Tam Cho: For Partisan Gerrymandering, an Ounce of Prevention is Worth a Pound of Cure (Rucho Symposium)

The following is a guest post from Wendy Tam Cho, part of the symposium on Partisan Gerrymandering after Rucho:

We have been focused for some time on the Supreme Court’s role in regulating partisan gerrymandering.  Now that we know the Supreme Court will not intervene after a map is drawn, our focus must switch to preventing gerrymanders in the first place.  I have argued that the means of such prevention lies not with the courts but with technological advances.

Technology for redistricting has primarily fueled the entrenchment of power.  This idea was not lost on Justice Kagan, who commented in Gill that the 2010 redistricting cycle “produced some of the worst partisan gerrymanders on record.”  Her fear was that “the technology will only get better, so the 2020 cycle will only get worse.”  Clearly, over the last couple of decades, our ability to collect and analyze data has improved dramatically, leading to software that enables map drawers to synthesize many information sources to meticulously construct electoral maps to fulfill particular goals.

Redistricting illustrates Kranzberg’s first law well: “Technology is neither good nor bad; nor is it neutral.”  Post-Rucho, we must be mindful that the information landscape is continually and rapidly evolving, and, more importantly, that the effect is malleable.  Moving forward, an essential task must be to harness the power of technology to ensure democracy.  The real promise of technology is to augment human capabilities to engage in productive, inclusive and contemplative decision-making about how society is governed.

Consider, for instance, independent redistricting commissions (IRCs) that have been touted by the reform community as well as the Justices.  IRCs are comprised of well-intentioned individuals who are given the monumental task of producing an electoral map that ensures political fairness—a concept that courts and political theorists have been grappling with for decades without clear resolution.  While IRCs may solve the conflict of interest problem, expertise is a concern.

Indeed, because our collective voice is composed of the individual voices of many distinct and diverse groups, political fairness is a complex phenomenon.  It requires compromise and the balancing of competing interests so that members of all groups are represented.  We are more than just Republicans and Democrats.  Political fairness is also hopelessly multidimensional so that even after competing interests are satisfactorily balanced on one dimension, consideration of other dimensions sends us back to the drawing board.

The work of independent commissions is enabled not by their good intentions, but by the quality of information at their disposal.  Their productivity, inclusiveness, and the value of their deliberations are firmly rooted in the ability to synthesize and analyze large stores of information.

Technology can identify and supply information that has been missing to re-orient and restructure the discussion as maps are being contemplated.  This is where intelligent computational algorithms play a part.  I have been working to create advances that explore and consider these wide and varied interests to identify electoral maps that are broadly acceptable.  This is no simple task.  The possibilities are legion, and none free of tradeoffs for some segment of society.  The data and algorithmic advances are non-trivial, but both are unquestionably on the rise.

To be sure, political obstacles remain.  IRCs are not a panacea, and, they do not exist in most states.  Moreover, in a number of states, one political party dominates both the legislature and the courts.  In these states, if politics forges ahead as usual, data and algorithmic advances can help shine a light on just how rotten the maps produced from them are.  The public knowledge of which will help filter the tendency toward extremes.  A thief, after all, is less likely to steal in well-illuminated places that are under many watchful eyes.

The information age has indisputably altered society in many ways, and it will likewise transform redistricting and governance.  Politics will not stop or even stall the information age.

The Supreme Court surely had a role to play in partisan gerrymandering.  It is a role that they shirked, but regardless of their decision, redistricting has and will change.  These are not your grandfather’s gerrymanders, but the tech savvy grandchildren are also now in play. 

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