opinion

Tired of elections that don't seem fair? Iowa has a better way

What if I told you that Wisconsin Democrats won 52% of votes cast in 2012 Assembly races but only 39% of the seats?

Or that Maryland Democrats regrouped 90,000 voters so that a 20-year Republican incumbent would lose?

Or that an up-and-comer in Chicago didn't get a chance to take on an entrenched incumbent for Congress because politicians in Springfield protected Bobby Rush in 2001 by carving Barack Obama’s home out of Rush’s district?

Increasingly, voters say such shenanigans — known as partisan gerrymandering — are not only unfair but harmful to democracy.

A September poll by The Campaign Legal Center found 71% of likely 2018 voters want the U.S. Supreme Court to set “new, clear rules” to determine when partisan gerrymandering violates the Constitution.

For now, the court had declined to do that. In decisions announced Monday involving challenges to Wisconsin’s Assembly maps and Maryland’s 6th Congressional District, the court punted, sending the Wisconsin case, Gill v. Whitford, back to district court on procedural grounds. Other challenges remain, including one from North Carolina, that could rise to the high court during the next term.

In the meantime, there is a ready solution for nonpartisan mapmaking that Wisconsin legislators could consider.

RELATED: Adventures in extreme gerrymandering

RELATED: Oral argument transcripts in Gill v. Whitford

RELATED: Federal court strikes down GOP-drawn maps

RELATED: Court to Wisconsin Republicans: Redraw election maps

RELATED: More evidence of a skewed GOP map in Wisconsin

Since 1980, Iowa’s nonpartisan Legislative Services Agency has drawn district boundaries for state legislative and congressional seats. The result: a cheaper, speedier, more transparent process than in Wisconsin, one that is broadly seen as fair and nonpartisan.

The Iowa method prompts turnover in the Legislature and competitive districts and seems to translate the will of voters into seats in Congress and the General Assembly. Legislation to adopt the “Iowa model” has been introduced during every session of Wisconsin’s Legislature since 2011 but, so far, has never gotten a hearing during a legislative session.

But though the Iowa approach to this most political of tasks is even-handed, there are limits to what reforming the redistricting process can accomplish. And there are questions about whether the Iowa model can be transplanted to a more diverse state.

The Gerry-Mander

Gerrymandering is as old as the republic. Even before Massachusetts Gov. Elbridge Gerry lent it his name to the process in 1812, politicians were playing games with maps. Patrick Henry, he of "give me liberty or give me death," tried to kill James Madison’s congressional career in the cradle by carving the author of the Constitution out of a House seat in the First Congress. He failed. Gerry's party (the name is pronounced Gary) was more successful: The Democratic-Republicans won 29 of 40 seats in the state legislature after redistricting. Gerry’s own district was so oddly shaped it resembled, at least to one political wag of the time, a salamander. A cartoon published by The Boston Gazette dubbed it “The Gerry-Mander”.

Since Supreme Court decisions in the 1960s, states have been required to redraw congressional and legislative districts once a decade to account for natural movements in the population. The redistricting process has been fraught for years in Wisconsin. Federal courts intervened after the 1980, 1990 and 2000 Census counts when divided state government couldn’t break deadlocks.

But when one party gets its hands on the levers of power, all bets are off. A federal panel of judges found in 2016 that the Wisconsin GOP, using sophisticated computer software, conjured a highly partisan set of Assembly maps in 2011 that were designed to lock in their gains.

This secretive process cost taxpayers millions of dollars in legal fees and led to bitter partisan squabbling that prompted the challenge now before the nation’s highest court.

But in Iowa that year, the Legislative Services Agency devised a set of maps and lawmakers approved them. One and done.

“It has resolved the redistricting issue fairly quickly each cycle,” said Ed Cook, senior legal counsel for the agency. "The legislature has ultimately adopted a plan that was proposed by our agency.”

The Iowa model

Here’s how it has worked in Iowa since 1980 when Republicans pushed through legislation to change how redistricting was done. (They controlled both houses of the legislature and the governor's office at the time):

The Legislative Services Agency is required to submit legislative and congressional maps to the Iowa General Assembly by April 1 of the year after a Census. State law requires districts to be as equal in population as possible, to respect political boundaries by trying not to divide cities and counties, to be contiguous and to be reasonably compact. It is a blind process that cannot favor political parties or incumbents or be used to enhance or dilute the voting strength of minority groups. A five-member advisory commission holds public hearings.

The Iowa legislature is on a tight leash. It must consider the plan promptly and can only vote up or down. And if lawmakers reject the plan, they have to explain why based on the criteria for drawing districts. The agency then submits a second plan, and the same rules apply. An up-or-down vote is called and nothing but “corrective” amendments is allowed.

RELATED: Congressional Research Service looks at redistricting

RELATED: What the Constitution says

If the second plan is rejected, the agency draws up a third plan based on legislative feedback — using those same criteria — and submits it to the General Assembly. Only then can lawmakers draw their own maps — if they reject for a third time the agency’s handiwork.

That's never happened.

The process likely produces more competitive districts, said Tim Hagle, a political science professor at the University of Iowa. I could find no academic work to prove that. Nevertheless, Cook said, in 2011, 14 of 50 state senators had to run against each other and 27 of 100 members of the House.

“We have in the past paired the majority leader of the house with somebody and the president of the senate,” Cook said. “What tends to happen is they sort themselves out. … there generally tend to be more new legislators the election following redistricting.”

Hagle said that is “one of the nice things” about the way Iowa handles reapportionment. In other states, “maybe it's time for you to move on but because you’re not going to be challenged in a primary, you stay around beyond your expiration date.”

“I think it may be the best alternative out there,” said Barry Burden, a professor of political science and director of the Elections Research Center at the University of Wisconsin-Madison. “States are experimenting with lots of different alternatives to traditional redistricting by the legislatures but the Iowa model really stands out as something that actually has worked in practice.”

Most states empower their state legislatures to draw the lines, according to the Brennan Center for Justice at New York University Law School. A few states, like Iowa, use advisory commissions but give the legislature the final say. Some states use a "backup commission," which only goes to work if the legislature is deadlocked or the governor vetoes a proposal. Seven states use a committee of politicians, and six states, including California and Arizona, hand off the job to an independent commission composed of members of the public.

A 2012 paper by an Ohio State law student that examined how three states, including Iowa, did the work argued that giving the task to professionals such as Iowa's Legislative Services Agency is better than empowering citizens to do it.

Noah Litton wrote: “The relative legitimacy, expertise, and administrative ease associated with a nonpartisan, technocratic commission all suggest the Iowa model is a better vehicle for redistricting reform.”

The risk of ‘unelected officials’

Most Republicans in Wisconsin would not necessarily agree with Litton's assessment. And conservatives say there are principled arguments against removing the power of the map from an elected legislature.

“There may be aspects to (redistricting) that are unsavory but it’s not clear any of the alternatives are any better,” said Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty. “It is intrinsically a political process and whichever party is in control is going to do whatever it can to maximize its chances.”

Esenberg worried that rather than driving partisanship out of the process, partisans will just fight it out “underground.” At least with legislators, he said, voters can show them the door.

“You turn it over to unelected officials, and there is an assumption that these unelected officials are nonpartisan but there is no evidence that is true. A nonpartisan body is just as subject to groupthink as an elected organization.”

And Iowa is hardly a politics-free zone. During the redistricting process, ground zero for politicking is the Temporary Redistricting Advisory Committee, a five-member advisory committee formed each time Iowa redraws its maps. Legislative leaders of the two major parties choose four of its members.

The process is “supposed to be totally nonpartisan ... but there’s a little bit (of politics) that goes on,” Hagle said. In 2001, he noted, the first plan the agency drew up seemed to favor Democrats more than Republicans, and the Dems pushed hard to get people to turn out for the three public hearings the committee held. The GOP, in turn, tried to turn out Republican supporters. The first plan was defeated.

A few caveats to consider:

• Some doubt whether the Iowa model could be transplanted to larger, more diverse states. As Michael Li, senior counsel at the Brennan Center, pointed out, in California, "multiple ethnic groups layer on top of each other," making it harder to draw the lines fairly.

“One of the biggest issues in states like California and Texas is whether communities of color can elect candidates," Li said. "There is a whole layer of legal complexity in California that you just don’t have in Iowa. How you make those choices is something that isn’t done well by a mathematical formula.”

Li did note:

"Nonpartisan, commission-drawn maps, including Iowa's, have low levels of partisan bias. … That eliminates the kind of problem you have in Wisconsin."

• A key question to answer in evaluating redistricting: Does the plan work? And what, exactly, do you mean by "work"?

"For me, 'working' generally means a system that avoids extremes, and that isn't obviously designed to further personal interests and partisan interests at the expense of public interest," Justin Levitt said in an email exchange. He is a professor of law and associate dean for research at Loyola Law School, Los Angeles, and an expert in redistricting.

"Iowa's system seems to do that," Levitt said. "But it's wholly unclear to me whether that's a product of the system or of the political demography and political culture. If you took Iowa's system and smacked it down in North Carolina or Illinois, I would not expect the same results."

• Changing the way a state draws its legislative maps is no cure-all for hyperpartisanship and polarization. There are no guarantees a state's acrid political air will clear or its political dialogue improve simply because the mapmaking is less partisan. The U.S. Senate is plenty partisan and wholly unaffected by redistricting.

• Independent redistricting won't change this fact: We have done a pretty good job of dividing ourselves. As Bill Bishop found in his 2008 book, “The Big Sort,” Americans have sorted themselves into like-minded political enclaves all on their own. Deep blue cities. Ruby red suburbs and rural areas. The federal court that heard Wisconsin’s case (Gill v. Whitford) found that Wisconsin’s gerrymandered Assembly maps could not be attributed only to geographic preference. But those preferences may have made the job of Republican mapmakers easier.

People have a right to live where they choose, of course, but they also have a right to choose the best system for determining who represents them.

In Iowa, the process of ensuring the constitutional mandate of “one person, one vote” doesn’t get in the way of democracy, proponents say.

“Each cycle, we generally have had one chamber at least change partisan control, and basically my thought is that the redistricting plan doesn’t get in the way of the trend,” Cook said. “If it’s a good Republican year, the redistricting plan won’t get in the way of Republicans winning. If it’s a good Democratic year, you are going to see more Democrats get elected to the legislature.”

Iowans seem satisfied with that.

"What most people miss is that Iowa's process can be overridden by the legislature at any point," Levitt said. "And what's remarkable is that they haven't. Even when the process has paired lots of sitting incumbents in the same districts, the legislature hasn't shut it down.

"In part, that has to do with Iowa's political culture. A few decades ago, I might have said that Wisconsin shared some of that culture, but all of the evidence indicates that if it was ever true, it's true no longer."

David D. Haynes is solutions editor for the Milwaukee Journal Sentinel. Email: david.haynes@jrn.com. Twitter: @DavidDHaynes

How I reported this story

Interviewed:

• Rick Esenberg, founder and general counsel, Wisconsin Institute for Law & Liberty.

• Justin Levitt, a professor of law and associate dean for research at Loyola Law School, Los Angeles (by email).

• Jay Heck, executive director, Common Cause in Wisconsin.

• Michael Li, senior counsel, Brennan Center for Justice, New York University Law School.

• Tim Hagle, political science professor, University of Iowa.

• Barry Burden, a professor of political science and director of the Elections Research Center at the University of Wisconsin-Madison.

• Ed Cook, senior legal counsel, Iowa Legislative Services Agency.

Reviewed:

• Gill v. Whitford decision at the federal court level.

• Various arguments captured during a 2017 SCOTUSblog symposium on Gill v. Whitford.

• Supreme Court decisions from the 1960s that established the standard of "one person, one vote," including Baker v. Carr.

• "The Road to Better Redistricting: Empirical Analysis and State-Based Reforms to Counter Partisan Gerrymandering," a 2012 study by Noah Litton, then a law student at The Ohio State University.

• "The Political Battle Over Congressional Redistricting," (2013, Lexington Books), especially a chapter written by Tim Hagle, professor of the University of Iowa, explaining the Iowa system for redistricting.

• Numerous articles describing gerrymandering and redistricting cases in Wisconsin, Pennsylvania, Maryland and North Carolina, including Linda Greenhouse's analysis "Two Ways of Looking at Gerrymandering," Jan. 4, The New York Times.

• A September poll by The Campaign Legal Center on attitudes toward partisan gerrymandering.

• "A Citizen's Guide to Redistricting," a 2008 publication of the Brennan Center for Justice.