“Redistricting Reform and the 2018 Elections”

The Harvard Law Review blog is running a Symposium on legal issues related to the 2018 election.  Here’s my contribution, which analyzes the different measures on the ballot to change the redistricting process in Utah, Missouri, Michigan, and Colorado.  An excerpt:

Underlying the entire issue of redistricting is the question of what constitutes a fair map.  The issue is not just whether voters will endorse independent redistricting commissions, but what substantive criteria those commissions will be instructed to use.  This is not as straightforward a question as many people intuitively think.  As a conceptual matter, there are two fundamentally different approaches to answering that question, and it is worth noticing the distinct approaches these various ballot measures embrace.

The first approach is what I have called a process-oriented one.  Redistricters would be instructed to take a set of criteria into account that reflect appropriate democratic values for designing districts, but that do not include partisan political considerations.  Thus, in “partisan-blind” redistricting, districts would be designed to meet standards like equal population; compliance with the Voting Rights Act; keeping pre-existing political units (like towns, cities, and counties) together, to the extent possible; respecting communities of interest; and keeping districts reasonable compact and contiguous.  Under this approach, a “fair” map would reflect these criteria, and whatever partisan political consequences resulted from such a process would not affect the fairness of the plan.

The second approach is instead focused on exactly those consequences:  it is an outcome-oriented approach that would seek to ensure a map is “fair” in the sense that the likely outcome of elections under the plan would be that each political party would end up with roughly the same percentage of seats as the percentage of votes it received.  Under this approach, many of the values listed above would be of secondary importance to the primary goal of seeking to design a map that would generate partisan outcomes that match each party’s share of the overall statewide vote.   The “process-oriented” and “outcome oriented” approaches define two poles of the spectrum; one can imagine approaches that try to merge these approaches, though doing so risks becoming a muddle that leaves redistricters with a great deal of discretion unless the proper tradeoffs between these different objectives are identified with precision.  But having these two distinct conceptual frameworks in mind is helpful in evaluating the different ballot initiatives. . . .

No other country with single-member election districts like ours leaves the power to draw these districts in the hands of the most politically self-interested actors, the politicians whose power and seats will be affected. . . . But shifting to commissions cannot avoid the fact that substantive choices must still be made about how we ought to define fair maps and what criteria commissions, or any other redistricting body, ought to follow in order to design fair maps.

The proposals on the ballot in these four states agree that redistricting should be taken out of the hands of self-interested state legislatures. But they show that on the deeper question – what makes a map fair – there remain differences of view.

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