> and <a href="https://www.occ.treas.gov/news-issuances/news-releases/2019/nr-occ-2019-13.html">assess the health of financial institutions</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266366/original/file-20190328-139349-16b3qh5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Partisan gerrymandering has also been a hot topic in Pennsylvania.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Election-2018-Redistricting/0aa1769955524602abaa931cb00a61f4/23/0">AP Photo/Keith Srakocic</a></span>
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<p>Moreover, this approach has already been shown to work smoothly in gerrymandering cases as well, such as in <a href="https://www.axios.com/pennsylvania-gerrymandering-tom-wolf-congressional-map-e4a1a2d0-65eb-4282-b048-811c2a3865b9.html">one from Pennsylvania</a>. Moon Duchin, a Tufts University math professor, used it to analyze – in a report requested by Governor Tom Wolf – newly proposed maps for fairness. A map drawn by the GOP state legislature clearly stood out as an extreme outlier among over a billion maps generated, both when evaluated using the efficiency gap and under another measure of partisanship called the mean-median score. Based on <a href="https://www.governor.pa.gov/wp-content/uploads/2018/02/md-report.pdf">Duchin’s report</a>, the governor rejected the map proposed by the GOP. </p>
<p>We expect that, pushed by citizen groups, an increasing number of states will incorporate math into redistricting procedures. Last year, for instance, Missouri approved <a href="https://www.kmov.com/news/missouri-amendment-explained/article_b4cace6a-d3de-11e8-9470-4b2875ebf73c.html">Amendment 1</a>, prescribing <a href="https://www.sos.mo.gov/CMSImages/Elections/Petitions/2018-048.pdf">detailed mathematical rules</a> that must be followed to ensure the fairness of redrawn districts. Although the rules rely heavily on just the efficiency gap – and lawmakers may try to <a href="https://www.columbiamissourian.com/news/state_news/voters-approved-clean-missouri-but-lawmakers-want-them-to-reconsider/article_4a4739e4-404d-11e9-b735-bfff863b5ed4.html">altogether annul them</a> – the fact that ordinary citizens <a href="https://www.columbiamissourian.com/news/elections/amendment-voters-strongly-support-clean-missouri-redistricting-plan-ethics-reform/article_6d2a9728-e155-11e8-b58e-43f1d7945f4e.html">voted overwhelmingly</a> (62 percent to 38 percent) in favor of such a math-incorporating measure is truly precedent-setting.</p>
<p>Such developments were noted in the March 26 oral arguments, when some justices wondered whether, in light of state initiatives, the Supreme Court really had to step in. As the citizens’ attorneys pointed out, however, there are very few states east of the Mississippi where such citizen initiatives are allowed. (North Carolina is not one of them.) It behooves the court to take the lead nationally. </p>
<p>Enhanced by computer power, partisan gerrymandering poses a burgeoning threat to the American way of democracy. Workable standards based on sound mathematical principles may be the only tools to counter this threat. We urge the Supreme Court to be receptive to such standards, thereby enabling citizens to protect their right to fair representation.</p><img src="https://counter.theconversation.com/content/114345/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In the past I have volunteered for League of Women Voters, and serve as a redistricting resource for Common Cause MN. I also served on the Minnesota Citizens Redistricting Commission in 2010-11. I served as a AAAS Congressional Fellow in 2013-14 with Senator Al Franken (worked on higher education policy).
I currently work for the American Mathematical Society, a non-profit, which has put out a statement on redistricting. We are not registered lobbyists.
</span></em></p><p class="fine-print"><em><span>Manil Suri does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Supreme Court justices have previously called statistical methods of measuring partisan gerrymandering ‘sociological gobbledygook’ and ‘a bunch of baloney.’Manil Suri, Professor of Mathematics and Statistics, University of Maryland, Baltimore CountyKaren Saxe, Professor of Mathematics, Emerita, Macalester CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1093952019-02-20T11:37:09Z2019-02-20T11:37:09ZOne-party rule in 49 state legislatures reflects flaws in democratic process<figure><img src="https://images.theconversation.com/files/259863/original/file-20190220-136758-1kzrq8c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Idaho State Capitol in Boise, Idaho. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Redistricting-Commission/d65474ccbbe742bd8339fa7c3ca0289c/2/0">AP Photo/Kimberlee Kruesi, File</a></span></figcaption></figure><p>Across the U.S., Republicans control 30 statehouses and the Democrats control 18. That is the largest number of one-party controlled <a href="http://www.governing.com/topics/politics/gov-state-politics-governors-2019.html">state legislatures since 1914</a>.</p>
<p>Minnesota is currently <a href="http://www.ncsl.org/Portals/1/Documents/Elections/Legis_Control_2019_February%201st.pdf">the only state</a> where there’s not one party in control of the state legislature – Republicans have a majority in the state Senate chamber, while Democrats hold the state House chamber.</p>
<p>The Democrats’ so-called “blue wave” in the 2018 midterm elections was not big enough to put a major dent into the Republican’s control of state legislatures.</p>
<p>As <a href="https://scholar.google.com/citations?user=KWv69ZkAAAAJ&hl=en&oi=ao">a scholar of state politics</a>, I believe partisan gerrymandering is a major reason why the Democratic wave fizzled as it reached the states. It is also why Democrats will likely have a difficult time regaining control in states as the redistricting process begins in 2020.</p>
<h2>The power of partisan gerrymandering</h2>
<p><a href="https://www.brennancenter.org/partisan-gerrymandering">Partisan gerrymandering</a> is the practice of drawing legislative districts that overwhelmingly favor one political party over another.</p>
<p>It creates safe seats for candidates of a particular party. Districts are created that contain mostly voters that support the majority party in the legislature, because in the redistricting process, the majority party gets to determine district boundaries. Recently, the Republican Party has simply been better at it.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259864/original/file-20190220-136742-hsbdfz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Old congressional districts of Pennsylvania on top, and the new redrawn districts on the bottom.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Election-2018-Gerrymandering/07483c8f239743dabd9113b8bf45243f/12/0">AP Photo/Keith Srakocic</a></span>
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<p>In 2010, the <a href="https://www.washingtonpost.com/outlook/five-myths/five-myths-about-gerrymandering/2018/03/08/f9d1a230-2241-11e8-badd-7c9f29a55815_story.html?utm_term=.b18f2ba284f3">Republican Party used redistricting</a> to draw state legislative district lines that helped the party hold back the 2018 blue wave. </p>
<p>For example, in Pennsylvania, Michigan and North Carolina, a majority of people across each state voted for Democratic state House candidates. However, the Republican party still won a large majority of the <a href="https://www.washingtonpost.com/business/2018/11/13/least-three-states-republicans-lost-popular-vote-won-house/?utm_term=.e38ff53e635f">legislative seats</a>. </p>
<p>Why? </p>
<p>Because Democratic voters were spread out across many districts with very few districts having a majority of Democratic voters. Democratic candidates would need to win the votes of many Republicans to win the seat.</p>
<h2>Policy impacts of partisan gerrymandering</h2>
<p>This historic number of state legislatures controlled by one party will have important consequences for redistricting in 2020. </p>
<p>In 2020, the United States government will count its citizens as it does every 10 years through <a href="https://www.census.gov/history/www/programs/demographic/decennial_census.html">the census</a>. </p>
<p>This also marks the beginning of the <a href="http://redistricting.lls.edu/what.php">2020 redistricting</a> cycle. In 1962, the U.S. Supreme Court ruled in <a href="http://landmarkcases.c-span.org/Case/10/Baker-V-Carr">Baker v. Carr</a> that congressional districts must be drawn to ensure that each citizen receives equal representation in Congress and in state legislatures. So congressional and state legislative district lines will be redrawn to reflect population changes documented by the census. </p>
<p>In most states, the state legislature is responsible for drawing the new congressional and state legislative district lines. This means that when one party controls both chambers, they are likely to draw lines that protect and increase their hold on the legislature. There is little the <a href="https://journals.sagepub.com/doi/10.1177/153244000400400103">minority party</a> can do to stop them.</p>
<p>One-party control of state legislatures affects more than just redistricting. It also makes it easier for the party in power to adopt <a href="https://www.liebertpub.com/doi/10.1089/elj.2017.0452">more extreme public policies</a>. </p>
<p>In <a href="https://www.timesunion.com/news/article/Democrats-outline-2019-priorities-13371703.php">Democratic controlled states</a> like New York, these may include passage of laws that protect the rights of laborers, women, immigrants and LGBTQ people and increase restrictions on gun ownership. In Republican controlled states like Texas, laws might aim at protecting the rights of <a href="https://www.texasgop.org/priorities/">gun owners and the life of the unborn</a>. Some of these policies may not match the preferences of the greater public in a state.</p>
<p>When partisan gerrymandering limits electoral competition, legislators worry less about re-election. Less worry about re-election can mean less need to appeal to the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3031604">full range of constituents</a> in their districts when passing laws. </p>
<p>For example, the influential conservative nonprofit the American Legislative Exchange Council, or ALEC, has successfully helped legislators introduce and pass legislation in many states that support a national conservative agenda. ALEC does this by <a href="https://www.brookings.edu/articles/alecs-influence-over-lawmaking-in-state-legislatures/">writing the legislation and providing it to legislators</a>. </p>
<p>Meanwhile, the <a href="https://stateinnovation.org">State Innovation Exchange</a>, a progressive nonprofit, provides research, training and policy expertise to state legislators interested in supporting a national progressive agenda. Their goal is to help state legislators introduce and pass progressive public policies.</p>
<h2>Is change in the air?</h2>
<p>As partisan gerrymandering has become <a href="https://theconversation.com/4-reasons-gerrymandering-is-getting-worse-105182">more prevalent and extreme</a>, citizens have become increasingly disenchanted and <a href="https://today.yougov.com/topics/politics/articles-reports/2017/10/04/few-support-partisan-gerrymandering">less supportive of the process</a>. </p>
<p>In 2017, the <a href="https://www.lwv.org">League of Women Voters</a> – a nonpartisan organization that encourages informed and active participation in government – sued the Commonwealth of Pennsylvania arguing that the state’s congressional map violated the state’s constitution. The Pennsylvania Supreme Court <a href="http://www.pacourts.us/news-and-statistics/cases-of-public-interest/league-of-women-voters-et-al-v-the-commonwealth-of-pennsylvania-et-al-159-mm-2017">ruled</a> that the districts favored Republicans in a way that undercut Pennsylvania’s voters’ ability to exercise their state constitutional right to vote in free and equal elections. In the ruling, <a href="http://www.pacourts.us/assets/files/setting-6061/file-6852.pdf?cb=df65be">the court stated</a> that the congressional map “was designed to dilute the votes of those who in prior elections voted for the party not in power in order to give the party in power a lasting electoral advantage.”</p>
<p>As a result, the Pennsylvania Supreme Court invalidated the districts and drew a more competitive map itself. The new map led to the election of a congressional delegation that better reflects the party affiliation of Pennsylvania voters. </p>
<p>Currently, partisan gerrymandering litigation is pending in <a href="https://www.brennancenter.org/print/17671">12 states</a>. A <a href="https://www.brennancenter.org/sites/default/files/publications/Extreme%20Maps%205.16_0.pdf">2017 Brennan Center report</a> analyzed the congressional district maps. They found consistent and high partisan bias in a number of states.</p>
<p>In 2018, voters in Michigan, Missouri, Colorado and Utah voted to make the <a href="https://www.wired.com/story/midterm-elections-2018-voters-draw-gerrymandering-line/">redistricting process nonpartisan</a>. They join Arizona, California, Idaho, Washington, Montana and Alaska in using independent redistricting commissions that are outside the influence of the legislature to draw legislative district lines. Most of these commissions have only existed since the late 1990s and early 2000s. The one exception is Washington, which adopted its <a href="http://www.ncsl.org/research/redistricting/creation-of-redistricting-commissions.aspx">independent redistricting commission</a> in 1983.</p>
<p>A number of states, like Ohio, have also <a href="http://www.ncsl.org/research/redistricting/2009-redistricting-commissions-table.aspx">adopted reforms</a> that give the minority party a larger voice in the process, but will still do little to stop the adoption of a partisan map. The hope is that the amount of bias will decrease.</p>
<p>Studies have shown that nonpartisan or bipartisan redistricting commissions lead to <a href="https://journals.sagepub.com/doi/abs/10.1177/153244000900900202">more competitive districts</a> and potentially better representation for citizens. Pennsylvania, Michigan, Missouri, Colorado and Utah could be the start of a trend. The widespread adoption of nonpartisan or bipartisan commissions could lead to representation that is more responsive to citizen interests. Responsive governments are good for citizens.</p><img src="https://counter.theconversation.com/content/109395/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nancy Martorano Miller does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The majority of US state legislatures are controlled by Republicans because legislative districts are drawn to favor them. Voters are catching on, but change will be slow.Nancy Martorano Miller, Associate Professor of Political Science, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1084082019-01-09T11:46:06Z2019-01-09T11:46:06ZStopping partisan gerrymandering is more complicated than you think<p>Several states have waged fierce battles recently over partisan gerrymandering, when states are redistricted in favor of a particular political party. <a href="https://www.apnews.com/c49a2cf375894f539ca4aad5aafc6a74">Now Missouri</a> wants to lead the nation with a new, combined requirement for partisan fairness and competition for redistricting plans.</p>
<p>But drawing legislative district lines is an exercise in trade-offs. <a href="https://www.jstor.org/stable/1954541">Achieving one goal means sacrificing another</a>, and, as a political scientist who studies the mathematical principles of redistricting, I find Missouri’s new plan to be uninformed by scholarly research. </p>
<p>Missouri’s goals are in tension with each other. Minimizing partisan bias, while important, is best achieved by sacrificing competitiveness, which does not serve a clear purpose. </p>
<p>Creating competitive districts doesn’t necessarily create competitive elections. Once an incumbent wins, that party has the seat locked in, and whatever party ratio gets created by random variation gets locked in. That’s part of why drawing lots of evenly split districts doesn’t work, when played out over time. Drawing evenly split districts creates even more problems when one party has a state-level advantage. </p>
<h2>Measuring the problem</h2>
<p>Redistricting plans give one party an advantage by “packing and cracking.” </p>
<p>The party attempting to gain an advantage “packs” its opposing party’s voters into a small number of districts, where they constitute inefficiently large supermajorities. If a party has 80 percent of the vote in a district, some of those voters could be distributed into other districts, allowing that party to win more seats while still preserving the district in question. </p>
<p>In contrast, the advantaged party gives itself relatively narrow majorities in as many districts as possible. That leaves the disadvantaged party as large minorities in those districts – “cracked” – wasting still more of their votes.</p>
<p>To limit partisan gerrymandering, one must first measure it, and that is harder than it sounds. <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1946&context=public_law_and_legal_theory">One proposed measurement of partisan bias</a> was at the core of Gill v. Whitford, the Supreme Court case on partisan gerrymandering in Wisconsin that remains fundamentally undecided. That measure essentially looks at the number of wasted votes for each party, based on the premise that each party only needs a majority in a district to win a district. If a redistricting plan wastes more votes for Party A than for Party B, it’s considered biased. </p>
<p>But this relies on knowing the answers to a few questions: What proportion of voters want Party A to win, what proportion want Party B to win, and what proportion of candidates of each party eventually win? </p>
<p>While that sounds simple, factors other than partisanship can affect election results. It’s not enough to just look at party registration. That doesn’t respond consistently to change over time. For example, if a voter changes preferences, that voter won’t necessarily change party registration, so when a constituency shifts in its composition towards either the Democratic or Republican Party in terms of attitudes over time, registration numbers won’t pick that up.</p>
<p>What’s more, when it comes to election results, <a href="https://rowman.com/isbn/9781442252622/the-politics-of-congressional-elections-ninth-edition">research has shown</a> that incumbents have a a consistent advantage, mostly due to name recognition. As political scientist Gary C. Jacobson put it, “You can’t beat a somebody with a nobody.” When the challenger is an unknown figure, incumbents will draw individual votes from the challenger’s party, whereas inexperienced challengers have difficulty drawing votes even from within their own parties. So, if there is an incumbent in the race, election results won’t show a clear picture of the electorate’s partisan preferences.</p>
<p>Measuring the underlying preferences of a constituency, then, is difficult. When election results differ from what redistricting committees wanted or expected, is that a bias in the plan, or a deviation induced by factors specific to the candidates? This is why measuring bias in a redistricting plan is a contentious debate.</p>
<h2>Competition versus fairness</h2>
<p>Nevertheless, there is a clear reason to minimize bias. A biased plan will produce a delegation that is unrepresentative. </p>
<p>The problem is that one cannot have both competition and partisan fairness. In fact, <a href="https://books.google.com/books/about/Congressional_Redistricting.html?id=87GHAAAAMAAJ">the more evenly balanced districts a plan creates</a>, the more the balance between elected Democrats and Republicans tends to deviate from the preferences of the state. Missouri fails to understand that.</p>
<p>Say a state is split precisely 50-50 between two parties. What would happen if redistricters made every district a microcosm of the state, with every district perfectly even? On average, each party will have an equal chance before any incumbents enter the picture, but random chance will probably not result in a precise 50-50 split in seat allocation once elections are held. The result will be at least a slight partisan imbalance in seats, with it simply being a coin toss who is favored by that imbalance. Then, once one party has the incumbency advantage working for it, the imbalance becomes locked in. So an attempt to create balance at the state level through 50-50 districts can easily misfire.</p>
<p>Most states, though, aren’t 50-50. Drawing 50-50 districts in such states requires sacrificing proportionality elsewhere, precisely because the state is not 50-50. Suppose you want District 1 to be a 50-50 district, but the Democrats are only 45 percent of the population. In order to bring the Democrats up to 50 percent in District 1, you need to pull in voters from adjacent districts. The process of bringing an adjacent district down to 40 percent Democratic is itself a distortion. That then introduces rippling effects.</p>
<p>In other words, a mandate for competition is a mandate for distortion because creating 50-50 districts requires creating districts that deviate from the composition of the state, with ripple effects. <a href="https://doi.org/10.1017/S1049096507070540">Basic statistical principles</a> show the problem with drawing competitive districts.</p>
<p>There is, however, a way to minimize bias. It is called a bipartisan gerrymander. Draw the Democratic districts such that there are as few Republicans in them as possible, draw the Republican districts such that there are as few Democrats in them as possible. </p>
<p>As long as each party’s voters are “packed” in a similar manner, the end result will be that the state elects Democrats and Republicans in the proportion that reflects the preferences of the populace. </p>
<p>Minimal bias or competition – <a href="https://doi.org/10.1177%2F0951629805056896">pick one</a>.</p><img src="https://counter.theconversation.com/content/108408/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Justin Buchler does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many states are arguing over how to draw district lines. But drawing legislative district lines is an exercise in tradeoffs.Justin Buchler, Associate Professor of Political Science, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/899932018-01-12T11:21:07Z2018-01-12T11:21:07ZThanks to the North Carolina case, partisan gerrymandering’s day of reckoning may soon be upon us<figure><img src="https://images.theconversation.com/files/201699/original/file-20180111-101514-6ew2l7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The word 'gerrymandering' comes from the name of Elbridge Gerry, Massachusetts governor in the 1800s. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Gerrymandering/b7109ab268054ff0a91257cebef3ee35/26/0">AP Photo/Elise Amendola</a></span></figcaption></figure><p>Gerrymandering was already shaping up to be an important issue this year, with huge implications for American democracy. But after the ruling this week on the North Carolina congressional map, the stakes have been raised still higher.</p>
<p>For the first time, a federal panel of judges ruled that a state’s map of its congressional districts was unconstitutional. The North Carolina map didn’t just give an advantage to Republicans – it manifested “invidious partisan intent.” The panel directed the state to <a href="https://www.npr.org/sections/thetwo-way/2018/01/10/576966545/n-c-gerrymandered-map-ruled-unconstitutional-by-panel-of-judges">draw the districts again</a> by Jan. 24.</p>
<p>Politicians are always looking for partisan advantages, and the constitutional mandate to redraw district boundaries every 10 years provides an irresistible opportunity. When that mandate falls to a state legislature that is controlled by one party, well, you can imagine what those boundaries look like. </p>
<p>But sometimes parties go too far. They create maps that entrench that party in power, making it virtually impossible for the opposition to compete. When that happens, voters are effectively disenfranchised, and it becomes a constitutional question.</p>
<p>As the managing director of <a href="http://democracyinstitute.la.psu.edu/">an institute dedicated to defending democracy</a>, the North Carolina ruling leaves me hopeful that after this term of the Supreme Court, American elections might better reflect the will of the people. </p>
<h2>Partisan vs. racial gerrymandering</h2>
<p>The Supreme Court has acknowledged that partisan gerrymandering can be so egregious as to be “unlawful.” But they have punted on the question of how far is too far. </p>
<p>The court has repeatedly decided <a href="https://www.vox.com/cards/gerrymandering-explained/what-is-racial-gerrymandering">questions regarding racial gerrymandering</a> – for example, when states “pack” minorities into a district to mitigate their political power. As a matter of fact, this is the second time the North Carolina map has been rejected. <a href="https://www.vox.com/policy-and-politics/2017/5/22/15676250/supreme-court-racial-gerrymandering-north-carolina">The first time</a> was for racial gerrymandering.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=533&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=533&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=533&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=670&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=670&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=670&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Maryland’s 3rd Congressional District is often cited as an example of gerrymandering.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Maryland%27s_3rd_congressional_district#/media/File:Maryland_US_Congressional_District_3_(since_2013).tif">Wikipedia</a></span>
</figcaption>
</figure>
<p>But the court says it doesn’t have a <a href="https://www.law.cornell.edu/supct/pdf/02-1580P.ZC">“workable standard”</a> to decide when partisan gerrymandering becomes unconstitutional. And without that, they fear that every decennial they will get 50 claims from every state’s aggrieved minority party.</p>
<p>This distinction between partisan and racial gerrymandering has always been slippery at best. Minorities vote <a href="http://www.people-press.org/2015/04/07/a-deep-dive-into-party-affiliation/">overwhelmingly Democratic</a>. But the distinction – and the mandate for minority representation in the Voting Rights Act of 1965 – gave partisans <a href="https://www.washingtonpost.com/news/wonk/wp/2016/06/09/how-a-widespread-practice-to-politically-empower-african-americans-might-actually-harm-them/?utm_term=.ddf23c90abd7">a useful justification for their actions</a>. It also gave the courts a way to dodge this very thorny question. But it looks like this convenient distinction is crumbling before our eyes. </p>
<h2>To the Supreme Court</h2>
<p>Two cases before the Supreme Court this term directly confront partisan gerrymandering. As a result, continued punting looks very unlikely.</p>
<p><a href="https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case">A Wisconsin case</a> was appealed from a Federal District Court that ruled, for the first time, that the Republican-drawn state legislative map was over the line. <a href="https://www.leagle.com/decision/infdco20161122f51">The court’s opinion</a>, written by a Reagan appointee, concluded that the map “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.” This conclusion is precisely what the Supreme Court will have to address.</p>
<p>Then just last month, the Supreme Court agreed to hear <a href="https://www.washingtonpost.com/politics/courts_law/2017/12/08/4fde65f4-dc66-11e7-b1a8-62589434a581_story.html?utm_term=.8fa7ac647236">another case</a>, this time from Maryland, where the Democrats are the party in charge. The decision to hear the case was itself a surprise, since the justices had already denied the plaintiffs’ request to expedite the appeal. </p>
<p>By hearing these cases at all, the justices are once again addressing the idea that state legislatures can act unlawfully, but with the Wisconsin case, they are also acknowledging at least the possibility that they may now have the “workable standard” they are looking for. </p>
<p>In Wisconsin, the decision by a three-judge panel rested on data showing that the Republican map led to a lot of wasted votes. These wasted votes were effectively irrelevant, because they were either well beyond the amount needed for victory, or not nearly close enough to overcome defeat.</p>
<p>Eric McGhee, from the Public Policy Institute of California, and Nicholas Stephanopoulos, from the University of Chicago Law School, <a href="https://www.brennancenter.org/sites/default/files/legal-work/How_the_Efficiency_Gap_Standard_Works.pdf">argue that these wasted votes</a> amount to an efficiency gap: the difference between the effective power of a Republican vote versus one from a Democrat. The larger the efficiency gap – that is, the greater percentage of wasted votes for one party versus the other – the more unfair and unconstitutional the map. </p>
<p>In oral arguments, Chief Justice John Roberts dismissed this measure as “<a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/10/04/justice-roberts-said-political-science-is-sociological-gobbledygook-heres-why-he-said-it-and-why-hes-mistaken/">sociological gobbledygook</a>.” But if the court majority were looking for a way to show when partisan gerrymandering crosses the line and becomes unconstitutional, it might have found it.</p>
<h2>What happens next?</h2>
<p>With all this in play, it would have been difficult for the court to once again affirm the status quo. But now add the fact that a federal district court has once again broken the barrier. </p>
<p>But now comes the North Carolina opinion, which once again affirms that there is a line when partisan gerrymandering becomes unconstitutional, and that the courts have the right and duty to say when it is crossed. The state has said it plans to <a href="https://www.washingtonpost.com/national/north-carolina-gop-pledges-to-defend-gerrymandered-congressional-map/2018/01/10/5fe99686-f64b-11e7-a9e3-ab18ce41436a_story.html">appeal to the Supreme Court</a>. If the Supreme Court agrees, that would make three such cases.</p>
<p>If the Supreme Court does indeed rule for the plaintiffs in one or both cases, it would, in my view, have a significant and positive impact on American democracy. Establishing a legal standard for unconstitutional partisan gerrymandering would improve the contestability of elections. Americans would be more likely to believe their vote matters, and politicians would feel constrained to more accurately reflect their constituents’ values and interests.</p><img src="https://counter.theconversation.com/content/89993/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Beem does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Judges in North Carolina just threw out the state’s congressional district map. The decision could have major implications for the future of partisan gerrymandering across the US.Christopher Beem, Managing Director of the McCourtney Institute of Democracy, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/865102017-12-01T00:41:01Z2017-12-01T00:41:01ZStop criticizing bizarrely shaped voting districts. They might not be gerrymandered after all<figure><img src="https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Illinois's Fourth Congressional District is often called out for its 'earmuff' shape, but there's an ideal behind its strange appearance.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/147019916@N07/31965765784/">SBTL1/flickr</a></span></figcaption></figure><p>How can you tell if a voting district has been gerrymandered?</p>
<p>Every 10 years, the U.S. Census informs lawmakers on how to redistribute 435 U.S. congressional seats among the 50 states. Each state must then be partitioned into the appropriate number of voting districts. Since incumbent lawmakers serve as the mapmakers, it’s not uncommon to manipulate district boundaries for political gain. </p>
<p>This behavior, known as “partisan gerrymandering,” is the subject of a <a href="https://theconversation.com/is-partisan-gerrymandering-illegal-the-supreme-court-will-decide-84241">U.S. Supreme Court decision</a> expected this year. District shape is perhaps the most common tell-tale sign of gerrymandering, and remains a recurring point of contention.</p>
<p>However, <a href="https://arxiv.org/abs/1710.04193">my recent mathematical proof</a> shows that, paradoxically, voting districts will sometimes need to exhibit bizarre shape in order to avoid the appearance of partisan gerrymandering. </p>
<h2>The strangest shapes</h2>
<p>The term “gerrymander” was coined over 200 years ago, when the Boston Gazette compared the bizarre shape of a Massachusetts voting district to the profile of a salamander. </p>
<p>There are several existing methods to measure what mathematicians call “geographic compactness” (think “non-bizarre-shaped-ness”). The most popular is the <a href="https://books.google.com/books?id=xdZzBAAAQBAJ&pg=PA3&lpg=PA3#v=onepage&q&f=false">Polsby-Popper score</a>. </p>
<p>A weirdly shaped district will waste a lot of its perimeter selectively including certain portions of a map while avoiding others. How can we measure this waste?</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=533&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=533&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=533&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=670&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=670&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196551/original/file-20171127-2021-1vncrxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=670&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Maryland’s Third Congressional District gets a low Polsby-Popper score.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Maryland%27s_3rd_congressional_district#/media/File:Maryland_US_Congressional_District_3_(since_2013).tif">Wikipedia</a></span>
</figcaption>
</figure>
<p>For a fixed perimeter, the shape containing the largest area is the circle. In geometry, this is known as the <a href="https://www.youtube.com/watch?v=U95mGDb62ZY">isoperimetric theorem</a>. This motivates the definition of the Polsby-Popper score: the area of a voting district divided by the area of the circle with the same perimeter. </p>
<p>This is meant to measure the inefficiency in the district’s boundary. A circular district would achieve the maximum score of one. Contorted districts would receive a score near zero because they are so far from a circular shape.</p>
<p>Some of <a href="https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.4395be1fe900">the most egregious offenders</a> of the Polsby-Popper score are located in North Carolina and Maryland. In this spirit, <a href="https://www.theguardian.com/us-news/2017/nov/05/gerrymander-5k-run-asheville-north-carolina-republicans">Asheville, North Carolina recently hosted a “Gerrymander 5K” race</a> to put on display the zigzag boundaries of certain atrocious-looking voting districts.</p>
<h2>Efficiency gap</h2>
<p>However, gerrymandering critics can scrutinize more than just shape. The U.S. Supreme Court is <a href="https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-math-of-gerrymandering-works-supreme-court.html">currently deliberating</a> over whether a certain nongeometric feature should be used to detect partisan gerrymandering. </p>
<p>Instead of district shape, the metric of choice in this court case is “efficiency gap.” The efficiency gap captures how disproportionately the votes cast in a given state were “wasted” by the two major parties in an election. </p>
<p>A vote is considered wasted in a district if it either didn’t lead to a majority or wasn’t needed to obtain a majority. The efficiency gap in a state is the difference between the total numbers of wasted votes divided by the total number of votes cast. </p>
<p>If the plaintiffs’ proposal goes through, an unjustified efficiency gap above 8 percent would implicate unconstitutional partisan gerrymandering. While this threshold of 8 percent is somewhat subjective, it was selected after studying efficiency gaps across the country in pursuit of a court-worthy standard.</p>
<h2>When weird shapes work</h2>
<p>My colleagues and I imagined a case in which both of the following occur simultaneously. First, one party (say, blue) has a slight majority over the entire state. Second, the voters from both parties (blue and red) are very well-distributed. </p>
<p>In this case, a mapmaker would have to exercise a lot of care in order to ensure that red doesn’t waste all of its votes. Since the voters are well-distributed, naively drawn districts will give blue a slight majority, thereby producing a huge efficiency gap in favor of blue. In fact, any simple recognizable shape like a circle or rectangle won’t be competitive politically.</p>
<p>We found that this occurs whenever a district has a Polsby-Popper score that isn’t too small. In other words, a geographically compact district (in the Polsby-Popper sense) will necessarily waste every red vote and almost no blue votes in this case. There is a fundamental tension between the Polsby-Popper score and the efficiency gap.</p>
<figure class="align-center zoomable">
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<figcaption>
<span class="caption">(left) Well-distributed voter locations. Each 3-by-3 square contains five blue voters and four red voters. (middle) The shortest splitline algorithm produces districts with large Polsby-Popper score but large efficiency gap. In particular, all of the red votes are wasted. (right) Hand-drawn districts ensure a small efficiency gap (now only 2 percent in favor of blue), but at the price of a district with small Polsby-Popper score (about 0.12).</span>
<span class="attribution"><span class="source">Dustin G. Mixon</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Our theorem remains true if you change the voter distribution in various ways. For example, if we flipped all the red voters in a given region to blue, then we would get a similarly large efficiency gap. </p>
<p>In fact, Massachusetts provides a real-world example of our theorem. Democrats won all nine of the congressional districts in 2016, even though the districts don’t appear to be gerrymandered. In this state, Republicans make up about 30 percent of the electorate, but the voters are so geographically spread out that their votes are wasted in normal-looking voting districts.</p>
<h2>Kicking the habit</h2>
<p>The efficiency gap proposal that the Supreme Court is now considering includes a legal test on the back end. This test serves as a sort of fail-safe against any unforeseen shortcomings of the efficiency gap. It allows mapmakers to break the efficiency gap requirement in exceptional cases, provided they offer sufficient justification. </p>
<p>Of course, if the justification process is particularly burdensome, then mapmakers may decide to avoid the process altogether by hunting for districts that minimize efficiency gap. As our theorem demonstrates, this could in turn encourage bizarrely shaped districts.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/193859/original/file-20171108-14205-190ar5y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Illinois’s Fourth Congressional District.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/147019916@N07/31965765784/">SBTL1/flickr</a></span>
</figcaption>
</figure>
<p>But are strange shapes necessarily bad? Consider Illinois’s Fourth Congressional District, which is frequently <a href="https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.4395be1fe900">lambasted for its peculiar “earmuffs” shape</a>. This odd shape doesn’t necessarily demonstrate bad intentions. In this case, the district was “gerrymandered” so as to connect two majority Hispanic parts of Chicago, thereby <a href="https://blog.ballotready.org/uncategorized/gerrymandering-in-my-backyard-illinois-4th-district/">providing a common voice to this demographic</a>. So it’s not unprecedented to sacrifice shape in favor of a more substantive ideal.</p>
<p>The U.S. Supreme Court may decide that a small efficiency gap is an ideal worth pursuing in our voting districts. If so, we should probably kick our habit of judging a district by its shape.</p><img src="https://counter.theconversation.com/content/86510/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dustin G. Mixon receives funding from the Air Force Office of Scientific Research. </span></em></p>Gerrymandered districts are under fire across the US. But a weird district shape isn’t necessarily a bad one.Dustin G. Mixon, Assistant Professor, Department of Mathematics, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.