Can Someone Put a Stop to the Insanity of Political Redistricting?

by Nicholas Stephanopoulos | April 4, 2012

To put it mildly, the latest round of redistricting has not been the most edifying experience. Over the past year, politicians have assembled throughout the country to carve districts that are equal in population, but that otherwise serve their own interests rather than the public’s. Protracted litigation has determined, on a case-by-case basis, which districts will be represented by minority groups. And the courts have been intimately involved not just with minority representation but also with every other aspect of the process. Already, in the current cycle, more than 150 lawsuits have been filed.

Americans have gotten used to this baroque struggle, but it’s worth remembering that most foreign observers consider it bizarre, even pathological. Compared to other countries with similar electoral systems, the American model of redistricting is an extreme outlier. And not only is the U.S. model different from its peers, it is also inferior. When it comes to elections, it’s clear that American exceptionalism is a vice, not a virtue.

District design raises three key questions, each of which America answers differently from almost every other Western democracy. The first is which institutions should have authority over the line-drawing process. Though there are exceptions, the typical position in the United States is that state politicians should hold this power, and that their decisions then should be reviewed carefully by the courts. Abroad, in contrast, districts are usually crafted by independent commissions staffed with geographers, political scientists, and the like. The political branches either have no role at all, or merely rubber-stamp the commissions’ output. And the courts rarely tackle redistricting issues—and never as aggressively as in America. (The only country that even approaches the U.S. model is France.)

The second question, independent of who does the drawing, is which criteria should be used to design districts. At the congressional level, the only universal U.S. requirements are contiguity and equal population—the latter defined strictly so that districts may deviate in size by no more than a person or two. Abroad, substantially larger deviations are allowed: 10 percent in Australia, 25 percent in Canada, and even higher rates in Britain. More importantly, other countries’ districts are commonly required to be geographically compact, to preserve political subdivisions and communities of interest, and to take into account people’s means of communication and travel.

The final question is how representation should be secured for disadvantaged minority groups. In America, such groups may file suit wherever majority-minority districts relatively easily could have been, but were not, drawn. In certain states, district plans are also banned from reducing the existing level of minority representation. Abroad, some countries (e.g., Australia, Britain) make no special effort to get minorities into their legislatures. Other countries (e.g., India, New Zealand) explicitly reserve a certain number of seats for minority members. And still other countries (e.g., Ireland, pre-1994 Japan) use multi-member districts in which minorities can win seats without needing to capture a plurality of the vote.

Of course, one possible response to all of these foreign approaches is just to ignore them. America does many things differently—and, some would say, better—than its global peers. Elections, however, are an area in which this sort of exceptionalism is especially inapt.

Start with the institutions involved in redistricting. No one affirmatively wants the U.S. courts to be deciding more than a hundred cases per cycle. But this level of judicial intervention is inevitable if the political branches are entrusted with the power to design districts. Left to their own devices, the politicians would—and did, in the era before the courts entered the field—flout the equal population principle, pay little heed to minority representation, and gerrymander to their heart’s content. Even under the courts’ watchful eye, rampant partisan line-drawing still takes place in America, because it is an evil that the judiciary has not yet figured out how to fight.

Abroad, in contrast, gerrymandering is essentially a thing of the past. By definition, neutral commissioners never intend to devise plans that help or harm particular parties. It’s possible that their efforts could unintentionally favor a specific group, but empirically such inequities are relatively uncommon—and can also be averted by taking into account plans’ probable electoral consequences (as in South Australia). With serious problems rarely arising, foreign courts have little cause to interfere with the redistricting process. They can freely defer to the commissions’ choices, secure in the knowledge that no democratic harms will follow.

Next consider redistricting criteria. There is a global consensus that equal population is one important value that districts should aim to realize. But it is far from the only relevant value. If districts are to be defined territorially, it is also crucial that they correspond to some underlying geographic reality—to towns or counties or other genuine communities. The foreign criteria recognize that population and territory must be balanced in any sensible districting scheme. The American preoccupation with population, on the other hand, misses half the picture. It causes communities to be endlessly fused and fragmented in the pursuit of perfect population equality.

With respect to minority representation, finally, there are no perfect solutions on the horizon. In a country with a minority population as large and historically mistreated as America’s, the issue cannot simply be ignored. The status quo is also unsatisfying since it spawns large volumes of litigation and fails to provide anywhere close to proportional representation for African Americans and Hispanics. And while explicitly reserved seats for minority groups might seem promising, they conflict with the ideal of colorblindness, and may very well be unconstitutional.

Perhaps the best option, then, are multi-member districts in which candidates are elected via cumulative or preferential voting. These systems are more complex and less familiar than the single-member, plurality-vote districts to which Americans are accustomed. But they allow voters to express more nuanced preferences at the ballot box—and, more importantly, they enable roughly proportional minority representation without explicit set-asides or extensive litigation. After an election or two, voters also seem to get the hang of the new voting methods.

Is it wishful thinking that any of these reforms might soon be adopted in the United States? No, it isn’t. In recent years, voters have used the initiative process in Arizona, California, and Florida to turn over redistricting to commissions and to embrace more communitarian line-drawing criteria. Even in states without initiatives, change is in the air thanks to reform-minded governors (e.g., Andrew Cuomo in New York) and state legislatures that are tired of having their plans thrown out by the courts (e.g., the Texas State Senate). As for multi-member districts with innovative voting schemes, Illinois employed one such technique for more than a century, and courts have imposed remedies along these lines in several recent Voting Rights Act cases.

Our approach to redistricting, then, is already getting better with every passing year. And as long as we keep learning lessons from other countries, our democracy’s health will continue to benefit.

Nicholas Stephanopoulos is an academic fellow at Columbia Law School, where he specializes in election law.

Source URL: http://www.newrepublic.com//article/politics/102347/redistricting-gerrymandering-congressional-race-2012