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Former California Governor Arnold Schwarzenegger speaks outside the U.S. Supreme Court building in Washington, D.C., during a rally coinciding with hearings on redistricting cases in Maryland and North Carolina in March 2019. (Getty Images)

The Top 3 Redistricting Pitfalls—And How to Avoid Them

By Lisa Ryckman | Aug. 2, 2021 | State Legislatures News | Print

When it comes to redistricting, experts have some fundamental advice:

Get it done—but first, get it right.

That means avoiding a minefield of redistricting pitfalls, including official map drafting errors, poor organization of the various map iterations and overreliance on what was done a decade ago.

But by far the biggest challenges redistricters face are the three listed below.

Pitfall No. 1: Mishandling Racial Demographics

“If you don’t do it right, if you mishandle that job, you are susceptible to 14th Amendment challenges,” Michelle Davis, a senior policy analyst for the state of Maryland, told a packed meeting room at NCSL’s July redistricting seminar in Salt Lake City.

Fumbling racial demographics can lead straight into a courtroom, but that can be avoided, said Sam Hirsch, partner at Jenner & Block LLP in Washington, D.C.

“The stuff we hear about race is awfully confusing. At some point, you’re just going to tear your hair out,” he said. “I’m here with some good news. The law is not actually that crazy, it’s not arbitrary. Actually, when you dig down it’s really a practical, political reality.”

I’m here with some good news. The law is not actually that crazy, it’s not arbitrary. Actually, when you dig down it’s really a practical, political reality. —Sam Hirsch, partner at Jenner & Block LLP in Washington, D.C.

So what happens if a candidate preferred by minority voters is also preferred by non-minority voters? She or he wins. And what does the Voting Rights Act require of redistricters?

“Absolutely nothing,” Hirsch said. “If you’re in a place where that’s the situation on the ground, that’s how your politics work, you’re in good shape. Unfortunately, most of the United States doesn’t work that way.”

What if you’re in a place where the minority voters prefer one candidate, and non-minority voters prefer a different candidate?

“Then you get into the difficult issues. Because there’s a chance the smaller group will get swamped,” Hirsch said. “The law says under certain circumstances, it will be necessary to replace districts where minority-preferred candidates can’t win with districts where minority-preferred candidates can win.”

To determine the minority-preferred candidates, legislators must look at voting in both the primaries and the general election, Hirsch said.

“You can’t just look at the demographics of the district and guess as to what is going on,” he said.

“The time to do that is right now,” said Mark Braden, of counsel at BakerHostetler. “You can refine it later, but most of this analysis will be based upon historical election data. Do it now. The one thing we know for sure is, you can’t draw plans that address legitimate interests of minority communities without understanding how they vote.”

The one thing we know for sure is, you can’t draw plans that address legitimate interests of minority communities without understanding how they vote. —Mark Braden, of counsel at BakerHostetler

The next big question: How do you figure out how many districts need to be winnable by a minority-preferred candidate? Step one: Count all the voters and examine the elections that took place across the entire state.

“Every map you draw, total up the votes in every district and figure out who won this primary and who won this general,” Hirsch said. “The one hard part is, I’m not sure which of these candidates was actually preferred by Black voters and Latino voters and Asian voters. And that’s where a statistical expert can help.”

Drawing districts with an arbitrary percentage of minority voters—say, 51%, or 55%, or 60%—is pretty much a guaranteed day in court, he said.

“That has nothing to do with actual electoral opportunity. That’s just gunning for a number. That’s like having a quota, and that gets you in trouble,” Hirsch said. “We are polarized in general, but we’re not so starkly polarized that easy rules of thumb substitute for empirical realities and election data. It’s about making sure you have enough districts that members of every community have a reasonable shot, by running a good candidate and a good campaign, at winning.”

And be aware that different minority communities might vote differently—even within the community itself, Braden said.

The idea that the Koreans and the Japanese will vote the same way because they’re Asian is “crazy,” he said. “You shouldn’t assume that Mexican-Americans vote the same way as Guatemalans. You’ve got to hire someone with a Ph.D. to do some of this analysis. All of you need to do that. You need to be doing that now.”

Pitfall No. 2: Misjudging Legislative Privilege

“Here’s what people in this room will be up against as they pursue line-drawing,” Davis said, flashing up on the screen snippets of a raft of emails that landed Michigan redistricters in court. “It’s a great example of how your electronic trail as you do this could end up in a court case. Legislative privilege is not a wool blanket that will cover all of your activities.”

Taking notes is crucial during the redistricting process, but is all of it fodder for a lawsuit?

“The ‘e’ in email stands for ‘eternal,’” Braden said. “Where people have trouble are the casual conversations, the joke—all email comes out of context. So clearly, you’ve got to use email, but be thoughtful about what you say. Remember—humor doesn’t age well.”

If you receive an email that makes you uncomfortable, be sure to respond to let the sender know that they are wrong, he said. “So there’s a record showing that you responded. Otherwise, they’ll say that’s your position.”

With respect to redistricting, Braden said, all types of privilege—including attorney-client—are subject to court scrutiny. “You’ve got to realize the push for transparency means you’ve got to be thoughtful at every step of the process.”

Pitfall No. 3: Drawing ‘Dummymanders’

When one party draws a district to disadvantage the other party and it backfires—that’s a “dummymander,” Hirsch said.

Imagine you’re in a very purple state where there’s no telling who might win a statewide office. It’s a 50-50 state, so statewide races are going to be close. “Generally, about half the districts should be more Republican in your state, and about half the districts should be more Democratic,” he said. “It’s a good rule of thumb.”

And that sounds fair, Hirsch said. With a gerrymandered map, the party drawing the map wins many districts, but not by a lot.

“Then there’s a small number of districts where the party out of power wins by a huge amount and wastes their votes. That’s a classic gerrymandering pattern,” he said.

And it’s dangerous for your party.

“Redistricting is like a life raft, and the flotation comes from your voters. And the cargo that weighs the raft down are the officeholders,” he said. “If you try to put too many officeholders in given the number of voters you have, you’re going to be lying very low in the water. And one little wave will wipe you out.”

In Georgia in the 1990s, Democrats controlled the Legislature and most of the congressional seats, Hirsch recalled. “They tried to get a new seat and preserve all the incumbents. And instead of the 9-1 majority they had, after two election cycles—’92 and ’94—they were down 3-8. They created a bunch of districts they thought they could barely win, there was a little bit of a wave—and they barely lost all of them. They tried to put nine officeholders in a life raft that could hold maybe six—and they all sank.” That’s a dummymander.

Regardless of how careful redistricters are, however, they might well end up in court, because there are always winners and losers, and everybody has standing to sue, Braden said.

“Fairness is a difficult concept,” he said. “A lot of this is musical chairs, and when the music stops, there’s often not a chair for people. You’re going to make people unhappy.

“You want them sullen—but not litigious,” Braden said. “Good luck with that.”

Lisa Ryckman is an associate director in NCSL’s Communications Division.

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