It is my pleasure to contribute to the dialogue on redistricting reform. I agree with Walter Olson that libertarians should care about redistricting reform. A little over a decade ago, when I held an appointment at the Brookings Institution, I collaborated with another Cato Institute scholar, John Samples, to conduct a project to promote electoral competition. In our co-edited book, The Marketplace of Democracy, we argue that like free markets democracy works best when candidates compete for votes through a free exchange of ideas. Gerrymandering violates this principle. When politicians are selecting voters, rather than voters selecting politicians, incumbents become insulated from the will of the people. Our democracy then resembles some of the world’s worst despotic regimes, where the people have little voice in who represents them.
I’ve been involved in redistricting since the late 1980s. I’ve been on the inside consulting for legislatures and commissions. I’ve been on the outside as an expert witness in litigation challenging adopted maps and working with public interest groups advocating reform. From my experience, I largely agree with Olson’s able synopsis of the available reform and legal options to curb gerrymandering. I’d like to elaborate on one reform pathway in particular that is compatible with the concept of a free market: requiring transparency and public participation.
Redistrict in Sunlight
Transparency in redistricting requires that a legislature or commission operate in sunlight. Transparency enables the public - and the courts – to determine if a district line is drawn to the benefit a political party or candidate.
Politicians prefer opaque redistricting to shield their actions from the public. Legislators do this by hiding behind legislative privilege, the deference courts give legislatures to keep their internal discussions private. Plaintiffs in litigation are hard-pressed to show the presence of illicit intent if they can only provide circumstantial evidence. All too often, defendants counter gerrymandering allegations by arguing that a suspect line was drawn to respect a “community of interest.” Without knowledge of the internal deliberations about the supposed community, there is no way for plaintiffs to verify defendants’ claims. Since the evidentiary burden lies with plaintiffs, they lose.
The good news with respect to transparency is that courts have become less willing to grant legislative privilege in redistricting cases. In recent Florida, Maryland, and Wisconsin litigation the courts have limited legislative privilege. The bad news is that politicians have dug deeper by hiring law firms that in turn hire consultants to draw redistricting plans. Politicians can then exert a different right: attorney-client privilege. Consultants may operate with weaker records-retention policies than a government and may thus destroy evidence before it can be divulged through court-imposed discovery.
Maps considered during the redistricting process are key pieces of evidence to establish the presence of gerrymandering. Redistricting is a very complex problem. Consultants typically draw many test maps before a final map is proposed. These test maps may embody different approaches to achieve the goals of those in charge of redistricting. Comparing maps drawn in earlier stages of the redistricting process to those drawn later can reveal how districts are fine-tuned to the advantage of a political party or an incumbent. A final map may have more districts that lean toward a political party than earlier versions, or an opponent’s home may be cut out of a final version of a district, whereas it was in the district in an earlier draft map. Transparency is a powerful tool to reveal such chicanery.
Public participation also assists in revealing illicit intent. When a member of the public draws a redistricting plan that conforms to federal and state requirements, they put a legislature or commission on notice that their final plan must at least meet these requirements to the same degree as the public’s map. Indeed, the Pennsylvania Supreme Court invalided the state legislative plan because a member of the public – a piano teacher – drew a plan that fared better on the state constitutional requirements of compactness and respect for local political boundaries.
Inside and Outside Strategies
There are two strategies to promote transparency and public participation in redistricting: from the inside and from the outside.
From the inside, legislatures and commissions can commit to the principles of transparency and public participation. They can hold all meetings in public, so that everyone witnesses the deliberations on how district lines are drawn. They can create web portals for the public to obtain access to the data and mapping tools needed for the public to create DIY maps and to submit these for consideration. When a legislature or commission adopts a final plan, they can state what considerations went into the drawing of each district so they cannot devise post-hoc explanations to later cover for their gerrymandering.
Some legislatures and commissions are bound by state constitutions or statutes to adhere to the principles of transparency and public participation. Where they are not, those in charge of redistricting can choose to bind themselves to these principles. It is in their best interest to do so, since courts may very well permit plaintiffs access to internal deliberations and test maps, which can prove very embarrassing and damning to defendants.
If legislatures and commissions will not impose transparency and public participation on themselves, we can do it for them. Prior to the 2010 redistricting, my colleagues – Micah Altman, at MIT, and Azavea, a Philadelphia-based GIS software company – and I created web-accessible redistricting software called DistrictBuilder that enables novices to draw legal redistricting plans. We developed the open-source DistrictBuilder software with support from the Sloan Foundation, the Joyce Foundation, the Judy Ford Wason Center for Public Policy at Christopher Newport University, and Amazon Corporation. We are not the only such effort; another notable application is Dave’s Redistricting App. Commercial vendors have also entered this sphere.
Advocacy groups have hosted redistricting competitions and other public mapping efforts across the country. An important but simple lesson from these events was that the public is capable of drawing legal redistricting plans. High school students, retirees, and everyone in between successfully created legal maps. Editorial boards used these alternative plans as yardsticks to measure plans adopted by legislatures and commissions to show that there were better ways to do redistricting. Legislators introduced some of these public plans as legislative bills, although no state legislature seriously considered them. However, when New York and Virginia courts invalidated districts, court-appointed special masters did draw remedial maps with ideas found in the public’s maps.
Our most notable success showed how the public can become full partners in the redistricting process through their participation. We deployed our software to draw Minneapolis city council districts. A newly formed citizen redistricting commission found their single copy of a commercial desktop mapping application inconvenient to use, so they turned to our web-accessible application to draw districts from their homes and offices. So, too, did a local Latino community group and a local Somali community group. These groups expressed their representational needs by drawing districts for their communities. The commissioners incorporated these districts into their final map, using DistrictBuilder’s sharing features. In the 2012 election the first Latino and Somali members were elected to the city council.
The Minneapolis experience also shows that there is a much cheaper way to do redistricting. Commercial vendors make millions of dollars by selling their software again and again to each state and local government that does redistricting, but only one application is really needed for an entire state. DistrictBuilder simultaneously supported in Minnesota congressional, state legislative, and local Minneapolis redistricting.
We are preparing for the next redistricting. We are collaborating with others to collect election data so we can evaluate the political nature of alternative redistricting plans. We are upgrading the DistrictBuilder software to take advantage of computing advancements. We hope to create versions of our software loaded with the necessary data in all fifty states plus the District of Columbia, so that anyone can perform DIY redistricting on the computing cloud. You can follow our efforts on www.publicmapping.org and can obtain the open-source DistrictBuilder code at www.districtbuilder.org.