The following is a guest post from my UCI colleague Bernie Grofman:
There are many issues of tradeoffs when considering criteria for redistricting. For example, Nick Stephanopoulos in an August 11, 2021 posting to this blog asserted: “Don’t Conflate Competitiveness and Partisan Fairness.” He notes that we can have plans with many competitive districts that exhibit partisan bias, and plans with little partisan bias that have few competitive seats. Analogously, like many election law specialists, I have been skeptical that you could reconcile concern for partisan fairness with many reformers’ insistence on making satisfaction with good government criteria the be-all and end-all of redistricting. The problem, as Jonathan Cervas and I remarked on in 2020, is that those committed to doing partisan gerrymandering need not draw tortuous districts that fragment cities and counties to achieve nefarious partisan purposes, even though that has been their habit. Instead, they can draw what we label a stealth gerrymander,[1] a term we coined. This is a plan that has egregious partisan bias but scores quite well with respect to standard good government criteria such as compactness and preserving political subunit boundaries. In our 2020 article in Political Geography we identified as a stealth gerrymander[2] a congressional plan submitted by Pennsylvania Republicans as a replacement for a plan found to be unconstitutional by the Pennsylvania State Supreme Court. We said in that article that we believe “stealth gerrymandering” will be 2020s round gerrymander’s tool of choice.
John Nagle has been a leading advocate of drawing plans that provide partisan fairness and not simply satisfaction of good government criteria.[3] since, as he and many other experts have noted, the electoral geography of many states is such that Democratic-leaning voters, especially minority voters, are highly concentrated. Thus, neutral districting in line with good government criteria tends to leave these voters packed into urban districts that are overwhelmingly Democrat, thus wasting Democratic votes and creating a pro-Republican partisan bias in an ostensibly neutral plan. In our discussion of redistricting in Pennsylvania in the Political Geography article, Cervas and I identify Philadelphia as a classic example of where such a problem may arise/be exacerbated.
In his August 2021 testimony before the Pennsylvania Legislative Reapportionment Commission, Professor Nagle proposed an intriguing idea that can be thought of a compromise between neutral and fair redistricting that also has the advantage that it doesn’t, in my view, trigger any possibility of a Shaw v. Reno violation. He suggested looking at an ensemble of neutral plans that satisfy good government criteria, eliminating those which fail to satisfy requirements to satisfy the Voting Rights Act and avoid minority vote dilution,[4] and then picking the one with the lowest partisan bias. While doing this will not be possible in all states, even when there is a court drawn plan, I see Nagle’s idea as something that definitely should be placed on the menu of options for redistricting reform.
[1] Grofman, Bernard and Jonathan R. Cervas. Pennsylvania has to draw new congressional districts, but getting rid of gerrymandering will be harder than you think. Monkey Cage, Washington Post, February 9, 2018 (on-line) https://www.washingtonpost.com/news/monkey-cage/wp/2018/02/09/now-pennsylvania-has-to-draw-new-house-districts-but-getting-rid-of-gerrymandering-is-harder-than-you-think/?utm_term=.2b64e8d8d1ad
[2] Cervas, Jonathan R., and Bernard Grofman. 2020. Tools for Identifying Partisan Gerrymandering, with an Application to Congressional Districting in Pennsylvania. Political Geography 80.
[3] See, e.g., Nagle, John F. 2019. What Criteria Should Be Used for Redistricting Reform? Election Law Journal 18 (1): 63-77.
[4]Of course, in looking to see whether a district constitutes a minority opportunity district we need to recognize that, because of the two-step nature of U.S. elections (primary and general), often a 50% CVAP will not be required for this purpose, though sometimes a more than 50% CVAP may be needed if minority turnout is particularly low or white cohesion behind non-Hispanic white candidates is exceptionally high (see Grofman, Bernard, Lisa Handley and David Lublin. 2001. Drawing effective minority districts: A conceptual framework and some empirical evidence. North Carolina Law Review, 79:1383-1430; and Lublin, David, Lisa Handley, Thomas Brunell, and Bernard Grofman. 2020. Minority Success in Non-Majority Minority Districts: Finding the ‘Sweet Spot’. Journal of Race, Ethnicity, and Politics 5 :275-298.)