This past year, Americans have been paying an unusual amount of attention to redistricting, as states adjust congressional district boundaries to accord with the 2020 Census. The political stakes are high, given a host of factors: a narrow Democratic majority in both houses of Congress; state legislatures that are overwhelmingly controlled by one party; an increased minority population; and federal courts that have declined to limit partisan districting. As a result, many state legislatures are drawing districts that would make it easier for the dominant party to win seats. With fewer competitive districts, incumbents worry more about losing primaries than general elections.
To combat rampant gerrymandering, Sen. Joe Manchin III (D-W.Va.) and others have introduced the Freedom to Vote Act (FTVA). If passed, this bill would block the most extreme gerrymanders until courts complete a full review. If it were in place now, it would significantly change redistricting for the 2022 elections, our research finds.
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How the FTVA would work
Under the FTVA, a congressional redistricting plan is presumed biased if it gives one party an advantage of more than 7 percent of a state’s House seats or in one congressional district, whichever is greater, using partisan fairness metrics. In practice, this means a map is considered biased if a party would be likely to win more seats than you would expect from its share of the state’s votes.
Consider North Carolina’s existing district map. In the 2020 elections, Republican candidates won eight of the 13 seats in the state, or 61.5 percent, while Donald Trump won 49.9 percent of the vote. The state’s newly drawn map creates 10 districts — or 71 percent of the district total — that Republican candidates will almost certainly win, even if they still won only 55 percent of the statewide vote. That imbalance would trigger the FTVA’s presumption of gerrymandering.
If two or more of the four previous presidential and Senate elections delivered results this unbalanced, the FTVA would enable any interested party to sue. Then the map couldn’t be used until and unless the state proved in court that it was not unbalanced — showing, for instance, that it is not possible to draw a more neutral plan.
The new census numbers kicked off redistricting. That’s even more complicated than you may think.
How would the FTVA work with the latest district maps?
To see how this would work, we applied that test to 23 states’ new congressional maps, using only states with more than two districts. To figure out whether a party would almost certainly win in a particular district, we used a short version of what political science calls “the efficiency gap,” a commonly used tool for evaluating whether state maps are fair. The idea is that an “efficient” district distributes voters in a way proportional to their share of the state; in these districts, neither party wins by an overwhelming margin. By contrast, a biased map would pack supporters of one party into a small number of districts that their candidates win overwhelmingly — while the other party wins a larger number of seats with smaller victory margins.
Most redistricting plans drawn by state legislatures fail the FTVA’s standards
We found that states where Republicans control the state legislatures draw congressional maps that disproportionately favor Republican candidates. For instance, in Georgia, North Carolina, Ohio and Texas, Republican candidates are likely to win more seats than if they won seats in proportion to their share of the statewide vote. The Ohio map, for example, makes it likely that Republicans will win two more seats than you would expect, given that in the elections since 2016, 55 percent of voters pulled the lever for Republicans and 45 percent for Democrats.
Indiana, Iowa and Utah, where Republican-controlled legislatures draw the maps, will likely have similar results, with Republican candidates winning one more seat than you would expect from their proportion of the vote. Under the FTVA, if someone brought suit and the federal courts couldn’t assess the map before the state’s 2022 primaries, the courts would have the power to put in place a temporary map or postpone the primary.
Democrats do the same when they draw maps. In blue states such as Maryland, Massachusetts and Oregon, Democratic-controlled legislatures draw maps that are just as likely to tilt districts to their party’s advantage. For instance, Illinois’ map is a mirror image of North Carolina’s, drawn to systematically advantage Democrats — likely giving them about 2.5 more congressional seats than their usual proportion of statewide votes would suggest.
Independent commissions draw fairer maps
In some states, however, commissions draw the maps. Four states — Arizona, California, Colorado and Michigan — have created commissions that draw districts independently from the legislature. Our analysis finds that the commissions in California, Colorado and Michigan successfully balanced various competing criteria and created the most balanced maps of the cycle so far. The plan in Arizona would trigger the FTVA’s presumption, though the independent commission there might be able to rebut that presumption.
The New Jersey commission — where 12 of the 13 members are appointed by legislative and party leaders — is not independent in the same sense as the commissions in these other states. It may be no surprise, then, that we find the New Jersey congressional map would trigger the FTVA presumption of partisan bias. The court-drawn map in Virginia, by contrast, would not trigger the FTVA.
Legislatures often fail to draw fair maps, no matter which party is in control. We’ve now evaluated 17 maps drawn by legislatures; 12 favor the party in control in ways that, under the FTVA, would put the maps in court. That’s a failure rate of more than 7 out of 10.
Independent commissions, however, can achieve the FTVA’s objectives of fair districting without going to court.
In 2019, in Rucho v. Common Cause, the Supreme Court ruled that federal courts could not hear claims challenging partisan gerrymanders. In his majority opinion, Chief Justice John G. Roberts Jr. wrote that while the Supreme Court would not create a judge-made anti-gerrymandering standard, “the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.” The FTVA would take Roberts at his word.
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Peter Miller is a researcher in the Democracy Program at the Brennan Center for Justice at the NYU School of Law.
Anna Harris is a master’s student in the Wagner School at NYU and a Parke Fellow at the Brennan Center for Justice.