How (Not) to Tell You’ve Been Gerrymandered (Part I of Several)

In a previous post, we explained how sophisticated map analysis can support drawing district lines that result in party representation in the legislature that is dramatically different from the distribution of support for a party in the population. Over several upcoming posts, we will describe the analyses that are being used to identify biased district maps and to try to persuade courts of bias. The analyses are somewhat mathematical but largely not beyond the comprehension of the general reader with modest effort. In this outing, we provide some background on the court decisions that set the parameters for these analyses.

What does the Constitution of the United States of America require regarding district maps? First, that a census be conducted every ten years and that representatives be apportioned to the states according to their populations, except that every state gets at least one representative. The Supreme Court of the United States has ruled that all districts that elect representatives to any office except the United States Senate must have equal-sized populations. This is the principle known as “one person, one vote.”

Section 4 of the Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

In the absence of Federal legislation to thwart partisan gerrymandering, some politicians and strategists argue that the power to draw maps rightfully belongs to the legislature and that there is nothing wrong with the majority party controlling the outcome of that process. Opponents of partisan gerrymandering argue that, as a consequence of the First Amendment’s guarantee of freedom of assembly and the Fourteenth Amendment’s guarantee of equal protection of the laws, that maps with excessive partisan bias should be considered unconstitutional. The question has come before the United States Supreme Court several times, but has not been ruled on decisively.

In the 2004 case, Vieth v. Jubelirer, the Court considered whether the question of partisan gerrymandering was even justiciable. The Court split four-four on the question. Justice Kennedy sided with the conservatives in declining to intervene in the case, but whereas the four conservative justices argued that partisan questions could not be justiciable, Kennedy wrote a separate opinion arguing that if appropriate standards could be developed, partisan gerrymandering could be taken up in the future. It is Kennedy’s opinion that has spurred efforts to develop the analyses that are being used in current cases.

One simple idea for a test is proportionality, the idea that the number of seats a party holds should approximately reflect the party’s support in the general population. Indeed, stories in the press often note violations of proportionality as an indicator of bias and it can serve as a red flag, prompting further analysis. But proportionality has several problems that make it unsuitable as a standard for evaluating partisan bias.

An important mathematical issue is that when voters’ party preferences are not extreme, the seat balance is sensitive to small differences in party preference. In particular, on average, a specified level of voter preference for the majority party tends to translate to an even higher percentage of seats. In addition, courts are reluctant to consider proportionality as a criterion, in part because it is difficult to establish standing to sue. In the U.S. legal system, standing is achieved by demonstrating that one has suffered direct harm, which is difficult to argue based solely on lack of proportionality.

In future posts, we will describe the methods that are currently being used in gerrymandering court cases and in support of legislative initiatives.

How to Gerrymander!

Imagine you are a political party. At present, you control the legislature and executive of your state government and you have the power to draw the maps that divide the state into Congressional and legislative districts. You want to ensure that you retain control of the legislature in future elections, even if the voting public shifts away from you. Can you do that with district maps?

Or you are a group of self-interested officials who can make their own individual lives easier by manipulating district maps. Remove the potential well-funded and popular competitor for your seat. Grab a few more likely voters and give away a neighborhood that you lost last time. Keep your biggest donor in your district. Can you do that with district maps?

Yes, that’s precisely what gerrymandering is. With publicly available information, one can draw maps that carefully allocate likely voters in your party and likely voters in the opposition party to districts in order to ensure that your party is overrepresented. The objective is to make the opposing party waste as many votes as possible and make your party waste as few as possible. We think of a vote as “wasted” if it goes to a losing candidate or if it goes to a winning candidate beyond the margin necessary to win. The two techniques for creating wasted votes are “cracking” and “packing.”

Cracking means to split your opponent’s votes across districts so that they don’t constitute a majority in any of them. When cracking, you want your opponent’s votes to be as large a minority as you can afford, although you want to leave a bit of a buffer to account for moderate shifts in voter preference. Cracking maximizes the number of wasted opposition votes that go to losers and minimizes the number of your wasted votes that go to winners.

Packing means to concentrate your opponent’s votes into a few districts where they constitute an overwhelming majority. You don’t mind if the opposition wins some seats, as long as they don’t win enough to threaten control. Packing maximizes the number of wasted opposition votes that go to winners and minimizes the number of your wasted votes that go to losers.

Preserving partisan power isn’t the only motivation for gerrymandering. Other forms of gerrymandering are employed to protect incumbents. For example, a district might be drawn to exclude a popular potential primary opponent. Before passage of the voting rights act in 1965, districts were gerrymandered to reduce the influence of minorities, particularly African-Americans. The practice persists today and since a Supreme Court decision in 2013, legal action has been required to remedy racial gerrymandering when it occurs.

We often think of gerrymandered districts as having strange-looking maps, and indeed, that is often the result. But districts with strange shapes are not necessarily gerrymandered and gerrymandered districts need not have strange shapes. Odd shapes are sometimes necessary to preserve the voting power of communities of interest or minority communities. And with modern mapping technology and data, it is possible to draw perfectly reasonably shaped districts with strong partisan biases.

Redistricting Criteria in South Carolina

We have discussed the issue of who draws legislative district boundaries during the redistricting process. Do voters choose their representatives, or do representatives choose their voters? The criteria for drawing boundaries may be an even more important issue than who draws those boundaries in answering this question in favor of voters.

There are some requirements that must be met by all states when redrawing district boundaries. All must comply with constitutional equal population requirements. Districts for the houses of the General Assembly and the US House of Representatives must be approximately equal in population. Also, all states must abide by the requirements of Section 2 of the Voting Rights Act (VRA), although South Carolina and other states are no longer subject to preclearance of voting changes under Section 5 of the VRA. The VRA is an extremely important protection that allows minorities to elect representation of their choice.

Court cases over the years have established more specific guidelines for how these universal requirements are implemented. Within those boundaries, each house of the SC General Assembly has created its own specific criteria.  In 2011 the South Carolina Senate issued its criteria, which are available at http://redistricting.scsenate.gov/Documents/RedistrictingGuidelinesAdopted041311.pdf. The House also issued criteria, available at http://redistricting.schouse.gov/6334-1500-2011-Redistricting-Guidelines-(A0404871).pdf. The House criteria of 2011, interestingly, include “Incumbent Protection” as a specific requirement.

The League of Women Voters believes that criteria should be enacted in law, rather than established through temporary guidelines. And, we believe that criteria should prohibit protecting either incumbent individuals or political parties. How would we achieve this?

The criteria embedded in our preferred redistricting legislation (H.3054 and S.230) seek to protect the interests of all citizens and do not allow protection of incumbents or parties:

Apportionment redistricting plans for the Senate, House of Representatives, and United States House of Representatives districts shall comply with the United States Constitution and the federal Voting Rights Act, 42 U.S.C. 1971, et seq. Redistricting plans must be comprised of districts that are geographically contiguous and, to the greatest extent possible, geographically compact, while maintaining and respecting the geographic integrity of any city, county, city and county, neighborhood, or communities of interest including, but not limited to, rural communities, coastal communities, or separation by geographic features such as lakes, major rivers, national forest, or mountains. Communities of interest may not be interpreted to include relationships with political parties, incumbency, or political candidates. The place of residence of an incumbent or a political candidate may not be considered in the apportionment of districts, nor shall districts be apportioned for the purpose of favoring or discriminating against an incumbent, political candidate, or political party. In drawing districts, the commission shall seek to achieve substantial population equality among districts with deviations for state House of Representatives and Senate districts allowable to achieve compliance with nondiscriminatory criteria.

There is little about the redistricting process that is simple. What is a “community of interest?” What does it mean to be geographically compact? To some extent, answers to these questions have been provided by a long series of federal court cases but there is still considerable room for interpretation. There probably always will be. However, we believe that the provisions of H.3054 and S.230 would establish a sound foundation for the redistricting process in South Carolina and should be adopted by the General Assembly to give citizens confidence that their votes matter, that they are not simply participating in a process in which the outcome has already been determined by representatives choosing their voters.

H. 3054: A Path to Empowering Voters and Decreasing Political Polarization

Citizens across the political spectrum agree that reforming our redistricting process is essential if we are to minimize the polarization that is damaging our democracy and let voters know that their votes matter. There are differences about how to get there, but the goal is clear – a government in which voters are empowered.

In the past, our legislators have relied on a state constitutional provision that authorizes them to redraw legislative districts, and they have created policies in each house of the General Assembly to govern how this is done. The League of Women Voters of South Carolina strongly supports H. 3054, a bill to reform this process and put the emphasis back on the interests of voters. H. 3054 has been filed by a bipartisan group of South Carolina House members: Gary Clary, Jason Elliott, William Cogswell, Mandy Powers Norrell, Chris Wooten, Ivory Thigpen, Seth Rose and Beth Bernstein. This bill would do two important things: establish a South Carolina Redistricting Commission to draw district lines and define the criteria that would be used to draw those lines.

The members of the Commission would be selected as follows:

 (1)    two members must be appointed by the Governor, no more than one of whom are members of the appointing Governor’s political party;

(2)    two members must be selected by the Senate, one upon the recommendation of the members of the majority political party in the Senate and one upon the recommendation of the members of the largest minority political party in the Senate;

(3)    two members must be selected by the House of Representatives, one upon the recommendation of the members of the majority political party in the House of Representatives and one upon the recommendation of the members of the largest minority political party in the House of Representatives;

(4)    the members of the South Carolina Redistricting Commission appointed pursuant to items (1) through (3) shall at their first meeting by majority vote elect a seventh member who shall serve as chair. If the members are unable to elect a chair, after ten ballots, or in any case if no chair has been elected within ten days after the organizational meeting, the Governor shall appoint the chair.

What would this Commission actually do? “The commission shall establish its own policies and procedures as necessary . . .  and the commission shall adopt such district boundaries as are approved by a simple majority of the members of the commission.” It would then be required to hold at least four public meetings across South Carolina to review their draft maps, before developing a final version to be submitted to the General Assembly for a vote.

This process does not take the General Assembly out of the process of redistricting. Why? First, we have a very pragmatic concern. We frankly hope that this approach will find legislative support because legislators will understand that if they have legitimate concerns, they will have an opportunity to address them. However, our choice of this approach is not based only on a legislative strategy.

The League of Women Voters has national experience with a wide range of methods of redistricting. We have listened to colleagues in other states who tell us that every system will involve some level of legislative influence, whether explicit or behind the scenes. We have agreed with those colleagues that acknowledging this allows us to require a very high level of transparency from those legislators regarding any influence they have on a final outcome. H. 3054 provides significant public input into the Commission maps and any changes made by legislators would have to be made and justified very publicly. This contrasts markedly with previous redistricting processes in which legislators did as they pleased and as one legislative staffer told us, “no one was really paying attention.”

We are also aware of studies showing that independent commissions by themselves do not necessarily produce outcomes that are better than maps drawn by legislators. To actually make a difference, clear voter-first criteria must be defined and enforced. We will discuss these in our next blog post.

Stay tuned, as we try to make South Carolina’s 2020 redistricting process one that serves the interests of our state’s voters!

The 2020 Census–Foundation of Redistricting, and So Much More

Reapportionment (the allocation of Congressional seats based on population) and redistricting (the redrawing of boundaries for the U. S. House and state House and Senate districts) depend on an accurate, timely and complete census. Our every-decade population count also establishes guidelines for allocation of federal funds for a wide range of programs. However, there are major hurdles facing the 2020 census.

Funding is always an issue. The most immediate threat is the government shutdown. The Census Bureau is closed during the shutdown, but carryover funding from 2018 is continuing preparations for 2020. That money will eventually run out. The cost of the 2020 census is estimated at $15.6 billion, and a prolonged funding stalemate could be disastrous.

Another threat is the proposal that the census include a question on citizenship. The census is supposed to be a count of total population, not citizens, and there is concern that the question could discourage responses, even from legally documented workers. This issue is going before the U. S. Supreme Court, with oral arguments scheduled for February.

Cybersecurity threats are another serious concern. Last year the Census Bureau identified close to 3,100 security weaknesses in the IT systems for the census. Fixing these is a big job.

Will there be enough workers? For the 2010 census the government hired about 635,000 temporary workers but the low unemployment rate is making hiring difficult in 2019.

Finally, there is concern that the census will undercount communities of color and other hard-to-count populations. This concern has been heightened because the Justice Department has raised the possibility of accessing census data to force release of confidential census responses earlier than the 72 years after collection required by law.

The census is central. The American people must support efforts to ensure that it is accurate, timely, and that there are no exceptions to the well-justified confidentiality of responses. We all depend on it!

An Opportunity to Learn!

Does My Vote Even Count? A Forum on Election Reform on Tuesday, Jan. 22, at 5:30 pm to 7 pm at the Richland County Library Main Auditorium , 1431 Assembly Street, Columbia provides a chance to learn about Redistricting.

The forum panelists will include SC House Representatives Beth Bernstein, Gary Clary, Kirkman Finlay and Senator Mia S. McLeod of the State Senate, plus Dr. Duncan Buell, Professor of Computer Science at the University of South Carolina and recognized expert on voting technology and security and Dr. John Ruoff, a recognized authority on voting rights and redistricting in South Carolina.

These experts and legislators will address how proposed South Carolina legislation would require unbiased criteria and a non-partisan commission in charge of redrawing our state voting district lines after the 2020 census.

They will also discuss South Carolina’s purchase of a new voting system to replace the current aged out system — a new system that will ensure secure, accurate, transparent and verifiable elections.

The Journey Begins!

We are on our way to doing important work for South Carolina. We are so glad you have joined us to explore what we can do to ensure that voters choose their representatives, rather than representatives choosing their voters.

Here’s what the trail may look like as we see it now. It’s going to be a long trek –2019 through 2022.

During 2019 and 2020, we will support legislation for an independent redistricting commission and appropriate criteria for drawing election district lines. At present, a bipartisan bill, H. 3054, sponsored by Rep. Gary Clary and others, is our preferred approach but other bills have been filed that would represent a significant improvement over previous criteria and processes. Our main task at present will be to create awareness of the need for the commission and criteria reform and to build public support for these changes. We will also work on providing data to draw better lines after the 2020 census.

In addition , we will follow developments in the courts and in other states to see what we can learn from their experience. We will identify problems with existing districts at all levels that need to be addressed. And, finally, we will encourage citizens to respond to the census — the starting point for every good thing we want to happen!

In 2020-2021, we will seek to empower local Leagues to address redistricting for city, county and school board elections.

And, in 2020-2021, we will be on the lookout for opportunities to contribute to the process in every way possible. We’ll keep a close watch on proposals as they develop and comment on them. And, if the final maps don’t meet our standards or our criteria, we will be prepared to litigate — yes, litigate! We are going the whole way. So, pick up your backpacks, put on the boots, find those walking sticks — we’re off on a long South Carolina hike from the mountains to the sea — with a long stopover at the State Capitol in Columbia!

Linda Powers Bilanchone

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