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Dr. Brigid Callahan Harrison. (Photo: Kevin Sanders for the New Jersey Globe)

Statements of Brigid Callahan Harrison, Ph.D. on legislative and congressional redistricting

By Brigid Callahan Harrison, November 17 2021 8:34 am

The following is a full text of testimonies delivered by Montclair State University political science professor Brigid Callahan Harrison of legislative and congressional redistricting —

New Jersey State Legislative Apportionment Commission on November 16, 2021, at Stockton University’s Atlantic City Campus:

Mr. Chairman and Members of the Commission,

I am testifying as a resident of the Borough of Longport in Atlantic County, New Jersey in the second legislative district. In 2020, was an unsuccessful primary candidate for the second congressional district seat. I am also a professor of Political Science and Law at Montclair State University, where I serve as department chair. My research interests over the past 25 years have centered on congressional elections and the reapportionment and redistricting process, and I am grateful to have the opportunity to speak before you this afternoon.

Much of the testimony during the course of these hearing centers on the desire of constituents to remain in their specific legislative district, being represented by their state legislators.

However, I want to call your attention to the importance of the role that legislative redistricting plays in assuring that the principle of “one person, one vote,” as outlined in Baker v. Carr,[1] Wesberry v. Sanders[2], then Reynolds v. Sims[3] are consistent with interpretation of the Voting Rights Act and the Equal Protection clause of the 14th Amendment. Particularly in today’s political climate, it is imperative that you ensure that all of New Jersey’s diverse voices are heard and that the principle of “one person, one vote” is truly implemented. In Wesberry, Associate Justice Hugo Black held that Article One of the Constitution required that “as nearly as practicable one man’s vote… is to be worth as much as another’s.”[4]

In the 2021 New Jersey state legislative elections, 32 of the 40 state senate seats of both political parties were won by incumbents receiving more than a 10 percent plurality over their opponent. In several districts, the margin was in excess of 30 percent.

I know that many of you would like to argue that these incumbents are doing your jobs so well that your constituents are incredibly satisfied with your job performance, and so return you to office with these large margins. But we all know that, of all the advantages that incumbents have – name recognition, larger campaign war chests, and so on, the drawing of district boundaries to overwhelming favor one party or the other. And today, using GIS mapmaking technology, these partisan gerrymandered districts can be drawn in much more sophisticated and certain manners than in decades past.

There are numerous problems associated with the creation of such a large number of “safe seats.” Districts that are so partisan gerrymandered feed into a national political culture in which partisan extremism is valued over moderation, in which intraparty factionalism replaces partisan competition, and bi-partisanship is rare and ridiculed.

But for your purposes, importantly, the net impact of partisan gerrymandering is a violation of the principle of “one person, one vote.” In Davis v. Bandemer,[5] the Supreme Court has ruled that partisan gerrymandering claims are justiciable under the Equal Protection Clause.

When partisan voters are packed in legislative districts, the net effect is that the impact of their votes are diluted, presenting a structure that is potentially in violation of Article One of the US Constitution. When minority voters are packed into legislative districts, the net effect is that the impact of their votes and influence as a community is diluted, presenting a structure that is potentially a violation of the Equal Protection Clause.[6]

That is why I am urging you, Judge Carchman, to urge the members of this commission to create maps using a standard of partisan fairness.

In creating these maps, commission members should use one of the accepted metrics to gauge partisan fairness. [7]  Using a mean-median difference score, which compares the average district’s vote-share to the median district’s vote-share to find partisan asymmetry across the legislative district plan is a simple but elegant solution.[8] If the mean district vote share is significantly higher than the median district’s vote share, the plan likely cracks and packs voters of one party. The goal is to get the difference as close to zero as possible.

But perhaps more appropriate for New Jersey is the use of the efficiency gap (EG),[9] which compares what it calls “wasted votes” – the votes for the losing party and the votes for the winning party is excess of 50%+1 – to test for unequal outcomes. The EG then takes the number of wasted votes divides by the total number of votes to see how efficiently votes were spread across the district map. An EG score of over 8% is considered evidence of a gerrymander. In New Jersey’s over 75% of our current legislative districts have an EG score over 8%.

Whatever methodology the commission uses, I would urge you to ensure that votes cast by New Jerseyans are not wasted to ensure some standard of partisan fairness, but most importantly to ensure that the diversity of voices of the voters of the State of New Jersey are heard.

Thank you.

[1] 369 U.S. 186 (1962)

[2] 376 U.S. 1 (1964)

[3] 377 U.S. 533 (1964)

[4] 376 U.S. 1 (1964)

[5] Davis v. Bandemer, 478 U.S. 109 (1986)

[6] Grofman, Bernard and Gary King. 2007. The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering after LULAC v. Perry. Election Law Journal. 6:1

[7] Wang, Samuel. 2016. Three Tests for Practical Evaluation of Partisan Gerrymandering. Stanford Law Review. 68: 1263- 1321

[8] https://arxiv.org/pdf/1505.06749.pdf

[9] Stephanopoulos, Nicholas O. and Eric M. McGhee. 2015. Partisan Gerrymandering and the Efficiency Gap. University of Chicago Law Review. 82:831.

 

New Jersey Congressional Redistricting Commission on November 15, 2021 at Rowan University:
Mr. Chairman and members of the Commission,I am testifying as a resident of the Borough of Longport in Atlantic County, New Jersey in the second congressional district, where in 2020, I was an unsuccessful primary candidate for that congressional seat. I am also a professor of Political Science and Law at Montclair State University, where I serve as department chair. My research interests over the past 25 years have centered on congressional elections and the reapportionment and redistricting process, and I am grateful to have the opportunity to speak before you this evening.Throughout these hearings, you have heard testimony – both organic and arranged – from constituents urging you to protect their member of the House. Rest assured that that will not be the theme of my remarks this evening.Rather, I wanted to call your attention to the importance of the role that redistricting plays in fomenting the partisan tensions and vitriol that are threatening our democracy, and urge you to act in a manner that serves to protect democracy rather than specific incumbents. While considerations of equal population consistent with interpretation of the Voting Rights Act and the Equal Protection clause of the 14th Amendment, contiguity, and compactness must be part of your deliberations, I would urge you also to allow competitiveness to be a factor in your decision-making.The effect of true partisan competitiveness on a healthy democracy cannot be overstated: competition means that voters become better informed. Competition results in higher voter turnout.[1] It provides an a method of legitimizing the elected representatives,”[2]  and therefore increases efficacy among voters. Competition checks corruption,[3] and perhaps most importantly, competition mediates the behavior of incumbents, incentivizing members to work on a bipartisan basis.In recent decades, we have seen the culmination of two forces on our democracy – the increasingly sophisticated partisan gerrymandering made possible with GIS mapmaking technology, and the self-sorting of American voters into homogenous distributions of like-minded voters, convinced of the rightness of their ways and the wrongness of others’.[4]

The result of intentional and unintentional gerrymandering has been that the number of competitive House districts in the United States has declined drastically. Using the Cook Political Reports PVI range of a D+5 to an R+5, the number of “swing seats” has declined from 164 in 1997 to 78 today.[5] The number of R+5 has increased from 148 to 192 during that same time period, while the number of D+5s has increased from 123 to 165.[6] When narrowing the PVI range, the number of truly competitive House races in the United States in 2020 dropped to 27—two of which were in New Jersey (in the CD2 in which the incumbent won by 4.7 percent and in the CD7).[7]

When using FairVote’s methodology, which relies exclusively on prior voting patterns to make its predictions, partisanship has become the primary determinant of electoral outcomes, outweighing other factors including incumbency, money, name recognition, and candidate quality.[8]

What this means is that typically, using this modeling, it is possible to predict the outcome of 82 percent of House races with a 99.7% percent accuracy before an opponent has even declared their candidacy.

We know that today, voters are less likely to split their tickets, and only 16 congressional districts could be categorized as “cross over” districts, where voters voted for a presidential candidate of one party and a House candidate of the other. Just four years ago, there were double the number of cross over districts. In 1996, there were nearly seven times as many.[9]

Those representing crossover districts – those nine Republicans in districts that Biden carried and seven Democrats in districts Trump carried – inevitably will be top targets of the opposing party’s congressional campaign committees.

The result of lack of competition is clear: Candidates and House members are penalized for bi-partisanship, inclusion, compassion, and moderation. They are rewarded for vitriol and divisiveness. We get a polarized political system, where candidates embrace and are rewarded for hyper-partisanship and extremism, where our Capitol is violently stormed, and where undermining the legitimacy of our elections is commonplace.

I am not suggesting that New Jersey’s congressional districts be designed in a manner that would create 12 competitive districts. And I know that many of the members of this commission will argue for minimal disruption – a reality that will likely not be possible at the end of the day.

What I am suggesting is that true competitiveness – that is, districts that are drawn as close to the 50-50 mark as possible and are not drawn as “lean” districts – play an incredibly important role is fostering tolerance and bi-partisanship, in creating opportunities for dialogue among citizens of the opposite party, of creating candidates and House members who strive to address the needs of their constituents, rather that kowtow to the demands of party leaders in Washington, DC.

And so, Justice Wallace, I speak to you when I urge you not to be the “tie-breaker” on this commission, not merely to pick from the partisan menus presented to you that look out for the parochial interests of this House member or that political party. Instead, I urge you to be the independent member, the sole person on the commission charged with protecting the polity, and the voters – even those who may think that they want a gerrymandered map favoring their member – and encourage the members of this commission to present you with maps that include a significant number of truly competitive districts, which will serve the interests of the voters, the state, and our democracy.

Thank you.

[1] Blais Andre. 2000. To Vote Or Not To Vote? The Merits and Limits of Rational Choice. Pittsburgh: University of Pittsburgh Press.

[2] Issacharoff, Samuel. Why Elections? Harvard Law Review. (2002). 16:684-85.

[3] Rose-Ackerman, Susan. 1999. Political Corruption and Democracy. Connecticut Journal of International Law. 14(2): 363–78

[4] Chen, J., Rodden, J. (2013). Unintentional gerrymandering: Political geography and electoral bias in legislatures. Quarterly Journal of Political Science, 8:239–269.

 

[5] https://cookpolitical.com/analysis/national/pvi/introducing-2021-cook-political-report-partisan-voter-index

[6] From Cook Political Reports, regarding PVI calculations in 2020 with high VBMS: “Notes about PVI Data & Methodology: Following each election and round of redistricting, presidential results are compiled to generate PVI scores for each congressional district. In a few states, these results are aggregated by district by state and/or local election authorities. However, in others they are not, and the reported election results do not account for some votes that are reported centrally and not redirected back to the voter’s precinct. The record-shattering numbers of early and absentee ballots cast in 2020 compounded the challenge of allocating presidential results to districts in some states. Dave Leip’s Atlas of U.S. Presidential Elections used best estimates in the case of split precincts and counties, splitting unallocated presidential votes in proportion to the party vote totals for congressional candidates where applicable.”

[7] https://www.270towin.com/2020-house-election/cook-political-2020-house-ratings

[8] https://fairvote.app.box.com/s/uk2w2hklbg79maypvdx1ofntmr6jggcp

[9] https://cookpolitical.com/analysis/national/pvi/introducing-2021-cook-political-report-partisan-voter-index

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