The following is a guest post from Rick Pildes, part of the symposium on Partisan Gerrymandering after Rucho:

Now that the Supreme Court’s decision means that limits on partisan gerrymandering will have to come from venues such as Independent Redistricting Commissions (IRC) created by voter initiatives in states that permit such initiatives, it is worth keeping in mind that merely moving districting to IRCs does not resolve the underlying substantive questions that must be confronted about what makes a districting system “fair” or appropriate.  Indeed, in the four states that this fall adopted ballot-measures to create IRCs or other non-partisan processes to draw districts, we actually see four different approaches.

In light of Rucho, it’s worth paying more attention to the specific differences between how voter initiatives define the constraints and obligations of an IRC.  I’ll summarize here the differences just in the four measures approved this fall.  Conceptually, the biggest difference is between what I call more “process-oriented” approaches and more “outcome-oriented” ones.   The basic difference is between a focus on “fair criteria” that do not define those in terms of some measure of seats/votes outcomes and ones that do.  Here is a brief description of the differences in recent voter initiatives, from a piece I did on this for the Harvard Law Review blog:

The Missouri measure, for example, which affects only state (not congressional) legislative districts, endorses the most extreme outcome-oriented approach of any statute or ballot measure I’ve seen. This measure provides standards that a non-partisan demographer, who designs the maps in the first instance, is required to use. After specifying that maps should be based on equal population, comply with federal law, and meet certain racial fairness requirements, the initiative then states that the demographer is to do the following:

Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. Partisan fairness means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency. Competitiveness means that parties’ legislative representation shall be substantially and similarly responsive to shifts in the electorate’s preferences. . . .

In any plan of apportionment and map of the proposed districts submitted to the respective apportionment commission, the non-partisan state demographer shall ensure the difference between the two parties’ total wasted votes, divided by the total votes cast for the two parties, is as close to zero as practicable.

The initiative, which proceeds to enact a type of efficiency gap test, requires that these outcome-oriented objectives take priority over making sure that districts are contiguous, compact, or keep towns and other units together (I don’t actually believe a demographer would in fact ignore contiguity for the purposes of ensuring fair partisan outcomes, but that’s how the initiative reads.)

Meanwhile, the Utah initiative appears to take a process-oriented approach, or perhaps to try to merge process and outcome approaches, but in a way likely to foster confusion. Thus, the commission is told that it must meet, to the greatest extent practical and in a specific order of priority, seven process-oriented criteria, which include the usual factors, along with ones such as “following natural and geographic features, boundaries, and barriers.” But then, after this specific list of rank-ordered priorities that must be followed to the greatest extent practical, the next provision tells the commission not to “divide districts in a manner that purposefully or unduly favors or disfavors … any political party.” Utah’s commission would be only advisory. The legislature can reject the commission’s map and enact its own plan. However, it would be bound by the same criteria as the commission and would have to issue a report explaining why its plan did better at satisfying these criteria.

To tell the commission to follow process-based criteria and not engage in purposeful partisan gerrymandering is one thing. Both of those objectives can be accomplished together. But what does it mean to tell it both to follow these criteria and also not to “unduly favor or disfavor” a political party? The “unduly favor” standard sounds like an effects-based or outcomes-based measure that applies even if the commission acts without any partisan intent. So if the commission first follows all the process-based criteria, but the map that results would then favor one party or the other – in terms of how many seats that party gets compared to its statewide vote – what is the commission supposed to do? Sacrifice some of the process criteria? Or not pay attention to the outcomes after all? If the process-oriented criteria are supposed to have priority, how much room does that leave to adjust the map to avoid “unduly” favoring or disfavoring a political party?

Michigan’s initiative, which applies to both Congress and state districts, is similar to Utah’s in trying to blend process and outcome criteria, but with a different set of priorities. Thus, Michigan’s proposal first requires compliance with federal law, contiguity, and then respect for communities of interest. But the next requirement, in order of priority, is that the “districts shall not provide a disproportionate advantage to any political party,” using “accepted measures of partisan fairness.” Only after that requirement is met is the commission then required to reflect pre-existing boundaries of towns, cities, and counties and to be reasonably compact.

Because the commission’s plans cannot provide a disproportionate advantage to a party, this requirement goes beyond ensuring that the commission not act with partisan intent. The effects of its plan must still not advantage any party. In addition, since this requirement is given priority over drawing compact districts or keeping towns and the like together, the Michigan initiative might be read to require that districters use bizarrely shaped districts and break up towns, cities, and counties whenever necessary to ensure that the map produces fair partisan outcomes, in the sense that a party’s proportion of seats corresponds to its proportion of statewide votes.

Finally, Colorado‘s dual initiatives (one for Congress and one for state districts), take another approach altogether. They also try to blend process and outcome approaches, but the outcomes that the commission is required to pursue are competitive elections, not partisan fairness. By their terms, these initiatives start with the standard requirements of population equality and compliance with federal law, then require preservation of communities of interest and compact districts. After that, the initiatives require that map drawers, “to the extent possible, maximize the number of politically competitive districts.”

There can be a significant difference between maximizing competitiveness and maximizing “fair” partisan outcomes. A plan in which all districts are designed to be 53% Party A voters and 47% Party B voters (based on past voting patterns) would be one in which all districts are competitive. But it might be that Party A would then win all the seats. Depending on precisely how “competitiveness” is interpreted, then, the Colorado commission might operate with a very different sense of “fair districts” than that in Missouri or Michigan or Utah.

To the extent reform shifts to IRCs, this illustrates the kind of choices that will have to be made in instructing the IRCs about exactly what they are supposed to do.