- After the Common Cause v. Lewis ruling, legislators are talking about passing redistricting reform.
- Substantive principles that should guide any reform include maintaining current constitutional requirements, focusing on the communities represented by districts rather than the state, and consistency on the use or nonuse of partisan data.
- Procedural principles that should guide any reform include maintaining democratic accountability, avoiding the pretense of nonpartisanship, and choosing commission members in a transparent and balanced process.
The recent ruling in Common Cause v. Lewis has increased talk among North Carolinians about creating a new system for redistricting, including some form of redistricting commission.
As we consider the possibility of redistricting reform, let’s lay out some fundamental principles against which any proposal should be judged. I will first address substantive principles that should guide redistricting reform no matter who is drawing the districts and then address principles on election commission procedures.
Following these principles will ensure that any redistricting process enacted by the General Assembly will not lend itself to being hijacked by unelected bureaucrats or interest groups, and that the districts created by that process reflect the interests of the constituents who reside in them.
Do not retreat from current constitutional requirements on redistricting. All current redistricting requirements in the NC Constitution should be retained. The North Carolina Constitution (Section 2, articles 3 and 5) lays out the following requirements for drawing state legislative districts:
- Roughly equal representation of districts
- Contiguous districts
- No dividing counties (subject to federal law)
- Districts only drawn every 10 years
Federal law requires that states attempt to create congressional and state legislative districts where racial or ethnic minorities have a reasonable chance of winning election, and a stricter equal representation criteria for congressional elections. Those requirements are outside the scope of any state redistricting reform proposals and need not be considered here other than to note that any reforms much comply with them. In addition, map drawers must endeavor to properly balance the 1965 Voting Rights Act requirements for racial or ethnic minorities to be able to elect their preferred candidates of their choice, with the 14th Amendment which requires that race not be the predominant factor when drawing districts.
Each of the state constitutional criteria limits the ability of map drawers to manipulate districts. Of those four criteria, only the requirement that limits the crossing of county lines when redistricting seems likely to be challenged. If the county line requirement is removed, we will likely see tendrils emanating from urban centers to take in rural communities with very different interests (see the next section for why that would be).
Legislative districts are about their local communities, not the state. Those drawing maps should take care to consider the local communities represented by those districts. Those local interests should not be subsumed by statewide considerations.
Specifically, local districts should not be drawn to satisfy statewide proportionality goals, thereby creating a backdoor proportional representation system. Measures such as the efficiency gap, which looks at how many votes for each party are “wasted” statewide, do not differentiate between the effects of gerrymandering and the effects of geography. Their use in drawing districts (as opposed to analyzing them) would force map drawers to gerrymander districts in ways that they would never do under neutral criteria.
A focus on local, rather than statewide, considerations when drawing legislative districts is also required for compliance with the Voting Rights Act, as clarified in Alabama Legislative Black Caucus v. Alabama:
A racial gerrymandering claim, however, applies to the boundaries of individual districts. It applies district-by-district. It does not apply to a State considered as an undifferentiated “whole.” We have consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more specific electoral districts (emphasis in the original).
I was recently on a Spectrum News segment with Duke University mathematician Jonathan Mattingly, who was one of the plaintiff’s expert witnesses in Common Cause v. Lewis. During the segment Mattingly assured viewers that they were not trying to impose a proportional representation regime on North Carolina. They should be held to their word.
The use of partisan data should be either consistently allowed or consistently banned, preferably banned. There is no mention of the use of partisan data for redistricting in the North Carolina Constitution and it has been used, with increasing sophistication, for decades. In a turn from precedent, the judges in Common Cause v. Lewis banned its use in drawing the remedial state legislative maps they ordered. While the ruling did not prohibit the future use of partisan data in drawing districts, without clearer guidance it is best not to use it at all. While that would certainly not eliminate partisanship from mapmaking (either by legislators or independent commissioners), a ban on the use of partisan data would make the use of partisanship in district mapmaking less precise and produce maps that can better withstand legal challenges. The only exception should be for compliance with the 1965 Voting Rights Act.
The process must be subject to bipartisan democratic accountability. As the elected law-making body, the state legislature has a proper role in any redistricting process. That role does not necessarily involve drawing maps; it would be enough for the legislature to have a role in naming who would serve on a redistricting commission and giving final approval of maps. Both major parties should have an equal role in naming commission members.
Relatedly, while courts may sometimes name special masters (individuals tasked with drawing legislative maps) as part of their rulings, special masters should not be part of the normal redistricting process, especially if their decision is the final step in the redistricting process.
There should be no pretense of independent nonpartisanship. How districts are drawn is a political question. There are few truly politically neutral people and even fewer people who are both politically neutral and politically knowledgeable enough to effectively help draw legislative districts.
So, pretending that the redistricting process can be done in a completely nonpartisan manner requires participants to be hypocrites. That kind of hypocrisy was on full display in another context when Gov. Roy Cooper first named Damon Circosta as an independent member of the State Board of Elections and Ethics Enforcement, and then later named him as a Democrat member of the State Board of Elections.
In addition, the pretense of nonpartisanship also leaves any group tasked with redistricting more vulnerable to manipulation, both by commission members and staff and by political parties and outside groups.
The result is that independent redistricting commissions do not deliver on their promise of impartiality. Researchers from Yale and UCLA have found that independent redistricting commissions do not create competitive districts at a higher rate than legislatures or by politician-led commissions do, concluding “independent commissions may not be as politically-neutral as theorized.”
It would be far better to take James Madison’s advice in Federalist 51 and rely on a system in which ambition of one side is made to counteract the ambition of the other. Rather than making a pretense of nonpartisanship, both the process for choosing redistricting commission members and the regulation of their conduct should be explicitly bipartisan with both major parties having an effective veto in the final version of the maps.
The people chosen to draw maps should acquire their positions in a transparent and balanced process. Most redistricting commission proposals include a two-step process to select those who will serve on the commission. A pool of applicants or nominees is set first and then the commission members are chosen from that pool. That gives a great deal of power to whoever sets the pool of candidates for the commission or makes the final selection.
There should be no arbitrary “neutral” selection of who can be in the pool of commission candidates and no arbitrary “neutral” selection of who gets picked from that pool to serve on the commission. The entire selection process should be transparent and open to input from both major parties. This requirement is crucial if North Carolina moves towards a redistricting commission.
As legislators consider redistricting reform over the next few months, they must look beyond hyperbolic headlines about “fair maps” and fully consider the implications of any redistricting reform proposal that comes before them. If the North Carolina General Assembly is going to adopt redistricting reforms that will affect our politics and policies for decades to come, it is crucial that they get it right.