The Road to Better Redistricting: Empirical Analysis and State-Based Reforms to Counter Partisan Gerrymandering NOAH LITTON* RedistrictingI stands at the heart of our notions of representative democracy because it serves as a key mediating factor between voters' preferences and electoral outcomes, determining, in large part, how well citizens are represented. Meaningful reforms are needed now more than ever to correct problems that stem from partisan gerrymandering. This Note endeavors to provide legislators, policymakers, and election reform advocates with a greater empirical understanding of redistricting reform proposals and their effect on the electoral process. By analyzing 4,422 district-level elections, conducted under three different redistrictingprocesses, held over the course of twenty years, this Note also provides a clear roadmap for reform. As displeased voters increasingly turn their attention toward legislative, rather than judicial remedies, they should pursue nonpartisan redistricting commissions that utilize a combination of citizen participationand legislative endorsement of proposed district maps. These reforms will best increase electoral responsiveness and reduce partisan bias in elections. TABLE OF CONTENTS 1. IN TRODUCTION .............................................................................. 840 I. FAILED JUDICIAL RESPONSES TO PARTISAN GERRYMANDERING... 844 A. EstablishingJusticiability: The Bandemer Standard............. 844 B. An Unworkable Standard: Backtrackingfrom Bandemer ...... 846 C. State Responses to JudicialAcquiescence: The Compelling Needfor RedistrictingReform ................................................ 848 III. EMPIRICAL ANALYSIS OF PARTISAN, BIPARTISAN, AND NONPARTISAN REDISTRICTING ...................................................... 850 A. ElectoralResponsiveness and PartisanBias .......................... 851 B. ProceduralApproaches to Redistricting: Ohio, Pennsylvania, and Iowa as Examples ..................................... 853 1. PartisanRedistricting-Ohio ........................................... 854 2. BipartisanRedistricting-Pennsylvania ........................... 855 3. NonpartisanRedistricting-Iowa ..................................... 856 * J.D. Candidate, The Ohio State University Moritz College of Law, expected 2013. This Note was the recipient of the Donald S. Teller Memorial Award for the student writing that contributed most significantly to the Ohio State Law Journal. Special thanks go to Professors Jan Box-Steffensmeier and Daniel P. Tokaji for their time and patience with this project. The greatest thanks go to my wife, Stacey. You are an amazing partner. I This Note refers to "redistricting" or "congressional redistricting" throughout, but the research, findings, and proposals apply interchangeably to state legislative redistricting. OHIO STATE LA W JOURNAL [Vol. 73:4 C. The Analysis: HarnessingData to Improve Our Politics....... 856 1. The Data: State House Elections in Ohio, Pennsylvania, and Iowa from 1990-2010 ................................................857 2. Methodology: The Hypothetical One-Year Swing R a tio ..................................................................................8 5 8 D. The Results: NonpartisanRedistricting Processes Lead to Optimal Outcom es ..................................................................861 1. NonpartisanRedistricting ................................................. 862 2. BipartisanRedistricting .................................................... 864 3. PartisanRedistricting ....................................................... 866 IV. A ROADMAP FOR REFORM: NONPARTISAN REDISTRICTING, CITIZEN PARTICIPATION, AND LIMITED LEGISLATIVE O VER SIGH T ....................................................................................869 A. Composition of the NonpartisanRedistricting Commission... 869 B. Procedurefor Enacting a RedistrictingPlan .........................873 1. The NonpartisanRedistricting Commission's "Best Effort" M ap .............................................................874 2. Citizen Participation:The Public Redistricting Com p etition....................................................................... 874 3. Limited Legislative Oversight and Approval ....................875 4. A Self-Executing Provision............................................... 875 V . C ON CLU SION ..................................................................................877 APPEN DIX ...............................................................................................879 Figure 6: A Tale of Two CongressionalMaps ..............................879 Table 1: ElectoralResponsiveness and PartisanBias Data......... 880 I. INTRODUCTION The year 2011 marked a new low in American politics on two distinct fronts. In Washington, D.C., hyper-partisanship and congressional gridlock led to one of the least productive and most intransigent legislative sessions in recent history 2-a year riddled with high-stakes showdowns on everything from appropriations and debt-ceiling authorizations to short-term tax cuts and routine agency-level appointments. 3 Meanwhile, in state capitals across the country, legislators and redistricting commissions grappled with the decennial task of 21Ben Pershing, For Congress, Productivity Slides Downhill, WASH. POST, Dec. 6, 2011, at A29. 3 For a small sampling of congressional gridlock, see Editorial, Chipping Away at Gridlock: Senate Democrats Vote to Fight Back Against Endless Republican Delaying Tactics, N.Y. TIMES, Oct. 11, 2011, at A26; David Nakamura & Ylan Q. Mui, Obama Blasts GOP Filibuster of Consumer Agency Choice, WASH. POST, Dec. 9, 2011, at AI; Jennifer Steinhauer, Brinkmanship Again at Fore in the Capitol: PartiesAgree on Goal, but Not Path to It, N.Y. TIMES, Dec. 15, 2011, at Al. 2012] THE ROAD TO BETTER REDISTRICTING redrawing congressional district boundaries.4 The results were equally vitriolic and dysfunctional. In Ohio, a Republican congressional gerrymander sparked threats of a referendum and the specter of two separate primary elections which would have cost the state an additional fifteen million dollars. 5 Crisis was averted after four months of legislative wrangling and a last minute, face-saving compromise for both sides.6 In Arizona, the Governor called the state senate into special session and took the unprecedented step of impeaching the chairwoman of the state's Independent Redistricting Commission after the Commission--created by citizen initiative just eleven years earlier to remove politicsfrom the process- submitted its proposed congressional map. 7 The Arizona Supreme Court averted a constitutional crisis and restored the chairwoman to her post a mere three hours after entertaining arguments. 8 Other states, including Texas and New York, fared no better, dumping case after case into the laps of federal and state 9 courts to adjudicate on compressed, election-driven time frames. This Note proceeds with the assumption that reforming the latter problem of congressional redistricting and the ever-present partisan gerrymander will simultaneously help address the former problems of hyper-partisanship and gridlock within the federal government. 10 Districts drawn with the express purpose of favoring one political party (or incumbent legislator) naturally lead to uncompetitive and uncontested general elections, putting a greater emphasis 11 on the primary election, which will determine the favored party's nominee. 4 Jennifer Steinhauer, For Republicans, Redistricting Offers Few Gains, N.Y. TIMES, June 12, 2011, at A22. 5 Aaron Marshall, No RedistrictingDeal Yet, but Talks Are Continuing, PLAIN DEALER (Cleveland), Nov. 17, 2011, at B2. 6 Editorial, A RedistrictingPost-Mortem, PLAIN DEALER (Cleveland), Dec. 18, 2011, at G2. 7 Mary Jo Pitzl, Redistricting Chief Ousted: Legal Battle Looms over Redrawing of PoliticalMaps, ARIZ. REPUBLIC, Nov. 2,2011, at Al. 8 Ariz. Indep. Redistricting Comm'n v. Brewer, 275 P.3d 1267, 1278 (Ariz. 2012); Mary Jo Pitzl, Redistrict Chief Reinstated: Arizona Supreme Court Reverses Brewer's Removal of Mathis, ARIZ. REPUBLIC, Nov. 18, 2011, at A 1. 9 See Justin Levitt, Litigation in the 2010 Cycle, ALL ABOUT REDISTRICTING, http://redistricting.lls.edu/cases.php (last visited Oct. 23, 2012) (showing that redistricting litigants filed 194 separate actions as a result of the 2010 redistricting cycle); see also Manny Fernandez, New Delay Is Possiblefor Primary in Texas, N.Y. TIMES, Feb. 16, 2012, at A22; Thomas Kaplan, Group Sues over Albany Redistricting, Saying '12 Elections Are in Jeopardy, N.Y. TIMES, Nov. 19, 2011, at A16. OSee Justin Levitt, Weighing the Potential of Citizen Redistricting, 44 LOY. L.A. L. REV. 513, 520 (2011); cf SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 1 (3d ed. 2007) ("[I]nstitutional arrangements ... influence the range of possible outcomes that formal elections and subsequent policymaking can achieve."). 1 1 DOUGLAS J. AMY, REAL CHOICEs/NEW VOICES: How PROPORTIONAL REPRESENTATION ELECTIONS COULD REVITALIZE AMERICAN DEMOCRACY 57-63 (2d ed. OHIO STATE LA W JOURNAL [Vol. 73:4 This reduces the universe of voters who ultimately determine who goes to Congress and who stays home-a significant problem if the government is to truly be "by the people."' 12 Worse yet, this process forces candidates toward the ideological fringes in order to survive primary elections. 13 It seems axiomatic that drawing politically extreme congressional districts