To fix gerrymandering, a test is needed -- or an interstate compact
One of the key flaws in the US political system is gerrymandering. I have written about this before even proposing my own method of redistricting, but such proposals only have a limited utility.
In this article I present why court solutions have had trouble, and a potentially new approach using an interstate compact.
Gerrymandering is particularly bad in the USA, but it's a general "bug" in many democratic systems. The flaw is often summed up with the phrase "The politicians pick the voters instead of vice versa." When the incumbent legislators and parties can draw the districts, they can bias the system heavily in their favour. In the USA, the house of representatives is currently highly biased towards the Republican party. It is often cited that the Republicans won 49.9% of popular votes for congress but got 55% of the seats. You can't actually add the individual house votes, because people vote (or rather stay away) differently in safe districts than they do in contested one, but the margin is large enough that the trend is clear.
This is in large part due to Operation Redmap which is documented in the book Ratfucked. It truly fits the description "fiendishly clever plan" and exploits the bug to the level of making it close to permanent.
How districts are drawn is left to the states both in the constitution and the law. Some states have moved to create more fair districting rules, the sort of rules you would make up if you were doing it from a nonpartisan standpoint. However, the hard fact is that those states which do this are chumps. It does not make the system more fair if one side stops cheating -- and I do think of gerrymandering as cheating -- and the other side keeps on cheating. It just assures victory for the cheating side going forward. At the same time, having all sides cheat indefinitely is not a good solution either.
The constitution says very little about districting. In fact, it doesn't even demand districts! States could have, if they chose, selected their representatives in a statewide proportional vote. Later federal laws, however, have demanded each person have one congress member, which demands geographic districts. About half the states require the districts be contiguous, but the others don't. The voting rights act and other principles have forbidden drawing the lines on racial or minority grounds, but not on the grounds of "this helps incumbents keep their seats" -- that's still largely within the rules.
In any event, as long as gerrymandering is benefiting the GOP, they are not going to commit political suicide to remove it. States controlled strongly by one party or the other will resist willfully hurting their own parties, though there are exceptions when states have ballot resolutions. The supreme court ruled, barely, that the public can supersede the legislatures on this matter with a ballot proposition, and so that has happened. While the public belong to parties, they are actually more interested in fairness than party loyalty.
A constitutional amendment could fix this, but that's not going to happen. And strong federal law could probably fix it, but that's not coming from houses controlled by the people which benefit from the cheating.
As such, the solution can only come from the courts, or ballot propositions in a balanced set of states.
A good summary of the rules around districting in the different states can be found at this site.
But it's not actually fair play, say the courts
Justices of the supreme court have reportedly all denounced gerrymandering to cement political control. They agree that it violates the principles of the constitution of one person one vote and equal protection, as it effectively eliminates for partisan reasons the voting power of many. Even agreeing with this, for now they feel powerless to stop it.
We can all see gerrymandering happen, but for the courts to do something about it, they would need to define fair and unbiased test which says when it is happening. This is hard, as courts are reluctant to write sets of rules like that -- that is the province of the other branches of government. Courts don't make the rules, they just decide if people are playing fairly by the rules that the other branches created.
So while it's easy for you or I to propose fair rules for districting -- rectangular districts or my own convexity test above -- these just aren't the sort of rules courts are willing to make up. You can't extract them from the constitution. A court can look at a crazily shaped district and know "this is unfair" but it has to come up with a way that the states can objectively know what is fair and what isn't, without being the author of its own rules.
One proposed rule that's been advocated is the voting efficiency gap. Here, they try to measure how many votes were "wasted" because of district design. If a district went 80% for one party and 20% for the other, 30% of party A's votes are wasted, and20% of party Bs, and the difference between these numbers tells how biased that election was.
It's a nice test but one can see immediate flaws. For example, in a state biased 55% to 45%, a "perfect" districting where every district has the same balance as the state would result in 100% of seats for the dominant party. Since one party is strong in cities and the other strong in the country, any geographic set of districts is going to have these "inefficiencies" with inner cities voting 80% Democratic in the same state as a rural district votes 80% Republican -- without any intent to cheat in how the lines are drawn. As noted, proportional non-geographic districts are not going to happen.
The courts, if they are to help us, need a test which will clearly let them tell states, "If you don't draw your districts to match this test, they will be ruled invalid." It's easy to come up with fair, non-partisan tests to use, but the problem is that it is easy and so there are several you could use -- and why should one be chosen over another? The legislatures can choose one option from many, but the courts are not to be arbitrary in that way. Their test has to clearly match some principle they find in the law.
You can propose convexity, or straight lines, or random selection -- but none of them answer the question of "why does the law demand that particular one, vs. another?" They will ask this because any system, even if non-partisan, will benefit one party more than a different choice and thus have the appearance of being chosen from the pool for a partisan reason. And perhaps more than the appearance.
Ballot propositions and a State Compact
Individual states deciding to play fair just cede their power. Perhaps another option is possible -- through a compact of states dedicated to fair districting.
Here's how such a compact would work. States joining the compact would appoint a group to come up with a suitable test for gerrymandering. They are allowed to make that choice, it is their right as states. The group would review all districts drawn outside the compact, and judge how many were gerrymandered Republican and how many were gerrymandered Democrat.
It would then be authorized to draw districts in the compact to countermand that. For every district meeting the test for being gerrymandered one way, they would create a counter-district inside the compact the other way. The remaining districts would be drawn by some agreed upon non-partisan system. The internal state-house districts would be drawn in a non-partisan way, of course.
In theory, this would make it somewhat pointless to gerrymander, as long as the compact controlled more districts than the gerrymandering states. Note that since not all non-compact states do nasty gerrymandering, this could be possible.
The biggest issue is that districts are held by people, not just parties, and parties have factions and personalities. The Republicans of North Carolina will still want to protect their personal seats even if it costs the party seats in the house. After all, they are real people, and the folks who never won a brand-new district have no power. The Tea Party might be happy to protect their own seats at the cost of seats for ones they call RINOs. One counter would be to say that if the Republicans gerrymander N extra seats, the compact gives N+1 or 1.1*N to the Democrats until they fix it.
Another issue is that those "sacrificial" districts in the compact won't be very happy. If you live in a Republican dominated state or region, you might not like having your district drawn to give you a Democratic house member, or vice versa, especially if the balance of power shifts. It might take a great deal of cleverness to draw a mix of fair and sacrificial districts that upsets the fewest people.
It's possible though, for the states in the compact to go much further. They could create non-geographic districts. In those non-geographic districts, the voters could be all of one party. Thus N districts consist of all the registered Republicans and M of all the registered democrats. Other parties would be put into the non-partisan districts. In these areas, all registered GOP would be assured a GOP congress member -- and the primary would be the real race, as is often the case in this situation. While there would no longer be a rep specifically for "this zip code" there is no big loss in that, I think, in the modern connected world.
Ideally, once put in place, this system fixes the problem. The compact would be self-disolving, written so that as soon as the other states give up their gerrymandering, and/or join the compact, the compact dismantles, leaving a set of states who allocate districts in some reasonable and non-partisan way (as defined by the rules of the compact.) If the compact goes so far as to follow the N+1 rule or an even stronger one, there is a strong incentive for the non-compact states to give up their cheatin' ways.
Today, the GOP is winning the gerrymandering battle. That means that Republican states might be much less likely to join the compact. The compact could still work with only Democratic states in it, but that in turn seems partisan and might push the other side to fight even harder to defend itself. That's why ballot propositions come in. A Republican state or moderate state might well be willing to join the compact through a ballot proposition, in the interest of fairness. In addition, the compact could be written so that if the Republicans are up by 22 states, the 22 counter-states made Democrat would first be done in Democratic majority states, and the GOP majority states would only come into play if the count got too high -- or swung the other way.
California, for example, holds a lot of power. California might, on its own say, "If, in the rest of the nation, Republicans are up 22 seats due to gerrymandering, California will allocate its 55 members of congress (currently 39 to 14) on a winner takes all statewide vote." If another 8 votes could be found in another state, it would be enough. Of course, this would be challenged for violating other principles -- on its own it is even worse than gerrymandering -- but the court challenge would be an interesting one when the cause is considered.
Affecting the vote result
Rules like the vote efficiency rule currently under discussion could have an interesting result. If voters knew this compact existed and was looking at popular vote totals, then suddenly votes would become meaningful even in safe, gerrymandered districts. This means voters would vote more closely to their real intentions, and many voters who today stay home because they know their vote can't make a difference might come to the polls, knowing their vote counts for something. This in turn would give the compact more accurate data from which to make its measurements, which must be non-partisan and objective as much as is possible.
It is also worth noting there are different kinds of gerrymandering. One is designing districts so they are dominated by your party. There is also the inverse -- trying to concentrate large numbers outside your party in one district. In this case, you are causing other districts to be dominated by your party, but it's not as visibly obvious. Another example is the sort found in Austin, TX. There, they took the city and the surrounding rural districts and split it up into 6 wedges of sorts, each wedge containing 1/6th of the (Democrat supporting) urban area and enough rural area to tilt the total district Republican. Thus left-leaning Austin has 5 of its 6 congress members from the GOP, but the districts are roughly concave, if stretched.