Do Redistricting Commissions Avoid Partisan Gerrymanders?

• Author: Michael D. McDonald,Robin E. Best,Daniel B. Magleby,Steve B. Lem
• Published date: 01 May 2022
• Date: 01 May 2022
• DOI: 10.1177/1532673X211053216
• Subject Matter: Articles

Article

American Politics Research

2022, Vol. 50(3) 379–395

© The Author(s) 2021

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DOI: 10.1177/1532673X211053216

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Do Redistricting Commissions Avoid Partisan

Gerrymanders?

Robin E. Best

1

, Steve B. Lem

2

, Daniel B. Magleby

1

, and Michael D. McDonald

1

Abstract

As attempts to combat partisan gerrymandering transition from proposals to the Supreme Court to state-based districting

commissions, it is time to ask two questions. First, how well did commissions in the 2010 round of redistricting perform as

neutral decision makers? We answer that question with applications to each of the three independent commissions (AZ, CA,

and WA) and four other commission forms (IA, NJ, NY, and VA) in place for post-2010. We take as the neutrality criterion the

idea that a commission would produce a district plan that comports with a partisan outcome that could be expected from a set

of approximately 10,000 computer generated plans adhering to minimalist constraints of contiguity, compactness, and equal

populations. Our results indicate three of seven commissions produced suspect results that redounded to the benefit of one

party or the other: pro- Democrat in Arizona; pro-Republican in New Jersey and Virginia.

Keywords

redistricting < legislative politics, redistricting commissions, congressional elections

Introduction

Partisan gerrymanders are at odds with principles of dem-

ocratic fairness and equality. The Supreme Court ac-

knowledged this in its landmark decision in Rucho v.

Common Cause (2019), stating that “excessive partisan-

ship in districting leads to results that reasonably seem

unjust”and, quoting from the Arizona State Legislature,

“incompatible with democratic principles.”Yet, in the next

sentence, it concluded that “partisan gerrymandering claims

present political questions beyond the reach of the federal

courts”(2019, 30). If the Court were to overturn these maps,

so the majority’s argument continued, the unelected and

politically unaccountable judicial branch would be granting

itself widespread and longstanding authority over “one of

the most intensely partisan aspects of American political

life”(2019, 31). Consequently, the opinion points redistricting

reformers to state-level remedies for partisan gerrymanders.

1

State-level remedies for partisan gerrymanders can take

several forms. One option is to proceed through state courts,

which may strike down partisan gerrymanders.

2

This ap-

proach requires a plaintiff that is actually harmed via the

enacted plan vis-`

a-vis a state constitutional or legislative

statute as well as the court’s ability to detect and measure such

harm. As such, it can be costly in terms of both time and

resources. An alternative strategy has been to attempt to

prevent partisan bias from occurring in the first place. One

way to do this is through legislation. State legislatures may

attempt to mitigate partisan bias before the map is enacted

with legislation that, for instance, prohibits undue favoritism

of political parties (e.g., Delaware Title 29, § 804).

Perhaps the most notable strategy employed to avoid

partisan gerrymanders has been to establish redistricting

commissions, which are thought to avoid partisan bias by

taking map-making power away from more politically

minded state legislators. Redistricting commissions have

been particularly popular with reformers since commission-

based map-making processes are oft-touted as more impartial,

transparent, and accountable than legislative ones. Moreover,

the people in various states appear to agree; since 2015,

citizens in Colorado, Michigan, Missouri, Ohio, and Utah

adopted commissions.

Redistrictingcommissions are often viewed as a solution to

partisan gerrymandering, but how well do they actually per-

form at reducingpartisan gerrymanders?Thus far, the evidence

points in two directions. On the one hand, some existing re-

search supportsthe unbiasedness of redistricting commissions.

For instance, Iowa’s advisory commission has long been

1

Department of Political Science, Binghamton University, Binghamton, NY,

USA

2

Department of Political Science, Kutztown University of Pennsylvania,

Kutztown, PA, USA

Corresponding Author:

Steve Lem, Department of Political Science, Kutztown University of

Pennsylvania, P.O. Box 730, Kutztown, PA 19530, USA.

Email: lem@kutztown.edu

praised for its evenhandedness, and several studies have found

that commissions tend to outperform state legislatures when it

comes to competitiveness, compactness, and partisan bias

(Carson andCrespin, 2004;Edwards et al., 2017;Lindgren and

Southwell, 2013;Litton, 2012;McDonald,2004). Royden and

Li, (2017) report theuse of commissions, post-2010, produced

less biased plans than circumstances where a legislature had

control, especially with one party in sole control. Similarly,

Alex Keena and his colleagues report that comparisons of the

degree of asymmetry (partisan bias) before versus after 2011

show commission plans added less bias than plans drawn in

states when one partywas in sole control of the process (Keena

et al., 2019; see also McGann et al., 2016).

On the other hand, there are also studies that reach less op-

timistic conclusions (Cottrill, 2012;Henderson et al., 2018;

Kousseser et al., 2018;Miller and Grofman, 2013). Chen &

Cottrell, (2016) analysis of all states’congressional districting

plans found that California’s independent commission produced,

more so than any other state, bonus seats for Democrats compared

to expectations from computer-generated neutral districting. On

the topic of electoral competition, Henderson et al. (2018) found

that the districting plans created by independent commissions

insulated incumbents similarly to the districting plans created by

state legislatures. And then there is the essentially ignored ad-

visory commission plan that preceded Virginia’s legislature taking

over the process of redrawing the State’s congressional districts.

The result was an unconstitutional racial gerrymander (Page v.

Virginia State Board of Elections, 2015) with a decidedly pro-

Republican bias (Hebert & Lang, 2015). In short, commissions

probably do a good job relative to having partisan politicians in

control, especially partisans of just one stripe, but we are still left

to wonder whether they do a good job by other standards.

In this paper, we add to the growing literature on the

effects of redistricting commissions by assessing whether

commissions produce congressional district maps that are

biased in favor of one party over another by comparing them

to a neutral, map-making standard. Although it is increasingly

common to evaluate partisan bias in a given district map by

comparing it to a set of computer-generated maps (e.g. Chen

& Cottrell, 2016;Cho & Liu, 2016;Henderson et al., 2018;

Magleby & Mosesson, 2018), the literature on redistricting

commissions has compared districting lines drawn by

commissions to those drawn by state legislatures.

3

Indeed,

when we look at cross-state comparisons of commission

maps to those produced by partisan legislatures, we find that

commissions generally produce less bias. However, when

making cross-state comparisons, we have to recognize that

factors such as the geographic distribution of voters can

influence the partisan bias, which limits the usefulness of this

type of comparison. Thus, we focus our evaluation on

whether commission maps are biased when compared to a

neutral standard within their own state. Specifically, we

examine how well they comport with an outcome that could

be expected from a set of approximately 10,000 computer-

generated plans adhering to minimalist constraints of

contiguity, compactness, and equal populations. This avoids

the problems inherent in comparing states that may differ in

ways other than how their maps are produced and provides a

better point of comparison for evaluating partisan bias in

district maps produced by redistricting commissions.

Weevalua te whether congressional district maps produced

in the 2010 round of redistricting resulted in gerrymanders of

partisan exclusion and entrenchment. When using the neutral

maps as our point of comparison, our results indicate three of

seven commissions produced suspect results that redounded

to the benefit of one party or the other: pro-Democrat in

Arizona; pro-Republican in New Jersey and Virginia. While

redistricting commissions do seem to generate congressional

district maps that contain less partisan bias than those pro-

duced by state legislatures, our analyses show that com-

missions do not always eliminate partisan bias.

Commission Forms and Procedures

4

For the 2010 round of redistricting, 13 states provided for

commissions to choose a plan or to advise its legislature on

selection of congressional and state legislative districts.

5

Tab le 1

shows that commissions take four forms: independent, advisory,

politician, and backup. Four states have independent com-

missions, meaning their commission chooses the lines. Cal-

ifornia’s independent commission members are chosen in a

complex sequence, which, in form at least, has minimal input

from incumbent politicians. The other three independent

commission states—viz., Arizona, Idaho, and Washington—

invite bipartisan member selection by sitting politicians. Five

states use advisory commissions. Each is akin to legislative

leaders putting together a bipartisan conference committee of

some active and some not currently active (perhaps never

active) politicians. Two states, Hawaii and New Jersey, use

politicalcommissions, which similar to advisorycommissions,

are akin to bipartisan conference committees but in these two

states all but the lastselected member is likely to be a currently

active political actor. Two states provide for backup com-

missions whose activation depends on failure of the legislature

to adopt a plan. Connecticut’s backup commission membe r-

ship is similar to most states’advisory commissions.Indiana’s

commission, which has a 30-day period to act, has members

with substantial knowledge of the plan or plans the legislature

considered.

The legal charges given to commissions, reflected in Table

2, take as given the federal constitutional requirement of

equal populations.

6

They also uniformly specify the often

referenced “good government”criteria of contiguous and

compact districts that, so far as practicable, do not breach

town, city, or county boundaries. With near equal frequency,

commissions are told to pay attention to preservation of

communities of interest, either in those words or by reference

to historic features. Five states expressly forbid using in-

formation on incumbent (or, more generally, candidate)

residences—viz., Arizona, California, Iowa, Virginia, and

380 American Politics Research 50(3)