Redistricting: An Academic and Legal Perspective

THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C. (Virtual)

MODERATOR:  Good morning and welcome to the latest briefing in the Washington Foreign Press Center’s Understanding America series.  Today’s briefing will focus on redistricting, a critical aspect of the U.S. electoral process. My name is Jen McAndrew and I am today’s moderator. 

Redistricting, the process of drawing electoral district boundaries, takes place in the United States following the completion of each decennial census to account for population shifts.  Here today to explain the various legal approaches to redistricting at the state level and the current status of redistricting efforts is Rebecca Green, professor of law at the College of William and Mary Law School, co-director of the election law program.  She is a legal expert on legislative redistricting and redistricting transparency, has served on the bipartisan National Task Force on Election Crises, and provided research support for the Presidential Commission on Election Administration.  We appreciate Professor Green giving her time today to brief the foreign press.   

And now for the ground rules.  This briefing is on the record.  Today’s briefer is an independent expert.  Views expressed by briefers not affiliated with the Department of State are their own and do not necessarily reflect those of the U.S. Government.  Participation in Foreign Press Center programming does not imply endorsement, approval, or recommendation of their views.   

Our briefer will give opening remarks and then we will open it up for questions.  And with that, I will pass it over to our briefer.  Professor Green, over to you.  

MS GREEN:  Great, thank you so much.  I’m going to share my screen.  I do have a PowerPoint presentation, which I hope is helpful to frame my remarks.  I guess first I’ll just mention – so I teach at William and Mary Law School, where I teach election law, and I also teach a class on legislative redistricting and GIS where the students use software to draw compliant maps in Virginia.  So that’s who I am.  I just want to take a quick minute to thank the Foreign Press Center for inviting me to speak on this topic.   

And I also wanted to offer a warning.  I teach election law, which is very different from politics or political science.  So I’m going to be focusing these remarks on the legal and process questions surrounding redistricting, not the political ramifications of how redistricting impacts politics in the United States.   

So with that caveat, I’ll jump right in.  This is a map that is intended to show you the different ways that states draw their maps.  So in most states, the states that are in green, the legislature is responsible for drawing the lines.  And this creates a huge conflict of interest because they’re drawing lines for their own districts.  And so oftentimes you’ll see, if one party is in power, you’ll see them try to draw lines to protect or increase their power.  Or sometimes you’ll see a bipartisan gerrymander where parties – incumbents on both sides of the political spectrum will join together to protect their seats.   

The other model that is common is an independent commission.  So you’ll see the yellow states represent states where the legislature no longer has power to draw the lines and it’s instead been given to an independent commission.  It depends on how the commission is structured, but often the state legislature won’t even have kind of an up-or-down down vote once the independent commission draws the lines.   

And then there’s kind of a bunch of other variations, which you can see in the other colors in this map.  But that just gives you a general sense of who draws the lines in the United States.  I guess it’s important to mention also that the U.S. Constitution in Article One, Section Four delegates to states the power to sort of decide how their elections are run, and that includes redistricting. And so there’s been a lot of push this last year or so to say that legislatures should have total power over elections, which could call into question whether or not commissions have the constitutional authority to draw the lines.  But there was a Supreme Court case out of Arizona several years ago in which the court said that the system in Arizona to have an independent commission was in fact constitutional, even though it cut the legislature out of the process.  So that was resolved, at least with respect to that case. 

This next slide I thought I would just try to give you an overview of what rules apply, what rules those who draw the lines in the United States have to follow when they are making district maps. The first to note are just basic federal law, the most straightforward of which we call “one person, one vote,” which means that each of the districts – so if you have a state that has 10 U.S. congressional districts, each of those districts has to have the same number of people.  You’ll hear that referred to as equipopulation.  Federal law also mandates that, at least for U.S. congressional districts, you cannot have any multi-member districts, meaning that you can’t have a single district that elects more than one candidate to U.S. Congress.  There are some states that have multi-member districts, but in the United States, most districts even at the state level are single-member districts. 

There’s also provisions in state constitutions that put out some rules for how line drawers have to draw their lines.  I’ve given some examples here.  Contiguity just means that they – the districts can’t be in two different parts of the state, they have to touch the – they have to be contiguous.  They have to not be like a polka dot pattern.  They have to be compact, and there’s been a lot of litigation about what that means because there are lots of different ways to measure compactness. And then most states require that political or geographic boundaries be considered during the line-drawing process, so for example, you wouldn’t cut up a city or another – or you wouldn’t cross a lake, for example, or a river. 

Then it’s important to note that there’s a huge amount of variation in how states draw their lines and what rules apply.  So this is a – just a slide to give you some examples of state variation.  So some state constitutions required that line drawers keep communities of interest together, so you can think about that as, for example, if there were a military base or an agricultural community or a group of people who have the same interests, the state commands that line drawers try to keep those interests together in one district so that their vote isn’t diluted by being divided into two or more districts. 

There’s also a very few states that encourage line drawers to draw competitive districts – that is, to take politics into account to ensure that incumbents, for example, aren’t guaranteed re-election because of how the lines are drawn.  And then there’s this other more interesting provision in a lot of states where you can’t unduly favor or disfavor a candidate or a political party.  That is to say, the goal is to take partisanship out of the process, which is actually very difficult to do because it’s a highly partisan process.  And so in states that have these laws on the books either in their state constitution or by statute, there’s a lot – there’s going to be a lot of litigation about what exactly it means to unduly favor or disfavor a candidate or political party. 

Another really difficult part of redistricting in the United States has to do with minority representation, and by this I mean racial minorities.  So there are protections in the U.S. Constitution against discriminating, which in the line drawing context usually is called racial gerrymandering.  So if you’re drawing lines to prevent the voting strength of a recognized racial minority, you would be violating the equal protection clause of the U.S. Constitution.   

There’s also a federal statute, the 1965 Voting Rights Act, that requires line drawers to not dilute minorities’ ability to elect their candidates of choice.  This is incredibly complex, this area of the law.  It would take me much longer than 20 minutes to explain this, but essentially, if there is a minority group that is sufficiently large and geographically compact, and if the voting in that area is highly racially polarized where the minorities vote differently than the majority population, then the 1965 Voting Rights Act creates protections for that group of minority voters from being sort of intentionally divided or packed into districts or cracked into multiple districts. 

But it’s tricky because, essentially, line drawers are told that they must ensure that minorities are able to maintain their ability to elect their candidates of choice, but line drawers can’t take race too much into account – that is, there have been several court cases that have held that, for example, when legislatures set specific targets, like if they set a minority district has to have 55 percent minority voters or 60 percent minority voters, the U.S. Supreme Court has said that that’s a racial gerrymander because it’s an arbitrary sort of target and it doesn’t take the needs of the minority communities into account with sufficient kind of, I guess, finesse.  So race and redistricting is incredibly complex, and you have to have a law degree and many years of experience in the area to sort of understand what is required.  And so this has – this is going to be an incredibly challenging part of applying the law, federal law, in the line drawing process, because there’s a lot of disagreement about what the – particularly Section 2 of the Voting Rights Act requires. 

And then, of course, I should mention partisan gerrymandering.  So partisan gerrymandering is where one party – for example, let’s say there’s a party that has 40 percent voting strength in a state, so 40 percent of the voters in a state are, let’s say, Democrats, and yet they have a majority in the legislative body.  Let’s say they have 51 percent, so they can control the line drawing process.  They can draw lines to maintain power even if they are a minority in terms of the voters in the state, and that’s essentially what partisan gerrymandering is.  And for a long time in the United States, plaintiffs have tried to use the U.S. Constitution to defeat the practice of partisan gerrymandering, but the problem is that they had a lot of trouble coming up with a good standard that would allow the court to find that partisan gerrymandering had violated the U.S. Constitution.  And that’s because the court has acknowledged that legislatures are allowed to take partisanship into account when they draw the lines, so the question was how does the court determine when the legislature has taken partisanship too much into account.   

And it was that line drawing problem that for decades totally befuddled the U.S. Supreme Court until 2019, when the U.S. Supreme Court decided that partisan gerrymandering cases were what’s called non-justiciable, which means they decided that it was impossible for courts to identify unconstitutional partisan gerrymanders so that they would no longer after Rucho, this decision in 2019, be involved in weighing those claims.   

As this slide notes, after Rucho came down, that isn’t the end of partisan gerrymandering claims, but they have to be vindicated in state courts using state laws.  Like for example, some state constitutions require that elections be free and fair, and some plaintiffs have turned to those kinds of provisions to try and attack partisan gerrymandering under state constitutional grounds. 

I thought I’d just say a few words about process transparency in the United States.  In U.S. history, the process of drawing lines has been shrouded in smoky back rooms where there was very little opportunity for the public to even know that redistricting was taking place.  Of course, for much of our history it didn’t take place at all, which was basically just legislators holding on to power.  In the 1960s, the court got involved in trying to police making sure that the legislatures were drawing the lines every 10 years and also that the districts were equipopulous.  And so the process started to be – at least people started to be aware that the process was happening, but even still it’s very arcane and most Americans aren’t really aware of how this process unfolds.  So in our history it’s been a not very transparent process at all. 

But in terms of what I look for when I’m looking at a state’s process and whether or not it’s transparent, I look to see whether the state is making data available that will allow people to, for example, draw their own maps or otherwise evaluate maps that are being proposed.  I look for whether they are able to attend meetings, whether they’re scheduled well in advance, and whether they’re – they take place around the state.  This isn’t as relevant this year, of course, because most of these meetings are happening on Zoom so it doesn’t matter where in the state you’re meeting.  But at least in the last round, for example, in California, the California Redistricting Commission would travel all over the state to gather information from people about where they thought lines should be drawn. 

And then finally, and I think one of the most important transparency measures is to ensure that maps are published – that is to say, proposed maps are published well in advance of becoming finalized and early enough that people can have meaningful input if they are unhappy with what they see.   

I thought I’d just mention sort of where you sort of see the fault lines in terms of litigation.  You see a lot of litigation about partisan – partisanship and line drawing.  And I think this round we won’t see it in federal court, but we will see it in state court, particularly when it comes to litigating what it means for those states that have these provisions to not favor or disfavor a political party or candidate. 

I think you’ll see a lot of kind of pressure on this question of meaningful public input and when and whether the public is allowed to take part in the process.  And then I think there’s going to be, at least when it comes to transparency, a lot of kind of talk about how to address process abuses when, for example, maps are passed in the dead of night without any opportunity for meaningful public input. 

I thought I would also mention just quickly some of the concerns when it comes to line drawing and why people are worked up about this in the United States.  The first concern really is that this leads to a lot of political polarization, and this happens because you essentially are creating noncompetitive districts, at least if you’re going to gerrymander.  Part of the dream, right, is that you create safe districts for political parties.  And once you’ve done that, that reduces the incentive for elected officials to court independents and moderates because they have a safe district.  And so the feeling is that that leads to greater polarization in our politics.   

Another big concern because in the United States partisanship and racial identity often align, there – we’ve seen this a lot.  We’re seeing this in a lot of southern states in this round where, for partisan reasons, at least in – on the face of it, lines are being drawn to protect partisan interests, but it’s having a discriminatory impact on minority voters.   

And then the last concern I think about gerrymandering here – this is particularly with respect to partisan gerrymandering – is this problem of minority rule.  You can look at states like Wisconsin, for example, where a majority of voters vote for Democrats and yet the Wisconsin legislature with very clever line drawing has been able to maintain minority power over the state legislature.  So that’s really a big concern in terms of how the lines are being drawn and sort of basic fairness questions. 

I wanted to share with you a few tools that are on – that are available this round that weren’t previously available that I think are going to have a really big impact on how the public evaluates the maps that are being produced.  And the first one I’ll mention is PlanScore.  I’ve included the links here so that you can take a look.  PlanScore is an incredible resource where you can take a map that’s been proposed and run it through PlanScore’s system, and it tells you, like, what the impact is.  In this slide you can see with respect to partisanship, and you can see that this map that’s been proposed here in Colorado leans heavily right.  And so it’s a very easy way that the public will be able to tell whether it’s a fair map or not a fair map.  And so I think tools like this are going to have a really big impact on sort of how the public evaluates whether or not the legislature is doing a good job, and it could have a tempering effect in the sense that you can’t sort of do this in the dark anymore because there are tools like this out there. 

I thought I’d just quickly mention who – where we’re likely to see litigation and why.  This slide gives you kind of a basic overview of the different areas where I think you’ll start to see and we’re already seeing litigation.  I don’t think any of this would be a surprise based on what I’ve already laid out. 

And then finally, I thought I’d let you know about some places you can go if you want to read about litigation that’s happening in the state.  This is the American Redistricting Project litigation tracker, which I think is an incredible resource.  It’s actually one of my students – my former student is behind this.  He was hired by this organization to help with this website, and I can tell you that it’s excellent.  There’s a way to search by topic and by state, and very helpful overviews of litigation that’s arising.  This is a right-leaning website.   

Then this is another really great resource.  This is done by – it used be done by a professor at Loyola, and as you can see there’s a little cross-out where Doug Spencer has taken this over while the professor who was doing this is working in the Biden administration.  But this resource has just an incredible wealth of information not only about what redistricting litigation is happening in states, but also about process and how each state – each state’s laws require – or I should say what the laws require in each state, both with respect to who draws the lines and what they’re required to – which rules they’re required to follow. 

And then I guess just to sort of end us out here, this slide gives you a sense of where we are because, of course, the U.S. Census was delayed.  It got – because of COVID and other factors, it didn’t come out on time.  And so we’re looking at the map here of where states are in the process in terms of getting their maps finalized, and you can see that there is already some litigation popping up.   

So that is all I have for you, and I hope that was helpful.  It’s, again, just a very broad overview of some of the laws and process challenges that we’re facing right now. 

MODERATOR:  Thank you, Professor Green, for that very concise overview of a very complex issue.  We will now start the Q and A for today’s briefing.  If you would like to ask a question, you can raise your hand using the raise hand function or submit it in the chat.  We did have a few advance questions submitted, so I’d like to start with one of those from David Smith of The Guardian.  His question is:  “Do Democrats face a dilemma: take the moral high ground by opposing gerrymandering or fight fire with fire by doing it themselves?” 

MS GREEN:  So this is a very good question, and I think Virginia, which is the state where I am, is a poster child for this problem.  So we had redistricting reform on the table, which require in Virginia in order to change our constitution you have to pass the amendment through two successive legislatures.   

So the first legislature to look at the proposal to have an independent commission in Virginia was a Republican legislature, and they were a couple of years out so they figured, yeah, we may as well vote for this and we can vote it – put it down next time.  And then the following year the Democrats had gained control of the legislature in Virginia, and so they had to make a big decision, which is:  Do we vote for reform of this process because of the anger especially on the left about partisan gerrymandering and sort of do the right thing, or do we cling to power because we will be in control when the lines are being drawn the following year?   

So they were – this was exactly the question that they had to kind of wrestle with.  And the decision that they made was to do the right thing, which was to divest the legislature at least of partial power because it’s a – not quite an independent commission.  It has some legislatures on it.  But it was – they did give up power in making that decision.   

I think a lot of Democrats in Virginia are not happy with the decision that the legislature made given that it – they did have – they were going to be in the driver’s seat otherwise during this process.  But for those of us who care about process fairness, I think you can kind of go back and forth, and one party can be in control one time and stick it to the other party, and then 10 years later it can be the exact reverse.  But it seems like the American public anyway has a huge appetite for process fairness, so that may be the direction if – we go if people are truly responsive to voters’ interests. 

MODERATOR:  Thank you.  Our next question, I will call on Daisuke Nakai from Asahi Shimbun.  Please unmute yourself, Daisuke. 

QUESTION:  Hi.  Thank you very much for doing this.  Sorry, I’m sort of off camera.  I’m sitting off to —  

MODERATOR:  You’re fine. 

QUESTION:  You mentioned Section 2 of the VRA —  

MS GREEN:  Yes. 

QUESTION:  — which seems incredibly complex, to tell you the truth. 

MS GREEN:  It is.   

QUESTION:  I know there’s been a couple of conservative cases saying that basically Section 2 is unconstitutional, that it sort of legitimized gerrymandering.  But complementary down the line since the Voting Rights Act was passed – more than 60 years now I guess – what are your thoughts?  Is Section 2 still necessary?  Is it viable?  Can anybody really explain how it really works? 

MS GREEN:  Yes.  So Section 2, a lot of people have thought that Section 2 is on the chopping block because of just what you mentioned – this concern that it involves courts too much in the line-drawing process, and that they don’t have sort of enough guidance, that they’re making sort of political decisions when they apply Section 2, and it’s not straightforward enough to survive constitutional muster.  That’s been the argument that Justice Thomas has been making for years.   

If you ask voting rights attorneys, they will tell you that Section 2 is actually quite easy to apply in the sense that a court case called Gingles v. Thornburg gave very clear – Thornburg v. Gingles gave very clear direction onto when there was circumstances plaintiffs had a Section 2 claim.  And that has to do with what I was talking about earlier, which is that Section 2 only applies if a minority community is politically cohesive and if it is sufficiently large and geographically compact to exercise voice in the political process.  And so the idea is that that case that set up this kind of structure for who could bring a successful Section 2 claim simplified and made it easier for courts to apply the law. 

But on the other side there is a lot of confusion, and Justice Thomas’s argument about it being too difficult to apply, I think, is getting a lot of steam.  And I think it will be really interesting to see how that all plays out, whether line drawers are able to have enough guidance about what Section 2 requires to draw maps that evade litigation.  But something tells me that a lot of litigation is going to pop up and I guess has already started to pop up.  So I think it’ll be really interesting to see what happens. 

MODERATOR:  Thank you.  We have a question submitted in the chat from Jan Kaliba of Czech Radio.  The question is:  “Using the tools you’ve mentioned and other knowledge, do you see more non-transparency, partisanship, and issues with fairness during this cycle of redistricting compared to the past?” 

MS GREEN:  Yeah, I think it may be a little too early to tell, and I would be lying if I said that I was on top of what each of the line drawers are up to in all 50 states.  But I can give an example of Virginia, which I obviously am spending a lot more time with.   

The process has been ridiculously transparent.  As a citizen sort of watching the whole thing unfold, I’ve been amazed by the fact that the commissioners on Virginia’s commission really tried to stick to the letter of the law, and the only conversations they had were in public – so much so that we had at one point a delegate from northern Virginia who had, in one of the proposed maps, he had been drawn out of his district – which is common, that happens a lot.  And normally there would be sort of backroom sort of bargaining about how to redraw the line to keep him in his own district.   

But instead, in this round in Virginia he had to make that plea in public, and he got a lot of flak for it on the one hand; but on the other hand, I think it was an example of the process being truly transparent.  And he had every right to ask for – to stay in his district, but he was forced to do that in public.  And I think that speaks well to kind of the setup of the commission model where these transparency requirements are so robust. 

So you might not like seeing how the sausage is made, but at least you can see it, which in Virginia, in all of Virginia’s history, that sausage was protected by legislative privilege.  So you couldn’t even – even if you were suing and making discovery requests, you wouldn’t have access to those kinds of back and forth. 

So I don’t know if that answers your question, but I think transparency is tricky in redistricting because unless you have rigorous, rigorous transparency protections, you can have a public-facing process, but the sausage can still be made in the back room.  So that’s really, I think, the struggle in the United States, is trying to figure out how to rein in legislatures’ worst impulses when it comes to line drawing. 

MODERATOR:  Okay.  We’ll now take another live question from Alex Raufoglu, Turan News Agency, Azerbaijan.  Alex. 

QUESTION:  Thank you so much for doing this, and happy Friday.   

MS GREEN:  Thank you.  We made it. 

QUESTION:  Line drawing, as you said, is critical for federal elections, like the upcoming midterms, and the power to make these maps lies with the states.  But some of them, as you mentioned, have handed the power over to independent redistricting commissions.  So that’s my question.  Can you please help us understand the bigger picture there?  Like, how do they operate differently?  What sort of data have to be considered by these independent commissions when drawing up these maps? 

And I know you also mentioned that you don’t want to – that you want to stay on the topics, and I’ll try to do my best to reflect it, albeit questions about electoral redistricting could impede the potential for truly democratic representation.  What are the big themes, in your opinion, so far in terms of parties shoring up their areas?  I know there be some – we heard and read about some fights.  Thanks so much. 

MS GREEN:  Yeah.  Yeah, so I’ll explain the way commissions work.  So – well, first of all, every state will set up its commission slightly differently.  So they’ll be populated in a different way and they’ll be – and the rules that they follow will be different.  So there’s no one size fits all in terms of how commissions function, but I can give you a few examples.   

So in California – so California and Arizona have – I think are the furthest along in experimenting with the commission model.  And in those states the commission is populated by citizens, so it’s – there are no legislatures on the commission at all.  And that’s kind of the biggest process protection, I think, and the reason why independent commissions are so popular, because otherwise you’re stuck in the United States with the hen guarding – or the fox guarding the henhouse, right, where you have legislators who are drawing their own lines and there’s this inherent conflict of interest; whereas if you have non-legislators, citizens drawing the lines, they don’t have that same conflict of interest.  They may have political preferences, but they don’t have that same conflict of interest in terms of their own job being protected by where the lines are drawn.  

So that’s the theory.  I think when you have independent commissions that don’t have any – where the legislature is taken out of the process, I think you also tend to see a lot of process fairness, so some of the transparency processes that I described where all the meetings are public, where there’s greater public input, where the input can be meaningful.  So you see some of these process protections built into commission states as well.   

And then I think also states are really experimenting with how to make the process more fair based on the rules that they apply, and this idea that you can’t favor or disfavor a political party is something that I think is going to be incredibly – I think people are going to be looking very closely at that this cycle, especially now that partisan gerrymandering claims have been ruled non-justiciable by the U.S. Supreme Court.  So I think that’s where all the eyes are going to be.  

And then remind me what the second question was, because I’ve now talked for so long that I can’t recall what part two was. 

QUESTION:  Yeah, some fights that we have heard and read about among parties.  I just – I want to let you highlight any of these ongoing fights.  What are they — 

MS GREEN:  Yeah.  

QUESTION:  I understand that some big themes are out there and they are trying to shore up their areas, but in your opinion what are the big themes that they are fighting over right now? 

MS GREEN:  Yeah.  So it’s really interesting.  When – in 2019, when this issue was before the Supreme Court – that is, how far parties can go to protect power by drawing the lines – the case was teed up with a case in North Carolina where the Republicans had done just a ridiculous gerrymander, partisan gerrymander, where they said outright we’re trying to protect Republicans and we’re – we want to draw a map that will favor Republicans.  But the companion case that was before the court was from Maryland where the Democrats had done the exact same thing.  They had very deliberately gerrymandered the state to protect Democrats.  And so it was sort of this very nice – it made it seem as if – and it is true that both Republicans and Democrats, when they are in power, will typically – if they have the power to draw the lines in their favor, they will.   

And I think if anything is true, it’s that a partisan, if given power, will act to protect their power. And I think we’re going to continue to see that play out as long as states give partisans power to go nuts, and I do worry that the 2019 Supreme Court opinion will unleash the worst partisan instincts.  And I think we’re already starting to see that in states like North Carolina and Georgia, where now, unless there are state laws that require otherwise, line drawers can say, “We’re just doing a partisan gerrymander.  We’re just trying to hold power for our own partisan interests.” And that’s troubling if you care about process fairness and the idea that the lines should be drawn so that voters can elect candidates who they like. 

QUESTION:  Wonderful, thanks so much. 

MODERATOR:  Thank you.  To follow on with that question, we had a question submitted in the chat from Francesc Reverter. TV3 Catalonia.  The question is:  “How pessimistic/optimistic are you regarding the most gerrymandered states like Ohio, North Carolina, or Georgia?  Do you think it’s still possible that they have free and fair elections?  Or with their majorities and the 2019 Supreme Court ruling, will it be virtually impossible for Democrats there to win congressional elections?” 

MS GREEN:  Yeah I don’t know the answer to that question.  I don’t know if I’m optimistic or pessimistic, and I think one thing to keep in mind – and Justice O’Connor used this phrase in one of her opinions – she called it a dummymander, and that is to say when you go so far and the line drawing is so egregious, you might make people angry enough that you’ll actually undermine your goal – that is to say we have very low turnout elections in the United States, and if people get angry enough about this issue it could be that we see shifts that were not predicted.  

And I think that’s the other piece of this is that I think it’s – when you gerrymander you’re gerrymandering because you have a pretty good idea of how you think a person votes.  I mean, it’s – you can literally tell where to draw the lines based on which magazines people order or what their credit card statement has to say about what you think their political leanings are.  So it’s all predictive.  And there’s every reason to believe that at least in some circumstances, those predictions might be wrong, and so it’s hard to say – on the one hand, you could argue that people, legislators, line drawers can gerrymander with surgical precision because of all the data they can use.  On the other hand, life is unpredictable, political wins are unpredictable, and so even the most careful gerrymander may come apart given political trends that unfold.   

So I guess that is all to say that it’s – there’s reason to believe that parties will be able to entrench themselves and that what worked in the past will work going forward, but it’s also possible that politics could be upended by something, including people being angry about gerrymandering, and those predictions might not necessarily come true. 

MODERATOR:  Okay.  I’d like to come back to another advance submitted question.  This one is from Pearl Matibe from Swaziland News.  Her question is:  “If you were to list the top three pillars that assure redistricting transparency in democracies, what would they be?  And what would be three challenges that process faces today in the U.S. and weaker democracies around the world?” 

MS GREEN:  Yeah.  I think – the pillars I think are whether the data is available in a usable format, whether there are open meetings requirements, and whether maps are published early enough for meaningful public input.  But I guess – I sort of alluded to this during my remarks – the problem is that you can have what appears to be a very transparent process that’s public facing, but then have the sausage being made in the back room nevertheless.   

And there was a really interesting example of this in Florida.  So in the 2010 round, Florida voters had passed an amendment to require that there be no partisanship at all in the line-drawing process.  So they left it with the legislature to draw the lines but they said you can’t take partisanship into account, you can’t act to protect partisan interests.   

And so what happened in Florida was that, in this case, the Republican Party mobilized and it sort of figured out what it wanted the lines to be and then it had sort of stand-in – sort of, quote-unquote, “members of the public” present maps through a public comment process appearing to be a disinterested member of the public, but in fact entering in sort of these very partisan maps.  And it was sort of up to a court later to figure out whether those actions had, in fact, violated the constitutional requirement in Florida’s state constitution not to use politics.   

So that’s just an example of what was, on its face, a transparent process which was actually being manipulated in the back end by partisan actors.  So, I mean, transparency can only get you so far in the redistricting process, and I do worry that even transparent processes will, in fact, have problems in terms of how they accept public input. 

MODERATOR:  We’re coming to the end of our time, so I’ll just do one last call for questions.  You can raise your hand or submit in the chat – oh, I just saw one came in in the chat and this is from Shinichi Akiyama from Mainichi Newspaper, Japan.  The question is:  “The U.S. population is more diversified now, so how does this diversity affect the redistricting process?” 

MS GREEN:  Right.  So this is probably the most important question in terms of this round of redistricting because the question is:  As states diversify, like Texas and Georgia for example, will line drawers reflect those changes in the maps that they draw?   

So in other words, if a state has – let’s say, just to give a wild example, if the minority voting population in a state raises by 20 percent over the course of 10 years, which is a lot, but just to give an example, will that 20 percent sort of voting power increase be translated in the maps that are drawn?  Or instead, will the maps be drawn to kind of scatter that minority influence?  And I think what we’re seeing, at least in states like Texas and Georgia, is that it’s more the latter, that the maps are not reflecting the changed demographics in the state in ways that I’m sure will be litigated. 

MODERATOR:  I’ll come to another advance submitted question.  This was from Takashi Oshima of the Asahi Shimbun in Japan.  The question was:  “Do you think redistricting is one of the factors that accelerates polarization?” 

MS GREEN:  That’s certainly the argument that’s made.  That is to say gerrymandering specifically leads to, the argument goes, less competitive districts.  And where you have less competitive districts, then you’re more likely to have partisans or candidates who are playing to the extremes and rather than looking for votes in the middle. 

But it’s awfully complicated, and I think there are a lot of drivers in polarization in the United States that are leading to more polarization that don’t have to do with redistricting.  So I think it feeds it in certain circumstances, but I think there are all kinds of issues like, for example, with our primary system that are potentially having a greater impact on polarization than redistricting.  But I think there’s no question that it’s – it can make it a lot worse. 

I think one of the unfortunate drivers of polarization in our country is the first-past-the-post election system that we have.  So we don’t use proportional representation systems.  We don’t typically have multi-member districts.  And so basically, you just basically in some places just need to win your primary and you’re almost guaranteed to win in the general election.  And so that means, right, that in a primary, mostly more extreme voters are the ones who participate, and so you’re not really, again, playing to the middle in those circumstances.  So there’s a lot about our system that is producing the polarization that we’re seeing, and I think unfortunately it’s – the changes that are needed are a ways away. 

MODERATOR:  Okay.  I think we have time for one more question.  I’ll call on Pearl Matibe from Swaziland News.  Pearl.   

QUESTION:  Hi.  Thank you so much for taking this last question, Rebecca.  I just want to maybe ask you about definitions.  Gerrymandering and redistricting – is that used interchangeably?  My understanding is that gerrymandering is really about drawing a legislative district in such a way to give one political party a disproportionately larger share of the seats. And if we’re talking about a healthy democracy, how can the electorate look at either gerrymandering or redistricting, whichever way you want to define it, as a fair and democratic process?  So where does that legislative democracy nexus come into play so people actually feel like this is a fair process?   

MS GREEN:  Yeah. 

QUESTION:  I’m trying to glean what lesson could we in Swaziland learn from your process, and maybe tell us a little bit about where did this whole concept originate.  Why do we even have it? 

MS GREEN:  Yeah, great question.  So redistricting, just definitional – from the definitional question, redistricting refers to the process of drawing the lines, so there’s not – there’s no value judgment.  It’s just – redistricting is what we do every 10 years here in the United States after the U.S. Census is released.  Gerrymandering has a pejorative sort of slant, and there are two types of gerrymandering that we see in the United States.   

The first is partisan gerrymandering, which is just what you described where you – a typical example is where you have a minority party retaining power by drawing lines in such a way that it’s able to retain a majority power in a legislature.  And then we have racial gerrymandering, which is – we saw very overt examples of that in the 1960s.  There’s a famous case in – from Tuskegee, Alabama where the municipal lines were drawn to exclude, I think, all but four black voters from the municipality.  And so that was a racial gerrymander where race was being used to prevent minorities from having a voice in the political process.  

And so in terms of how the process can be structured to provide faith that it is fair and that it’s reflecting democratic principles, I think we’ve come a long way on the technology side in terms of evaluating what maps actually do.  So PlanScore, like I showed you, also the Princeton gerrymandering project, and a project out of Tufts – all three of those organizations are using data to help translate for the public what maps actually accomplish.  Are they competitive?  Do they give one party power over the other unfairly?  Are they protective of minority voting rights?  And I think those kinds of data projects are really making a difference in terms of translating what legislators are doing, because in the past a map could be published, but it would be very hard to tell whether or not that map – what impact that map was going to have.  And I think we’re seeing this round data being leveraged to really help translate what is actually happening.  

But the big question is whether anyone’s paying attention, first of all, and second of all, whether people care enough about the redistricting process or understand the redistricting process, even when presented with greater information, to sort of act or push for reforms or otherwise address gerrymandering that’s happening.  So it’s a question at the end of the day, I think, of public will for reform. 

MODERATOR:  And with that, we have come to the end of our time today and conclude today’s briefing.  As a reminder, the transcript and video will be posted later today on our website.  On behalf of the U.S. Department of State and Washington Foreign Press Center, I’d like to thank Professor Green for giving her time today to brief the foreign press.  Thank you and good morning. 

MS GREEN:  Thanks.