Testimony of FairVote - The Center for Voting and Democracy

Devin McCarthy, Research Fellow and Drew Spencer, Legal Fellow

HB 233

Presented to Rules and Executive Nominations Committee, March 11, 2013

About FairVote

FairVote - The Center for Voting and Democracy is a non-partisan, non-profit thinktank and advocacy organization working since 1992 on reforms ranging from election administration to electoral systems. Based in Takoma Park, FairVote works locally, statewide and nationally. FairVote has advised non-governmental organizations and policy-makers at all levels on the conduct of elections including U.S. Representative John Tanner on the Fairness and Independence in Redistricting Act (2005) and U.S. Representative Cynthia McKinney on the Voters' Choice Act (1999).

Summary

FairVote supports HB 233 and the creation of a Study Commission on the Redistricting Process in Maryland. We believe that the Study Commission should examine use of non-winner-take-all election methods within current districts. Independent redistricting plans can avoid efforts to put partisan interests above the public interest, but inevitably result in conflict among important values such as voter choice, geographic compactness, racial fairness, representation of women, and leadership accountability. If given the authority to implement candidate-based forms of proportional representation in multi-member districts, however, independent redistricting commissions would be able to achieve all of these goals in creating districting plans for Maryland.

Expectations About Legislative Districts

In general, there are four categories of criteria we would like to satisfy when settling on a districting plan. One is aesthetic; how does it look on a map? A district that looks gerrymandered seems intuitively unfair; it looks like, during its construction, some other concern took precedence over having genuine competitions for office. This was Justice Sandra Day O'Connor's concern inShaw v. Reno (1993) when she argued that a majority-minority district in North Carolina was "so bizarre" that the map must be held to strict scrutiny. Furthermore, districts preserving local political jurisdiction lines establish a more coherent political experience for voters.

Another set of criteria necessarily leads to the purposeful creation of 'safe' districts. A critically important goal of elections is fair representation of different viewpoints and different communities. It seems intuitively wrong to divide pre-existing communities of interest exhibiting relatively cohesive voting patterns. It is illegal under the Voting Rights Act in certain protected districts to dilute racial minority voting strength by dividing those populations among other districts. It seems unfair to punish a several-term incumbent by eliminating his or her district solely because 'rampant incumbency' is in the public eye. From a more technical perspective, safer districts minimize wasted votes; the more people who vote for winning candidates, the fewer voters walk away from the polls with their ballots not having mattered.

At the same time, it's important to have 'in play' districts, both so that voters have real choices and a reason to vote and so that they can hold their elected leaders accountable. Incumbency rates are very high in Maryland. Some districts are so noncompetitive that challengers have stopped running, and parties have chosen to ignore them in favor of concentrating on districts where resources might be more effectively used to target voters. Overly safe districts, moreover, can mean a lack of accountability; the representative is beholden to no one if he or she has minimal concern about losing the next election. Leaders can act with impunity if they know they are almost impossible to displace from power through elections.

What Independent Redistricting Can Confer

Independent redistricting can be a useful tool for ensuring fairer, more legitimate legislative elections because it takes overt partisanship out of the process. It can prevent the partisan gerrymandering efforts seen in several states in the 2011-2012 redistricting process, which had substantial effects on the partisan composition of the U.S. House of Representatives and several state legislatures.

The intrinsic value of independent redistricting is the public legitimacy it brings to legislatures and legislative elections; voters have the sense that elected officials have not determined election outcomes before elections are even held. Its instrumental value is that it makes redistricting processes capable of giving fair consideration to criteria other than the benefit of the dominant party. Independent commissions can draw safer districts where the Voting Rights Act and historical communities of interest compel them to do so. They can ensure a proportion of in-play districts where voting behavior is somewhat predictable but populations are more heterogeneous. They can endeavor to minimize "bizarre" looking districts.

What Independent Redistricting Cannot Confer

Independent redistricting processes cannot achieve all of the desirable goals listed above for every voter or likely even for most voters while operating under the structure of winner-take-all elections. Each of the criteria may be met by some districts, but few if any districts will meet all the criteria.

A geographically compact district is not necessarily competitive, nor does it preserve a contiguous community of interest or color. A competitive district, by definition, cannot guarantee one group the ability to elect a candidate of choice. A competitive district, by definition, will maximize wasted votes. The ideal competitive district is one that, based on historical voting patterns, is drawn to contain equal numbers of voters from either major party. In any given election, roughly half the voters in that district will have wasted their votes and be effectively without representation. Voters in safe districts, meanwhile, will have little chance to affect election outcomes. Safe districts are the price of maximizing effective votes.

The cases of states that are currently using independent redistricting demonstrate that several of the above qualities are mutually exclusive. Arizona, for instance, had very few competitive elections in the decade after its independent redistricting was established in 2002. When it had more competitive elections in 2012, Democrats won one more congressional seat than Republicans while receiving fewer votes; its representatives were thus not accountable. Despite its use of independent redistricting and the Top Two primary system, California has a high rate of noncompetitive elections, with over 90% of state and federal legislative races decided by a greater than a 5% margin in 2012, and only four of 53 districts with a partisan balance that will lead them to be consistently competitive in the general election.

In Iowa and Arizona, two of the states garnering the most attention for independent redistricting, women have done quite poorly since its adoption. In fact, a woman has never represented Iowa in Congress, and women have only won six of Arizona's 49 House races since the adoption of independent redistricting in the state. While more accurate representation of women may not be a conventional districting criterion, women as a group remain severely under-represented at all levels of government in the United States.

Multi-seat Districts with Fair Voting

Fair voting systems - that is, alternatives to winner-take-all elections based on voting for candidates in multi-seat districts - have a long history of use in municipal and even state legislative elections in the United States. As one example, New York City was one of two dozen American municipalities using such a format to elect its city councils during the Progressive Era. Illinois elected its state legislature in three-seat districts using a fair voting system from 1870 to 1980, with the result that fewer votes were wasted; downtown Chicago districts would elect one Republican and districts in DuPage Country would elect one Democrat.

Under fair voting in a three-seat district, each candidate needs to win just over a quarter of the vote to earn a seat and just over half the votes to win two. By contrast, in a winner-take-all district, a group needs to equal over 50% of the population to be guaranteed the opportunity to win representation. The benefit of fair voting in multi-seat districts is straightforward: it can allow an independent redistricting commission to meet more criteria simultaneously for the same district and the same voters. For example, a geographically compact district can be drawn that ensures a VRA-protected community can elect a candidate of choice while allowing the political minority there to cast a meaningful ballot at the same time. Multi-seat districts-already used to elect the Maryland House of Delegates-encourage the nomination of female candidates because parties are more likely to nominate a gender-diverse slate of candidates when multiple candidates are running in the same geographic area. By eliminating the dichotomy between 'safe' and 'in play,' fair voting systems ease the legal and partisan balancing acts independent commissions can face following a census.

Note that there are different fair voting methods that can be used within multi-seat districts. The Illinois House of Representatives used cumulative voting, a system where voters have as many votes as seats and can choose to allocate more than one of their votes to a single candidate. The Goldmark Commission in New York State in the 1990s recommended the one-vote system for elections to a state constitution convention, which would mean that all voters have one vote each to cast in a multi-seat election. The City of New York used choice voting (also known as single transferable vote) for its five city council elections from 1937 to 1945, and choice voting is used today for national elections in Ireland and Australia as well as some local elections in Minnesota and Massachusetts. All fair voting systems are candidate-based and all can be tailored to accommodate the criteria of a fair and effective redistricting plan that are impossible to balance within single-member districts.

FairVote recommends that any redistricting commission be given the power to consider multi-seat district plans with non-winner-take-all election methods. At the very least, such plans should be strongly considered by a study commission on redistricting. We appreciate that the commission created by HB 233 would include representatives from local organizations like ours with expertise in redistricting issues.

We thank you for your consideration of these ideas and suggestions and would be pleased to provide additional information.