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Commentary

Redistricting Reform: Back on the Agenda

This piece, co-authored with Brad Smith of Capital University, originally appeared on November 18 in the Columbus Dispatch under the title "Ohio must get rid of gerrymandering." Anyone who knows our work knows that we don’t agree on much. We don’t even agree a whole lot about the substantive topic that underlies this op-ed: how legislative districts should be drawn and how large a problem partisan gerrymandering is. Yet we do agree on one important procedural point: legislative districts should be drawn by an independent, nonpartisan commission. Our decision to co-author this comment was prompted by a conversation we had about the delegation that Ohio elected to the U.S. House of Representatives on November 7th. The basic fact, assuming that Deborah Pryce and Jeanne Schmidt hold on to their seats [the latter of which AP has now called in Schmidt's favor although her opponent has not yet conceded], is that Ohio will send 11 Republicans and 7 Democrats to Congress in January. But overall in Ohio 1.97 million votes were cast for Democratic candidates for Congress, whereas only 1.78 million votes were cast for their Republican opponents. In other words, Democratic candidates received about 200,000 more votes—and won the state’s total popular vote for the House by a 52.5% to 47.5% margin—but Republican candidates won 4 more seats. We don’t dispute these facts. Instead, we disagree about their significance. One of us thinks they don’t demonstrate much of a problem, while the other considers them evidence of partisan subversion of the public interest. The argument that this gap between the percentage of votes and the percentage of seats is no big deal rests on the observation that a shift of fewer than 10,000 votes in three districts—not enough to materially alter the overall statewide voting percentages— would have led to the Democrats winning 10 congressional races, or 56% of the seats, with 52.5% of the statewide congressional vote. Thus, according to this argument, the lopsided edge Republicans will enjoy in the state’s next congressional delegation has less to do with gerrymandering than with the fact that Republicans won all three of the state’s close races. Had the Democrats won even two of those close races, with a shift of just a few votes, they would have won seats in proportion to their total statewide vote. Minor deviations in close races are to be expected in any districting system, and do not indicate any systemic unfairness. The opposing view argues that, had these three districts not been drawn by Republicans to increase their party’s advantage, Democratic candidates probably would have run in more favorable districts, enabling them to win at least two of these seats. It is no accident that Democrats came close in these three districts because they overlap substantially with two of Ohio’s three largest cities, Columbus and Cincinnati. Deborah Pryce’s district has a large chunk of Columbus, but not all of it, and Cincinnati is split between Schmidt’s and Rep. Steve Chabot’s. Had the mapmaker kept these cities intact as much as possible (given the obligation to comply with overriding principle of one-person-one-vote), then at least two of these districts would have been more friendly territory for Democratic candidates. Instead, Republican mapmakers divided these cities into separate districts and combined them with Republican-leaning outlying areas, making it easier for Republican candidates to win a disproportionately large share of congressional seats. We could go round and round on who has the better of this argument. The point is that we, and others like us who debate the substance of districting, need a way out of this endless dispute. Our exit strategy is the adoption of an independent nonpartisan commission to draw the district lines. If, under an independent commission’s plan, Democrats take only 7 out of 18 congressional seats despite winning a majority of congressional votes statewide, so be it. That result would be the outcome of a process structured to be fair to both Democrats and Republicans. The same would be true if Republicans won fewer seats than their overall statewide vote total would suggest. When districts are drawn by partisan mapmakers, however, there will always be the suspicion that the plan was unfairly drawn to help one party. The value of a process that is perceived as fair is a familiar—and intuitive—one. As the philosopher John Rawls observed, if two individuals must share a piece of pie and each wants half, the outcome will be fair as long as the person who slices the piece must take the second slice. There are different ways to design an independent commission. This op-ed is not the place to discuss these details. Our point, rather, is that some form of neutral commission should replace the current system, so that one party is not allowed both to slice the congressional pie and to choose which piece it will enjoy. At the same time, a party that wins fewer legislative seats than it thinks it should have will no longer be able to complain that the districting process was rigged against it. Last week’s election demonstrates the benefits of an independent districting commission, not because results were necessarily unfair (that conclusion would be to take one side of the debate between us), but because mapmaking controlled by one party necessarily exposes the map to charges of unfairness. Even as this election shows the value of reform, it provides an opportunity to achieve it. At this point, neither party knows for sure who will control the state’s reapportionment process in four years. The current General Assembly remains in Republican hands, while the new Governor is a Democrat. As an early exercise of bipartisan cooperation, the General Assembly and the Governor should forge a plan for an independent commission to draw the state’s congressional map after the next census, in 2010. In addition to adopting a procedural reform that is fair and worthwhile, doing so just might foster additional bipartisan undertakings for the benefit of Ohio.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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