Idealism vs. Realism: Alternative Paths to Redistricting Reform in an Anticompetitive World

March 20, 2017

By: Ben Williams

In my previous post for this blog, I compared the competitiveness of congressional races in various states which have enacted redistricting reform to one another—and to the nation as a whole—to discover if Iowa’s acclaimed redistricting reform lives up to the hype surrounding it. Since that post, the 2016 electoral map has changed significantly: several news outlets, such as poll aggregator RealClearPolitics, liberal news outlet Vox, and Nate Silver’s FiveThirtyEight are all suggested that—while unlikely—there was  at least a conceivable possibility that the Republican Party could lose the House of Representatives. The fact that the House would only be in play in a Democratic wave election speaks volumes about how successful the Republicans’ REDMAP project was in 2011. But this is a blog about election law, not politics.  The 2016 House races brought up several important questions: (1) Were House races truly competitive this year? (2) How did the states which have enacted redistricting reform compare to the national average? And (3) Which method of redistricting reform should reform advocates look to emulate in the non-reformed states?

According to the most recent analysis of Larry Sabato’s Crystal Ball, Democrats had little chance of regaining a House majority because they only had a generic lead of approximately five points—to be in a position of winning a majority, they would have had to win the overall House election by TEN percentage points. His analysis said only 16 of 435 voting House seats this election were toss-ups. That amounts to a whopping 3.6% of all house races this year. Ballotpedia was only marginally more optimistic as of this writing, with 23 of 435 seats competitive for a total of 5.3%. But as was discovered in my prior blog post, in these dismal numbers are signs of hope for redistricting reform advocates. Prior to the election, Cook Political Report held that Iowa’s First Congressional District was a toss-up in 2016, meaning 1 in 4 (or 25%) of Iowa’s congressional seats were competitive. That means Iowa’s congressional races were up to seven times more competitive than the national average, a ringing endorsement for redistricting reform. Additionally, three of the competitive seats were in Florida. Florida was somewhat of a special case because of the court-mandated redrawing of its districts following years of litigation surrounding its post-2010 census maps. While a long post-mortem analysis of the election is necessary (and beyond the scope of a single blog post) to control for the changes in the electorate between this election and the previous ones, it remains likely that the new maps were more competitive than the previous ones.

This change reflects two different paths towards the same end. In Iowa, as I previously discussed, there is widespread acceptance of map drawing by the state’s nonpartisan Legislative Services Agency. But Iowa’s situation is unique for many reasons: it is almost 92% white, and has a relatively low number of districts, dropping from five to four in the most recent round of redistricting. Meanwhile, Florida is much more diverse, with a white non-Hispanic population of only 55.3%, and significant Hispanic (24.5%) and African-American (16.8%) populations divided among its 27 congressional districts. To comply with the mandates of the Equal Protection Clause and the Voting Rights Act, Florida is limited in how much it can change its districts from cycle to cycle; importantly, though, this does not mean that the districts cannot be competitive. Knowing this, Florida voters passed via referendum a constitutional amendment in 2010 known as the Fair Districts Amendments. Unlike Iowa’s idealistic plan, Florida’s plan is firmly rooted in the hyper partisan world in which we live. Rather than asking the state’s Democrats and Republicans to acquiesce to a plan in which they give up redistricting to an independent commission, the Florida plan simply bans the use of political data during redistricting. This attempt to banish partisanship from the process creates a unique legal remedy: if voters believe their districts are drawn with partisan intent, they can sue the state to have the districts struck down as a violation of the state constitution. The courts can then mandate new maps be drawn to remedy the error. This is what happened in the years following the 2011 redistricting process.

So which path is better? While many would agree that Iowa’s system of accepting and supporting non-partisan maps drawn by third parties is better than Florida’s litigation-heavy model, Iowa may be a unique case. Its racial homogeny, thirty-plus year history with redistricting reform, and relatively middle-of-the-road politics make it uniquely situated to adopt such a conciliatory system. Florida, meanwhile, more closely resembles the rest of the country: rapidly growing, politically polarized, and possessing significant minority populations. With race and politics increasingly correlated, Iowa-style redistricting reforms would be perhaps the most difficult reform to enact. As discussed, a paltry number of House races are competitive this year. Reformers should not seize on idealism and dismiss Florida-style redistricting reform as not going far enough. While its model is neither ideal nor an attractive process, it has made Florida’s congressional elections more competitive than the national average. In a world where only 3-5% of House races are competitive, any reform is better than the status quo. If Florida-style reform is possible, reform advocates should not pass up the opportunity to institute it.