The impact of Internet-enabled gerrymandering: North Carolina

The Supreme Court sidestepped the North Carolina gerrymandering case and the 2018 congressional election will be biased there and in several other states. What is Judge Kavanaugh's position on the constitutionality of gerrymandering?

Charles and David Koch

Every ten years, after the census, states redraw the borders of their congressional districts. In most, but not all, states politicians -- the state legislature and governor -- control that process. The number of congressional districts in each state is a function of its population. For example, California, the most populous state, has 53 representatives in Congress while the seven smallest states have only one each.

Partisan gerrymandering is drawing district boundaries so as to give the controlling party in a state an unfair advantage. A gerrymandered map packs opposition party voters into one or a few districts so the controlling party has a small but safe advantage in the remaining districts. Gerrymandering is nearly as old as our country, but it was imprecise and difficult to do before the rise of the Internet. By 2010, the Democrat and Republican parties had compiled extensive voter databases, which mapping software could use to generate district maps favoring their party.

After the 2010 census, the Koch brothers and other wealthy Republican donors realized that if they controlled state governments, they could control redistricting and therefore the US House of Representatives so they increased their support of state elections and at the same time, the Democratic National Committee moved in the opposite direction -- focusing on the national election.

The Republican strategy worked. In the 2010 election cycle Democrats took five governorships from the Republicans while Republicans took 11 governorships from the Democrats and Republicans netted 721 state legislature seats, giving them control of both houses in 25 states -- up from 14 before the election.

Before and after 2010 gerrymandering (red=Republican control of both
houses, blue=Democrat, yellow=split). Nebraska is non-partisan. (Source)

The Republicans drew gerrymandered maps in key states and it paid off. In the 2012 election, 1.4 million more Americans voted for Democrats than Republicans for Congress, but Republicans won a 33-seat majority in Congress. A 2017 Brennan Center for Justice study concluded that "Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias."

The Brennan Center uses three different tests for significant partisan bias in a state and they found consistent high bias in 8 states, four of which were found to be biased using all three of their measures.

There have been a number of court challenges in these states, most recently in North Carolina where a panel of three federal judges ruled last month that the state's congressional map is an unconstitutional partisan gerrymander that favors Republicans. It is easy to see how they reached that conclusion.

North Carolina voter registration numbers from 2010, before gerrymandering, to 2018 are shown below.

North Carolina voter registration (source)

Democrats outnumber Republicans in each year, but what about Libertarians and unaffiliated voters? If we adjust, by assuming that all of the Libertarian and half of the unaffiliated voters favor Republicans over Democrats, we get the following breakdown:

Adjusted registration percents

Before gerrymandering, there were seven North Carolina Democrats in the 111th Congress and six Republicans. That dropped to four Democrats after gerrymandering and then to three.

Note further that the Republicans have not tried to hide their bias. David Lewis, senior chair of the North Carolina House Redistricting Committee, and Robert Rucho, senior chair of the Senate Redistricting Committee, who were responsible for developing the redistricting plan, engaged a well-known Republican redistricting consultant Thomas Hofeller to draw the map.

Dr. Hofeller testified that Lewis and Rucho instructed him “to create as many districts as possible in which GOP candidates would be able to successfully compete for office” and he complied, seeking “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.” Lewis also confirmed their intent in the following television interview:

 Clip1 Clip2                                                    Representative David Lewis

Using common sense and tests like those employed by the Brennan Center, it is easy to identify gerrymandering after the fact, but harder to generate agreed-upon impartial districts when new census data is gathered. There are guidelines like having about the same number of people in each district, making districts contiguous and compact and recognizing political subdivisions like city and county boundaries, but these are not hard and fast criteria. There is also an inherent tension between the desire to avoid gerrymandering and compliance with the Voting Rights Act that prohibits racial discrimination in voting -- districts must be drawn so as to give representation to minorities.

People move around, so it is reasonable to redistrict every ten years and there is no way to get consensus on a redistricting algorithm, but it is clear that partisan politicians should not have redistricting authority. The Brennan Center study found one political party had sole control (legislature and governor) in each of the seven states with high levels of partisan bias while maps drawn by commissions, courts, and split-control state governments exhibited much lower levels of bias, and none had high levels of bias persisting across all three of the elections since 2010. You can read their recommendations here.

The North Carolina gerrymander was struck down by a Federal Court, but that was appealed to the Supreme Court. The lack of precise gerrymandering criteria led the Supreme Court to sidestep the case and send it back to North Carolina, where it was again found unfair, but there was not enough time to redraw the map before the election. The gerrymandered map will be used in the 2018 election. (The Pennsylvania State Supreme Court redrew a gerrymandered map this year).

If partisan gerrymandering persists, cases like that of North Carolina will continue to be appealed to the Supreme Court and they will eventually make a precedent-setting ruling. Today's Supreme Court is clearly politicized and a decision on gerrymandering would be more central to our democracy than rulings on important issues like DACA or abortion. What is Judge Kavanaugh's position on the constitutionality of gerrymandering?

For more on Internet-enabled gerrymandering see these posts and visit The Gerrymandering Project.

Update 10/10/2019

Last June, the US Supreme Court decided that states, not the federal government, were responsible for legislative maps. This week a North Carolina state court effectively threw out the state’s map of congressional districts, saying it was an unconstitutional partisan gerrymander favoring Republicans “beyond a reasonable doubt.” Furthermore, the judges said they were prepared to postpone primary elections should that prove necessary to further litigate the case or draw new House districts, so we can almost certainly anticipate that there will be more than three Democratic representatives from North Carolina in the next Congress.

Courts can combat gerrymandering with gerrymandering tools

Gerrymandering -- defining voting districts to favor one party or candidate -- has been with us for years, but it was difficult to do and imprecise. Mapping software using Internet voter data have made it precise and easy.

Gerrymandering is in the news because a panel of federal judges ordered North Carolina to redraw its gerrymandered congressional map.

The panel struck down North Carolina’s congressional map, saying it was unconstitutional because it violates the 14th Amendment guarantee of equal protection. Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in the North Carolina legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans.

The ruling will be appealed directly to the Supreme Court, which is also hearing Wisconsin and Maryland gerrymandering cases. The Wisconsin and South Carolina cases are both based on the 14th amendment and are pro-Democratic while the Maryland case challenges the redrawing of a single district, is based on the 1st Amendment and is pro-Republican.

Gerrymandering is not new -- Patrick Henry tried to defeat James Madison in 1788 by drawing an anti-federalist district. He failed because he did not have good data and computers, but today's politicians have geographic information system software and the data they need to automate efficient, precise gerrymandering. (The term "gerrymandering" was coined in 1812 when Massachusetts governor Elbridge Gerry reluctantly approved a map in which one district resembled a salamander).

The Republican party has used Internet-enabled gerrymandering to gain a congressional advantage. The Democratic party might be tempted to fight fire with fire, but that would be slow and undemocratic.

The North Carolina judicial panel has a better solution. They gave the legislature until January 24 to present a “remedial plan” and the court will institute its own map if it finds the new district lines unsatisfactory. If that happens, the court can use use the same sorts of tools and data that have been used to produce gerrymandered districts. Instead of using the technology to optimize in favor of either party, they will seek maps that equalize district populations, minimize geographic perimeters, respect natural boundaries like rivers, maximize racial diversity, etc. In general, courts are more likely to be non-partisan than legislatures.

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Update 1/19/2018

Pennsylvania county results, 2016

The U. S. Supreme Court granted a stay in the court order requiring North Carolina lawmakers to produce a revised congressional voting map within two weeks. This temporary delay probably means the current map will be used in the 2018 election.

In a related case, the Pennsylvania state supreme court is currently hearing a gerrymandering case which could result in the redrawing of their district map in time for the 2018 election.

Republicans won 13 of Pennsylvania's 18 seats in the U.S. House of Representatives in 2016 in spite of the fact that Donald Trump defeated Hillary Clinton by only 44,292 (.75%) votes.


Update 1/30/2018

The Pennsylvania Supreme Court has decided that the Republican-drawn district map violates the State Constitution and ordered that it be redrawn by February 9th.

Republicans hold 72% of Pennsylvania's 18 seats in Congress and only carried the state by .75% in the last election. That imbalance raised a red flag, but there are no hard and fast rules for determining whether oddly-shaped districts or disproportional representation are due to intentional gerrymandering or other factors like compliance with the 1965 Voting Rights Act, which prohibits racial discrimination, or people choosing to live in homogeneous neighborhoods.

A "legitimate" district

In a sense, the judges had to decide the intent of the Republicans in drawing their district map and the following exchange during the hearing may have led them to rule that the intent was to gerrymander:

Justice Max Baer: “if you took the Democratic areas of Pittsburgh and Philadelphia and connected them via the Pennsylvania Turnpike, that’s okay?”

Jason Torchinsky, a lawyer representing the Pennsylvania Republican party: "yes.“

That would be an extreme example of "packing" -- putting all of Pennsylvania's urban Democrats into a single, overwhelmingly Democratic district. A Democrat would win the packed district in a landslide, thereby "wasting" many Democratic votes. Our Electoral College voting system also disenfranchises voters in predominantly Republican or Democratic states, thus giving inordinate power to a handful of competitive "swing" states in national elections.

Illinois District four

While the hypothetical Pennsylvania example is blatant, an unusually shaped district could also be the result of compliance with the Voting Rights Act. For example, Illinois District four has two areas connected by an uninhabited stretch of land along Interstate 294, creating a Hispanic-majority district.

For a funny and informative discussion of the difficulty of drawing fair district maps and another blatant example of partisan bias, watch the following video, but be forewarned that it includes some adult content.

Update 2/12/2018

Last Friday, Pennsylvania Republicans submitted their proposed district map to the Pennsylvania Supreme Court. The governor says he will review the map and decide whether or not to recommend that the Court accept it by February 15th. If he rejects the map, the Court will impose its own map on February 19, in time for primary elections.

In rejecting the current map, the Court noted that in the three elections held after the last redistricting, Democrats won the same five seats and Republicans won the remaining 13 seats every year, in spite of the fact that the Democrats won between 46 and 51 percent of the statewide popular vote in each election. Furthermore, in 2016, Democrats won their House seats with an average of 75 percent of the vote, while the Republicans' victory margin averaged only 62 percent. The Court concluded that the Democrats had been packed into five districts, "wasting 25 percent of their votes," and the Republicans were spread out among the remaining 13 districts.

This map shows the packing of the seventh district:

Source

The Court found that the evolution of the district from a compact, contiguous region at the time of the 83rd Congress (1953-5) to today's map indicated illegal gerrymandering:

Source

The stakes are high. If redistricted, Pennsylvania might end up with nine Republican and nine Democratic representatives and that could make the difference between Democratic or Republican control of the US House of Representatives.

Update 3/24/2018

Map redrawn by the Supreme Court

The Pennsylvania Supreme Court rejected the redrawn map submitted by the Legislature, substituting the map shown here which has:

• 10 Trump 2016 districts
• 8 Clinton 2016 districts
• 1908 district border miles
• 13 county splits

As compared to the old map which had:

• 12 Trump 2016 districts
• 6 Clinton 2016 districts
• 3047 district border miles
• 28 county splits

A dozen Republican members of the Pennsylvania House of Representatives have filed impeachment resolutions against the five Supreme Court judges who are Democrats, arguing that they had violated the State Constitution.

The Chief Justice of the Supreme Court, a Republican, released a statement calling the impeachment resolution "an attack upon an independent judiciary."

Two New York Times staff members drew the following map to demonstrate the ease with which partisan redistricting is achieved using mapping software with data available on the Internet. They did it using Dave's Redistricting Service -- you can try it for yourself.

A blatantly partisan, hypothetical district map drawn using an Internet service

It is easier to spot gerrymandering and state the problem than it is to come up with an equitable, constitutional solution, but we should do our best to keep partisan politics out of the process and legislators are nearly all members of a party. Having courts draw up maps, as was done in Pennsylvania, or allowing states to establish independent redistricting commissions like the one in California seem like imperfect steps in the right direction.

Update 9/3/2018

In June, the Supreme Court sidestepped the question of when extreme partisan gerrymandering is unconstitutional on technical grounds. They acknowledge that gerrymandering is a threat to democracy, but seem uncertain on technical issues like the lack of an operational definition of gerrymandering, deciding whether a political party or a voter is harmed by gerrymandering, whether challenges have to be to a specific district map rather than an entire state, etc. They have left the door open for future action.

Last month, a Federal Court found that North Carolina’s congressional districts were unconstitutionally gerrymandered to favor Republicans over Democrats and said it may require new districts before the November elections; however, it now appears there will not be time to redistrict the state. This will taint the outcome of the election and could conceivably determine the Congressional majority.

This article presents analysis showing that the current districts are stacked in favor of Republicans and, lest one conclude that this was a fluke, quotes State Representative David Lewis as saying: "I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In the Federal Court ruling, we read that when Dr. Thomas Hofeller was engaged to draw new districts Mr. Lewis and State Senator Robert Rucho instructed him to “to create as many districts as possible in which GOP candidates would be able to successfully compete for office.” Dr. Hofeller testified that he complied, seeking “to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”

How do these people sleep at night?

Update 9/6 2018

The same panel of judges that opened the possibility of redistricting before the November election has concluded that the current, radically gerrymandered map must be used this year because there is not enough time to revise it before the election. The citizens of North Carolina have been denied democracy for the last three elections. Let's hope that the fourth time will be the last.

The effect of gerrymandering in North Carolina (source)

Update 10/10/2019

Last June, the US Supreme Court decided that states, not the federal government, were responsible for legislative maps. This week a North Carolina state court effectively threw out the state’s map of congressional districts on Monday, saying critics were poised to show “beyond a reasonable doubt” that it was an unconstitutional partisan gerrymander favoring Republicans. Furthermore, the judges said they were prepared to postpone primary elections should that prove necessary to further litigate the case or draw new House districts, so we can almost certainly anticipate that there will be more than three Democratic representatives from North Carolina next year.

For more on North Carolina gerrymandering see this post.

Modern, Internet-enabled gerrymandering

The Koch brothers live in Texas and interfere with elections in other states. Putin lives in Russia and interferes with elections in other nations. Are they legally and morally similar?

Charles and David Koch

Do you recognize these two men? They are Charles and David Koch, long-time supporters of libertarian, "tea party" political causes. In 2010 they supported Republican candidates in order to take control of state legislatures.

They focused on state legislatures because they have the power to redefine the boundaries of federal congressional districts. Once in power, the Republicans redrew district boundaries, packing Democrats into as few districts as possible and spreading the rest out across multiple districts.

Drawing districts to favor one party is called "gerrymandering," and it's nothing new. Patrick Henry tried to defeat James Madison in 1788 by drawing an anti-federalist district. Patrick Henry failed because he did not have good data, but in the Internet era, gerrymander technicians have all the data they need -- party registration, demographics, psychographics and personality traits. They also have computer programs like Maptitude that can use that data to draw up party-optimal district maps.

Maptitude heat map

As you see below, the strategy worked well for the Republicans. They control many state legislatures and outnumber the Democrats 238 to 193 in the House of Representatives. Gerrymandering has directly affected the House and the funding focused on state legislature races has had a spill-over effect on other statewide and federal elections.

State legislative seats by party

There are currently 4 vacant House seats and Democrat Jon Ossoff is running for one of them in a heavily Republican district in Georgia. Few politicians (from any party) would admit that gerrymandering is done for political reasons, but speaking of this close race, State Senator Fran Millar clearly acknowledged that it was in an unguarded moment, saying

“I’ll be very blunt: These lines were not drawn to get Hank Johnson’s protégé to be my representative. And you didn’t hear that. They were not drawn for that purpose, OK? They were not drawn for that purpose.”

The Democratic reaction to this strategy was to fight fire with fire by forming their own gerrymandering organization, the National Democratic Redistricting Committee, headed by Eric Holder and supported by President Obama. But do we want elections to be influenced by gerrymandering? Is Democratic gerrymandering any better than Republican gerrymandering?

I think we need a neutral answer. Larry Lessig ran for president in 2016 on a single issue – citizen equality. His proposed Citizen Equality Act would promote equal right to vote, equal representation and citizen-funded elections. Our democracy is threatened by special-interest election financing -- might Lessig's proposal or something similar save it?

Lessig called for an attack on three fronts -- campaign finance reform, voting rights, and equal representation. We may see action on equal representation this year when the Supreme Court takes up the issue of partisan gerrymandering.

The Koch brothers live in Texas and interfere with elections in other states. Putin lives in Russia and interferes with elections in other nations. Are they legally and morally similar?

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6/19/2017

In the 2012 Wisconsin State Assembly election, Republican candidates received 48.6 percent of the popular vote but won 60.6 percent of the seats. The Supreme Court has agreed to rule on the constitutionality of the partisan gerrymandering responsible for that result.

A ruling against partisan gerrymandering would probably come too late to force redistricting for the 2020 election, but it would be significant going forward. In briefs to the Supreme Court, Wisconsin’s Republican legislative leaders estimated that if their redistricting is unconstitutional, so is that of about one-third of the other states.

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10/3/2017

The Supreme Court heard arguments today on whether a redistricting plan in the state of Wisconsin was unconstitutional. Gerrymandering dates back to the 18th century, but Internet data, GIS software and donors like the Koch brothers have improved and automated it.

Given his vote in a Texas redistricting case, Trump appointee Neil Gorsuch is a likely supporter of Wisconsin's right to gerrymander. I wonder how Merrick Garland would have voted.

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10/4/2017

A short message thread on Dave Farber's IP email list makes the point that the Internet could be used as a tool for objectively defining equitable congressional districts as well as for gerrymandering.

Ridgely Evers pointed out that algorithms could be devised to:

• equalize population +/- X%
• minimize perimeter
• respect natural boundaries (rivers, for example)
• maximize racial diversity
• etc.

In a second post, George Sadowsky reported that in 1964 he had worked on a project to optimize congressional districts with Morris Davis, then the Director of the Yale Computer Center. Davis had been appointed a Special Master by the Federal Court in Connecticut to come up with a plan for Connecticut's congressional districts. They wrote two algorithms that yielded intuitively sensible partitionings of the state and the legislators used their results in negotiations.

I don't know how the Supreme Court will rule in this case -- Justice Kennedy is said to be the swing voter -- and it is hard to imagine the Republicans voluntarily give up their gerrymandered advantage. (I bet the Democrats would do the same -- politicians like their jobs). One way forward might be using Internet data and algorithms such as those suggested here to generate alternative, balanced partitions and publicize the results -- show the voters alternatives.

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Update 1/10/2018

The Internet enabled partisan gerrymandering and now a panel of federal judges has ordered North Carolina to redraw its gerrymandered congressional map.

The panel struck down North Carolina’s congressional map, saying it was unconstitutional because it violates the 14th Amendment’s guarantee of equal protection. Judge James A. Wynn Jr. said Republicans in North Carolina’s Legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans.

The legislature has until January 24 to present a “remedial plan” and the court will institute its own map if it finds the new district lines unsatisfactory. Needless to say, the Democrats reacted positively and the Republican negatively.

The ruling will be appealed directly to the Supreme Court, which is also hearing Wisconsin and Maryland gerrymandering cases. The Wisconsin case is similar to South Carolina's, which is based on the 14th amendment, challenges the state district map and is pro-Democratic while the Maryland case challenges the redrawing of a single district, is based on the 1st Amendment and is pro-Republican.

For more on gerrymandering in various states, see this post.