Where Things Stand Right Now

On the national level, a lot has happened related to redistricting. In South Carolina, there has been significant activity, but there is still a long road ahead. It is possible that future national developments will have an impact on the South Carolina effort, but it is too soon to tell.

South Carolina Legislature

The League of Women Voters of South Carolina (LWVSC) supports H.3054 in the South Carolina House, which will create an independent commission made up of members appointed by the legislature and the governor, and define standards for the commission to use to create fair proposed maps to send to the legislature for approval. This bill is in the Judiciary Committee. While H.3054 and its Senate companion are not the only bills related to redistricting, they are the ones favored by LWVSC, and they have bipartisan sponsorship.

South Carolina Action

Over the past two years, the League has actively promoted redistricting reform in the state. The League has developed materials for use in public presentations, and in 2017, the League held training sessions for League advocates in Greenville and Columbia. Redistricting programs have been presented to local Leagues in Charleston, Clemson, Greenville, Spartanburg, Aiken, and elsewhere. League advocates have also presented to other organizations, including the Forum Club, Sociology Club, Math Club, and a sociology class at Clemson, and the Progressive Women of Anderson County.

In addition, at least two open public fora have been held so far this year, both well attended and lively:

  • January 22, 2019, Richland County Library, Columbia. Does My Vote Even Count: A Forum on Election Reform, panel discussion with Reps. Beth Bernstein, Gary Clary, and Kirkman Finlay, Senator Mia McLeod, and experts Duncan Buell and John Ruoff, on voting machines, voting rights, redistricting, and related topics.
  • March 12, 2019, Greenville County Library, Greenville, Beyond the Basics: The Math of Gerrymandering, presentation by Dr. Anne Catlla, Wofford University.

A fall 2018 Winthrop University poll showed that nearly 70% of South Carolina voters support the idea of independently drawn districts. This is similar to levels of support shown across the country. Some preliminary analyses by news analysis sites, such as FiveThirtyEight.com’s Redistricting Project, suggest that South Carolina’s Congressional district map is highly gerrymandered. I and a team of students are engaged in a more detailed analysis of our state Congressional and legislative maps.

LWVSC’s action priority is to keep the issue in the public eye, continue to inform our citizens, and press legislators to support the bills. While LWVSC has limited resources for a publicity campaign, please watch for information about mobilization from the League.

National Update

In 2017–2018, the Supreme Court heard political gerrymandering cases from North Carolina, Wisconsin, and Maryland, and remanded them back to lower courts. This year, the North Carolina and Maryland cases returned to the Court; oral arguments were heard March 26 with a ruling expected in June.

Two recent research reports suggest that gerrymandering has broad electoral and social impacts; for example, as we experience in SC, uncompetitive districts lead to uncontested elections and lack of choice for voters. And independent analyses show that gerrymandering had a significant effect on the outcome of 2018 Congressional races and state legislative races in several states.

Voter initiatives have been used successfully in several states to institute redistricting reforms. Unfortunately, that option is not available to voters in South Carolina. The US House passed HR.1, a broad voting rights and election reform bill that includes a provision for requiring independent redistricting commissions in every state. The bill is not likely to be taken up in the Senate.

SCOTUS Oral Arguments, March 26, 2019

On March 26, the Supreme Court heard oral arguments in two redistricting cases: Benisek v. Lamone from Maryland and the consolidated cases Rucho v. Common Cause and League of Women Voters of North Carolina. In the former case, individual Republican voters have challenged the drawing of Maryland’s Sixth District (in the western part of the state). In the latter case, the challenge is to the map implemented by the Republican-controlled legislature in response to a racial gerrymander case. This is the first time since the retirement of Justice Kennedy and the installation of Justice Kavanaugh that the court has heard arguments regarding partisan redistricting.

(Descriptions in this post are drawn from reporting done at NPR (here and here) and the New York Times (here, here, and here). The transcripts of the hearings are here and here.)

The most interesting moments belong to Justice Kavanaugh, who doesn’t have a record of interactions from previous hearings, but who was quite engaged here. “Extreme partisan gerrymandering is a real problem for our democracy,” he said. “I’m not going to dispute that.” He also wondered whether other remedies—state courts, Congressional action, or state ballot initiatives—could solve the problem without Supreme Court action. “Have we really reached the moment, even though it would be a big lift for this court to get involved, where the other actors can’t do it?” he asked.The main concern of the justices was the same in this hearing as it has been throughout the history of gerrymandering cases: Is the question of how districts are drawn (or indeed partisan actions by elected officials in general) justiciable? That is, is it a question that the courts can or should decide? On the negative side, justices cite the Constitution’s stipulation that state legislatures should determine the “times, places, and manner” of elections, subject to supervision by Congress. In addition, some justices expressed concern that by intervening in partisan matters, the courts risked their reputation for being nonpartisan. Hence the search for an impartial standard by which to determine whether partisan gerrymandering is out of bounds. Further, Justice Gorsuch pointed to voter initiatives in some states that have mandated independent commissions as providing an alternative remedy.

On the other side, the argument is that partisan gerrymandering violates the First Amendment guarantees of freedom of speech and association and the Fourteenth Amendment guarantee of equal protection by discriminating against voters in the minority party. Not all states allow voter initiatives (South Carolina does not). And while Congress could act (HR-1 in the current session has passed the House and requires independent commissions), it has not yet and it is unlikely that it will soon.

One interesting aspect of the arguments here is that conservative justices expressed concern about the effect on Republicans of the Maryland map. It seems that hearing one case from each side of the political divide might have opened some justices’ minds to arguments from the other side.

How (Not) to Tell You’ve Been Gerrymandered (Part I of Several)

In a previous post, we explained how sophisticated map analysis can support drawing district lines that result in party representation in the legislature that is dramatically different from the distribution of support for a party in the population. Over several upcoming posts, we will describe the analyses that are being used to identify biased district maps and to try to persuade courts of bias. The analyses are somewhat mathematical but largely not beyond the comprehension of the general reader with modest effort. In this outing, we provide some background on the court decisions that set the parameters for these analyses.

What does the Constitution of the United States of America require regarding district maps? First, that a census be conducted every ten years and that representatives be apportioned to the states according to their populations, except that every state gets at least one representative. The Supreme Court of the United States has ruled that all districts that elect representatives to any office except the United States Senate must have equal-sized populations. This is the principle known as “one person, one vote.”

Section 4 of the Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

In the absence of Federal legislation to thwart partisan gerrymandering, some politicians and strategists argue that the power to draw maps rightfully belongs to the legislature and that there is nothing wrong with the majority party controlling the outcome of that process. Opponents of partisan gerrymandering argue that, as a consequence of the First Amendment’s guarantee of freedom of assembly and the Fourteenth Amendment’s guarantee of equal protection of the laws, that maps with excessive partisan bias should be considered unconstitutional. The question has come before the United States Supreme Court several times, but has not been ruled on decisively.

In the 2004 case, Vieth v. Jubelirer, the Court considered whether the question of partisan gerrymandering was even justiciable. The Court split four-four on the question. Justice Kennedy sided with the conservatives in declining to intervene in the case, but whereas the four conservative justices argued that partisan questions could not be justiciable, Kennedy wrote a separate opinion arguing that if appropriate standards could be developed, partisan gerrymandering could be taken up in the future. It is Kennedy’s opinion that has spurred efforts to develop the analyses that are being used in current cases.

One simple idea for a test is proportionality, the idea that the number of seats a party holds should approximately reflect the party’s support in the general population. Indeed, stories in the press often note violations of proportionality as an indicator of bias and it can serve as a red flag, prompting further analysis. But proportionality has several problems that make it unsuitable as a standard for evaluating partisan bias.

An important mathematical issue is that when voters’ party preferences are not extreme, the seat balance is sensitive to small differences in party preference. In particular, on average, a specified level of voter preference for the majority party tends to translate to an even higher percentage of seats. In addition, courts are reluctant to consider proportionality as a criterion, in part because it is difficult to establish standing to sue. In the U.S. legal system, standing is achieved by demonstrating that one has suffered direct harm, which is difficult to argue based solely on lack of proportionality.

In future posts, we will describe the methods that are currently being used in gerrymandering court cases and in support of legislative initiatives.

How to Gerrymander!

Imagine you are a political party. At present, you control the legislature and executive of your state government and you have the power to draw the maps that divide the state into Congressional and legislative districts. You want to ensure that you retain control of the legislature in future elections, even if the voting public shifts away from you. Can you do that with district maps?

Or you are a group of self-interested officials who can make their own individual lives easier by manipulating district maps. Remove the potential well-funded and popular competitor for your seat. Grab a few more likely voters and give away a neighborhood that you lost last time. Keep your biggest donor in your district. Can you do that with district maps?

Yes, that’s precisely what gerrymandering is. With publicly available information, one can draw maps that carefully allocate likely voters in your party and likely voters in the opposition party to districts in order to ensure that your party is overrepresented. The objective is to make the opposing party waste as many votes as possible and make your party waste as few as possible. We think of a vote as “wasted” if it goes to a losing candidate or if it goes to a winning candidate beyond the margin necessary to win. The two techniques for creating wasted votes are “cracking” and “packing.”

Cracking means to split your opponent’s votes across districts so that they don’t constitute a majority in any of them. When cracking, you want your opponent’s votes to be as large a minority as you can afford, although you want to leave a bit of a buffer to account for moderate shifts in voter preference. Cracking maximizes the number of wasted opposition votes that go to losers and minimizes the number of your wasted votes that go to winners.

Packing means to concentrate your opponent’s votes into a few districts where they constitute an overwhelming majority. You don’t mind if the opposition wins some seats, as long as they don’t win enough to threaten control. Packing maximizes the number of wasted opposition votes that go to winners and minimizes the number of your wasted votes that go to losers.

Preserving partisan power isn’t the only motivation for gerrymandering. Other forms of gerrymandering are employed to protect incumbents. For example, a district might be drawn to exclude a popular potential primary opponent. Before passage of the voting rights act in 1965, districts were gerrymandered to reduce the influence of minorities, particularly African-Americans. The practice persists today and since a Supreme Court decision in 2013, legal action has been required to remedy racial gerrymandering when it occurs.

We often think of gerrymandered districts as having strange-looking maps, and indeed, that is often the result. But districts with strange shapes are not necessarily gerrymandered and gerrymandered districts need not have strange shapes. Odd shapes are sometimes necessary to preserve the voting power of communities of interest or minority communities. And with modern mapping technology and data, it is possible to draw perfectly reasonably shaped districts with strong partisan biases.

Redistricting Criteria in South Carolina

We have discussed the issue of who draws legislative district boundaries during the redistricting process. Do voters choose their representatives, or do representatives choose their voters? The criteria for drawing boundaries may be an even more important issue than who draws those boundaries in answering this question in favor of voters.

There are some requirements that must be met by all states when redrawing district boundaries. All must comply with constitutional equal population requirements. Districts for the houses of the General Assembly and the US House of Representatives must be approximately equal in population. Also, all states must abide by the requirements of Section 2 of the Voting Rights Act (VRA), although South Carolina and other states are no longer subject to preclearance of voting changes under Section 5 of the VRA. The VRA is an extremely important protection that allows minorities to elect representation of their choice.

Court cases over the years have established more specific guidelines for how these universal requirements are implemented. Within those boundaries, each house of the SC General Assembly has created its own specific criteria.  In 2011 the South Carolina Senate issued its criteria, which are available at http://redistricting.scsenate.gov/Documents/RedistrictingGuidelinesAdopted041311.pdf. The House also issued criteria, available at http://redistricting.schouse.gov/6334-1500-2011-Redistricting-Guidelines-(A0404871).pdf. The House criteria of 2011, interestingly, include “Incumbent Protection” as a specific requirement.

The League of Women Voters believes that criteria should be enacted in law, rather than established through temporary guidelines. And, we believe that criteria should prohibit protecting either incumbent individuals or political parties. How would we achieve this?

The criteria embedded in our preferred redistricting legislation (H.3054 and S.230) seek to protect the interests of all citizens and do not allow protection of incumbents or parties:

Apportionment redistricting plans for the Senate, House of Representatives, and United States House of Representatives districts shall comply with the United States Constitution and the federal Voting Rights Act, 42 U.S.C. 1971, et seq. Redistricting plans must be comprised of districts that are geographically contiguous and, to the greatest extent possible, geographically compact, while maintaining and respecting the geographic integrity of any city, county, city and county, neighborhood, or communities of interest including, but not limited to, rural communities, coastal communities, or separation by geographic features such as lakes, major rivers, national forest, or mountains. Communities of interest may not be interpreted to include relationships with political parties, incumbency, or political candidates. The place of residence of an incumbent or a political candidate may not be considered in the apportionment of districts, nor shall districts be apportioned for the purpose of favoring or discriminating against an incumbent, political candidate, or political party. In drawing districts, the commission shall seek to achieve substantial population equality among districts with deviations for state House of Representatives and Senate districts allowable to achieve compliance with nondiscriminatory criteria.

There is little about the redistricting process that is simple. What is a “community of interest?” What does it mean to be geographically compact? To some extent, answers to these questions have been provided by a long series of federal court cases but there is still considerable room for interpretation. There probably always will be. However, we believe that the provisions of H.3054 and S.230 would establish a sound foundation for the redistricting process in South Carolina and should be adopted by the General Assembly to give citizens confidence that their votes matter, that they are not simply participating in a process in which the outcome has already been determined by representatives choosing their voters.

H. 3054: A Path to Empowering Voters and Decreasing Political Polarization

Citizens across the political spectrum agree that reforming our redistricting process is essential if we are to minimize the polarization that is damaging our democracy and let voters know that their votes matter. There are differences about how to get there, but the goal is clear – a government in which voters are empowered.

In the past, our legislators have relied on a state constitutional provision that authorizes them to redraw legislative districts, and they have created policies in each house of the General Assembly to govern how this is done. The League of Women Voters of South Carolina strongly supports H. 3054, a bill to reform this process and put the emphasis back on the interests of voters. H. 3054 has been filed by a bipartisan group of South Carolina House members: Gary Clary, Jason Elliott, William Cogswell, Mandy Powers Norrell, Chris Wooten, Ivory Thigpen, Seth Rose and Beth Bernstein. This bill would do two important things: establish a South Carolina Redistricting Commission to draw district lines and define the criteria that would be used to draw those lines.

The members of the Commission would be selected as follows:

 (1)    two members must be appointed by the Governor, no more than one of whom are members of the appointing Governor’s political party;

(2)    two members must be selected by the Senate, one upon the recommendation of the members of the majority political party in the Senate and one upon the recommendation of the members of the largest minority political party in the Senate;

(3)    two members must be selected by the House of Representatives, one upon the recommendation of the members of the majority political party in the House of Representatives and one upon the recommendation of the members of the largest minority political party in the House of Representatives;

(4)    the members of the South Carolina Redistricting Commission appointed pursuant to items (1) through (3) shall at their first meeting by majority vote elect a seventh member who shall serve as chair. If the members are unable to elect a chair, after ten ballots, or in any case if no chair has been elected within ten days after the organizational meeting, the Governor shall appoint the chair.

What would this Commission actually do? “The commission shall establish its own policies and procedures as necessary . . .  and the commission shall adopt such district boundaries as are approved by a simple majority of the members of the commission.” It would then be required to hold at least four public meetings across South Carolina to review their draft maps, before developing a final version to be submitted to the General Assembly for a vote.

This process does not take the General Assembly out of the process of redistricting. Why? First, we have a very pragmatic concern. We frankly hope that this approach will find legislative support because legislators will understand that if they have legitimate concerns, they will have an opportunity to address them. However, our choice of this approach is not based only on a legislative strategy.

The League of Women Voters has national experience with a wide range of methods of redistricting. We have listened to colleagues in other states who tell us that every system will involve some level of legislative influence, whether explicit or behind the scenes. We have agreed with those colleagues that acknowledging this allows us to require a very high level of transparency from those legislators regarding any influence they have on a final outcome. H. 3054 provides significant public input into the Commission maps and any changes made by legislators would have to be made and justified very publicly. This contrasts markedly with previous redistricting processes in which legislators did as they pleased and as one legislative staffer told us, “no one was really paying attention.”

We are also aware of studies showing that independent commissions by themselves do not necessarily produce outcomes that are better than maps drawn by legislators. To actually make a difference, clear voter-first criteria must be defined and enforced. We will discuss these in our next blog post.

Stay tuned, as we try to make South Carolina’s 2020 redistricting process one that serves the interests of our state’s voters!

The 2020 Census–Foundation of Redistricting, and So Much More

Reapportionment (the allocation of Congressional seats based on population) and redistricting (the redrawing of boundaries for the U. S. House and state House and Senate districts) depend on an accurate, timely and complete census. Our every-decade population count also establishes guidelines for allocation of federal funds for a wide range of programs. However, there are major hurdles facing the 2020 census.

Funding is always an issue. The most immediate threat is the government shutdown. The Census Bureau is closed during the shutdown, but carryover funding from 2018 is continuing preparations for 2020. That money will eventually run out. The cost of the 2020 census is estimated at $15.6 billion, and a prolonged funding stalemate could be disastrous.

Another threat is the proposal that the census include a question on citizenship. The census is supposed to be a count of total population, not citizens, and there is concern that the question could discourage responses, even from legally documented workers. This issue is going before the U. S. Supreme Court, with oral arguments scheduled for February.

Cybersecurity threats are another serious concern. Last year the Census Bureau identified close to 3,100 security weaknesses in the IT systems for the census. Fixing these is a big job.

Will there be enough workers? For the 2010 census the government hired about 635,000 temporary workers but the low unemployment rate is making hiring difficult in 2019.

Finally, there is concern that the census will undercount communities of color and other hard-to-count populations. This concern has been heightened because the Justice Department has raised the possibility of accessing census data to force release of confidential census responses earlier than the 72 years after collection required by law.

The census is central. The American people must support efforts to ensure that it is accurate, timely, and that there are no exceptions to the well-justified confidentiality of responses. We all depend on it!