On redistricting reform 'who' is less important than 'what.'
Published March 12, 2020
By Andy Jackson
The first two decades of the 21st century have been bookended by court cases that struck down North Carolina’s legislative maps. In 2002, Stephenson v. Bartlett stuck down Democratic-drawn districts in 2002 and Common Cause v. Lewis struck down Republican-drawn maps last year.
With the court challenges laying down the markers and North Carolina set to redraw state legislative and congressional maps next year, manyproposals for redistricting reform have come forward. The problem with many of those proposals is that they are focused on the wrong question. Good reform is focused on what the rules are for map drawing, rather than on who is drawing the maps.
The most important question is not “who draws the maps?”
In my September 2019 piece “Fundamental principles of redistricting reform,” I wrote about the principles that should undergird any attempt at changing how North Carolina draws districts. That article was in response to several bills that had been submitted to the General Assembly on redistricting. All those bills included some form of commission. Although the function and power of the commission varied widely among these bills, each bill addressed the ideal role of a commission and how it should be composed.
But we do not need a commission.
Too many activists and politicians get hung up on the question of who draws district maps and see so-called independent redistricting commissions as a panacea that will automatically make legislative districts “fair.”
However, commissions do not immunize a body from politics. The same political forces that operate when legislators draw maps also operate when commission members draw maps. Assuming that commission members are politically knowledgeable, they will squabble over district lines as much as legislators do.
But what if commission members are supposed to be politically independent? California’s attempt at creating an independent commission did not go well, with no net change in the number of competitive congressional seats and an increase in the number of seats that favored the majority party.
How did things go so wrong in California? The left-leaning ProPublica discovered that one party successfully manipulated the commission into creating maps that benefitted their party:
As part of a national look at redistricting, ProPublica reconstructed the Democrats’ stealth success in California, drawing on internal memos, emails, interviews with participants and map analysis. What emerges is a portrait of skilled political professionals armed with modern mapping software and detailed voter information who managed to replicate the results of the smoked-filled rooms of old.
For those reasons, researchers have found that “independent commissions may not be as politically neutral as theorized,” undercutting the supposed reason for turning redistricting over to them.
The most important question is “what are the rules for drawing the maps?”
More important than who draws districts are the rules that guide district drawing. The good news is that most of the rules needed to prevent gerrymandering are already in place.
The North Carolina Constitution (Article II, Sections 3 and 5) lays out several requirements:
Equal population: No more than a 5 percent variation from the ideal population for state legislative districts. Interpretations of the U.S. Constitution have caused the General Assembly to draw congressional districts with virtually no deviation from the ideal population.
Districts must be contiguous (including bodies of water).
Do not divide counties: As laid out in Stephenson v. Bartlett, counties cannot be divided except to the minimum extent possible to comply with equal population and Voting Rights Act requirements.
Only drawn once every ten years, except to comply with court orders.
As a practical matter, the Voting Rights Act of 1965 also requires the state to create districts in which politically cohesive racial minorities in areas where they are sufficiently large and geographically compact to form districts in which they can elect their preferred candidate. Legislators are also prohibited from using racial data when redistricting except as needed to comply with the Voting Rights Act.
Finally, legislators have also considered compactness and the need to avoid the division of political subdivisions (such as cities and precincts).
What should be excluded when drawing district maps
So, what could be added to that list of rules to improve redistricting in North Carolina? Partisan data should not be considered when drawing districts. Such data includes the location of incumbents’ homes, election results, and party registration. Other data that could be used to gauge partisanship should also be excluded. A bill that prohibits such data would be a significant step towards redistricting reform.
A good redistricting bill would also be noteworthy for what it does not include, such as special masters (individuals tasked with drawing districts by themselves), pretenses of “independent” redistricting commissions, or the complete removal of the legislature from the redistricting process.
Of several redistricting reform bills offered last year, only two meet the criteria laid out in this article. One of those bills, H140 does so without having a commission draw the districts (its commission is advisory).
North Carolina can have a better redistricting process. The first step towards that goal is making sure we are answering the right question.