by Dr. Alex Keena, an Assistant Professor of Political Science at Virginia Commonwealth University
Recently, a small number of Virginia Democrats have raised concerns about the proposed constitutional redistricting amendment, with some going as far as to claim that it is worse than the current status quo.
Their concerns are that the proposed amendment—which would establish a redistricting commission to draw the state legislative and congressional maps—does not go far enough. And as one commentator on this blog recently argued, the design of the bipartisan commission poses “a substantial risk of even worse gerrymandering in the future.”
Are these claims valid? Is the design of the proposed amendment fundamentally flawed? What is the likelihood that this new process will lead to more bias, or the protection of incumbents?
As a researcher in the area of legislative redistricting, I have spent the past decade studying the effects districting institutions on democratic elections.
For a new book project, which is a collaboration with Michael Latner, Anthony McGann, and Tony Smith, with whom I co-wrote Gerrymandering in America, we have compiled the only, comprehensive dataset on redistricting outcomes in all 50 states, in the 99 state legislative maps that were redrawn in 2011.
Although finding this data was an extraordinary challenge and took us nearly three years to complete, the dataset has given us a unique window into the effects of redistricting reforms and some insight into how Virginia’s proposed amendment will affect our elections in the future.
The early findings of this research, which we discussed in a recent Washington Post article, suggests that many of the claims advanced by opponents of the new amendment are simply not supported by evidence.
While the proposed amendment is not perfect, it will dramatically improve fairness and transparency in the districting process, and the data suggest these reforms will lead to substantially less bias in our elections.
Below, I will address three of the most common claims critics have made about the amendment, and discuss what our years or research and data tell us.
Claim #1 – The proposed composition is fatally flawed because half of the members are politicians.
As currently proposed, the commission would include sixteen members – eight would be citizens (who are selected by a committee of retired judges), and the other eight would be drawn from the General Assembly (two Republicans and two Democrats from each house).
Further, the amendment would require a supermajority of both six of the eight legislative members and six of the eight citizen members, which would ostensibly give at least two Republicans (or Democrats) the power to veto a plan.
How does the design of this commission likely to affect the types of bills passed?
First, let’s consider the political make-up of the committee. Because half the seats belong to citizens and the other half to elected members of the General Assembly, it represents a “hybrid” of the bipartisan and nonpartisan redistricting commission models used by other states.
The Citizens Commission used in California, for example, resembles a nonpartisan commission because it explicitly bars politicians from membership. However it does requires that eight of the 14 members are members of the two largest parties, while at least four are unaffiliated with a party.
On the opposite extreme, New Jersey’s bipartisan redistricting committees require a balance between Democrats and Republicans and do not bar politicians.
How did similar states fare in the types of district maps they produced?
My research finds that, at least in terms of partisan bias, both bipartisan political commissions and nonpartisan citizen commissions fare far better at preventing partisan gerrymandering than political redistricting in a state legislature.
The lessons from our years of research on state legislative districting can be boiled down to a single, simple rule: Partisan gerrymandering occurs when members of one-party draw the maps without input from the other.
This occurred in the Virginia House of Delegates map that was drawn entirely by Republicans in the House and signed by Governor Bob McDonnell in 2011. (By contrast, although Democrats drew the Senate map, Governor McDonnell chose to veto that plan that he argued was a partisan gerrymander). In short, when redistricting institutions prevent one party from having a monopoly on districting decisions, we see markedly better outcomes and maps almost always free of extreme one-party bias.
That said, opponents are right to raise concerns about politicians seated on the proposed commission. The gold standard of redistricting commissions are those that bar politicians altogether. Sometimes, a bipartisan commission with an equal number of politicians from each party can lead to different types of problems, such as “incumbent protection” schemes that reduce competition in order to create “safe seats”.
Consider the bipartisan commissions used in New Jersey. Our analysis shows that in 2011, they produced redistricting maps that, although were neutral in their treatment of Republican and Democratic candidates, led to the drawing of “safe” seats. The New Jersey example suggests that, when two parties are forced to work together, they may collude with one another (and against the citizens) by drawing maps that are non-competitive.
To understand whether states with similar bipartisan commissions also enacted incumbent protection schemes, we looked at all the states that drew maps with balanced politician commissions, like New Jersey. However, we didn’t find a clear pattern that state legislative elections were less competitive overall.
Thus, while New Jersey’s commission appears to be an incumbent protection gerrymander, it may simply be an outlier, and there is no reason to expect other, similar bipartisan commissions will lead to similar types of gerrymanders.
It is worth noting that the proposed redistricting commission in Virginia is not a pure “bipartisan” committee, like New Jersey’s. Because it gives equal power to citizens, there is good reason to believe that it will produce outcomes that are both politically fair and that embody the interests of normal citizens (i.e. having competitive elections).
What’s more, many of the bipartisan and nonpartisan commissions that drew state legislative maps in 2011 had super-majoritarian rules for passing the maps that are similar to the one proposed in the amendment. By all accounts, this rule appears to have fostered negotiation and consensus, rather than stalemate.
In short, the data suggest that the proposed redistricting commission–which combines elements of the non-partisan and bipartisan models and imposes a supermajoritarian decision making rule–is far preferable to Virginia’s hyper-partisan status quo.
Claim #2 – The amendment will lead to a de-facto Republican gerrymander because a deadlocked map is sent to the conservative Supreme Court of Virginia (SCOVA)
Opponents of the amendment argue that it gives too much power to the Supreme Court of Virginia, which would be authorized to step in and draw the maps if the redistricting commission fails to pass a map after two separate attempts by the General Assembly to adopt the commission’s proposals. Critics assert that because Republicans have selected most of the members on the Supreme Court, it would give partisan judges the power to draw Republican gerrymanders.
When we started our project on gerrymandering in state legislatures, we too were interested in the effects of courts intervening in districting. We wanted to know what types of maps state courts tend to draw when they take control of the process.
We were able to answer this question, because in the last decade, several courts have stepped in to control redistricting. This occurred in Kansas, Minnesota, Nevada and New Mexico, where courts completely took over the redistricting process of the state legislative maps.
In these four states, on average, the level of bias decreased after the courts redrew them, although the magnitude of this decrease was small. However, there was one outlier. In Minnesota, the maps from the previous cycle were slightly biased in favor of Republicans, and the maps passed by the court didn’t fundamentally change this bias.
Our research indicates that when courts are forced to make redistricting decisions, they tend to prefer incremental incremental changes to the district lines, likely because they are weary of getting involved in political fights. This was clearly the case in the four states in which courts took over redistricting of state legislative maps.
So what does this mean for Virginia if the constitutional amendment is approved? In the unlikely event that redistricting shifts to the Supreme Court, there is little reason to believe that it would approve an aggressive gerrymander, for either party.
It is also worth noting that having the court as a “back up plan” is very common. At least nine states grant a state court the power to step in and draw the map if a primary redistricting authority fails to approve maps.
In other states, the courts can assume this rule if legislature fails to enact a court-ordered remedial map. However, politicians generally do not like it when the redistricting process shifts to the courts. When courts intervene, this creates uncertainty and risk. If there is an alternative process that both parties perceive as fair—such as the commission currently proposed—political parties tend to prefer to let the process play out.
This is typically the case in Washington and Iowa, where the state legislature is able to “veto” a plan passed by a commission. However, the legislatures rarely exercise this power, because members of both parties have come to view the process as transparent, fair and predictable.
In this regard, the rules proposed in the constitutional amendment that give the General Assembly the opportunity to “veto” a map approved by the commission are unlikely to lead to stalemate that would give Supreme Court control over the redistricting.
Claim #3 – The commission is free to approve gerrymandered districts because there is no specific criteria defined in the amendment.
Opponents have argued that the amendment lacks rules that govern how the maps ought to be drawn. Some say it is a fatal flaw that will allow politicians to influence the maps. However, this claim rests on a fundamental misunderstanding of the effectiveness of redistricting criteria.
Our research shows that redistricting criteria do not effectively prevent partisan gerrymanders. The truth is, those motivated to rig maps often disregard the rules to get what they want because they know that the courts can do little to stop them (see my response in claim #2 about the nature of the courts when it comes to redistricting).
We looked at several of the most common types of redistricting criteria that attempt to impose “rules” on redistricting authorities, including bans on compactness and political favoritism, as well as rules that require competitive elections, and the preservation of various political and “communities” boundaries. The presence of these criteria had no effect on redistricting bias or the competitiveness of elections in the maps that were eventually adopted. In short, they simply do not work.
But there is one scenario in which these rules do appear to work: when bipartisan and nonpartisan redistricting commissions draw the maps. The balance of the evidence suggests that the fair maps that these states passed had less to do with the rules that governed redistricting and more to do with the fairness of the redistricting process.
In sum, “fairness” in districting is better understood as a process rather than an outcome. When the process is inclusive of many voices (and not just one party’s voice) and it is open to public scrutiny, the maps are almost always more fair. On the contrary, when a state chooses instead to “control” redistricting authorities by giving them rules, this does not prevent politicians from drawing gerrymanders, because the courts are simply unable or unwilling to strike down their aggressive gerrymanders.
Indeed, we saw this in Virginia, when a state court rejected a “compactness” challenge to the House of Delegates and Senate maps. Despite the fact that the Virginia constitution explicitly requires districts to be compact, the rules are essentially impossible to enforce.
Redistricting reforms will improve our democracy
Our data does not support the argument that these reforms will lead to more gerrymandering and more incumbent protection. An evidence-based assessment shows that these claims simply do not hold water, and that preserving political districting in the state legislature almost always leads to worse outcomes.
When we consider the balance of evidence, it is clear that the proposed amendment represents a dramatic improvement over the status quo. By fundamentally changing the districting process to include citizens’ voices, the reforms will promote transparency and inclusivity in redistricting and will dramatically reduce political interference in our elections.
Democrats may be tempted to keep the power for themselves and reject the proposed constitutional amendment, given that they now hold the governorship and majorities in both the House and Senate. But sooner or later Republicans will return to power, and Democrats will come to regret passing on the opportunity to adopt fair districting.
Alex Keena is an Assistant Professor of Political Science at Virginia Commonwealth University. He completed a Ph.D. in Political Science at the University of California, Irvine in 2016. His research focuses on political representation, the US Congress, and elections. He is co-author of Gerrymandering in America: the House of Representatives, the Supreme Court, and the Future of Popular Sovereignty (2016 Cambridge University Press) and has published several articles on the topics of redistricting and money in politics.