Applying the Free and Equal Elections Clause
Near the conclusion of the LRC's hearing on October 25th, Chair Nordenberg offered his interpretation of a key element of the Supreme Court's 2018 League of Women Voters decision: "... in legislative reapportionment, even if you comply with the requirements of Article II, Section 16, there could be a problem with the Free and Equal Elections Clause, if there is a showing of dilution.... One thing that triggers in my mind is the idea that you could look at a map that included - let's stick with the Senate - fifty districts that were compact and contiguous, and did not involve excess boundary cuts, but there could still be something about the map as a whole that was unfair." (For reference, see https://www.brennancenter.org/sites/default/files/legal-work/LWV_v_PA_Majority-Opinion.pdf @ p.124.) Chief Counsel Byer concurred, adding a caveat that the Court did not decide the LWV case on that basis, nor did the Court provide parameters for measuring unfairness or dilution with regard to a map that is otherwise compliant. Their exchange shed light on the Chair's views regarding partisan fairness. These views take on particular relevance after the LRC hearing of November 15th. In that session, Amanda Holt urged the Commission to minimize splits of political subdivisions, and offered draft legislative maps reflecting this standard. Ms. Holt's Senate map appears problematic, however, by Ms. Holt's own standards, and especially by those Chair Nordenberg articulated on October 25th. To illustrate these difficulties, I have drawn several variations on Ms. Holt's draft. The results for a representative sample are summarized in tabular form below. Links to the adjusted maps appear below the table. In light of Chair Nordenberg's comments, note that it is possible to amend Ms. Holt's Senate map to mitigate dilution while maintaining or even improving compliance with the standards she advocates. For example, the first adjusted map achieves both a modest reduction of splits and significant improvement in DRA's measures of partisan fairness, while also enhancing opportunities for minority representation in the Harrisburg area. Notably, the partisan lean of Ms. Holt's draft is nearly identical to the current, heavily gerrymandered map. I do not think she set out to draw a partisan map. If that had been her intent, she likely could have tipped the balance further. I only wish to suggest that, if the Commission adopts Ms. Holt's priorities for constitutional compliance, some adjustments to her draft might be needed to satisfy the Free and Equal Elections Clause, as interpreted by the Pennsylvania Supreme Court. While the first variant may be sufficient to address the Chair's concerns regarding the Free and Equal Elections Clause, I drew additional versions to ameliorate a separate challenge. Ms. Holt's draft divides Philadelphia County into six overpopulated districts. The first adjusted map retains this treatment, precisely as Ms. Holt drew it. Because this approach to Philadelphia might raise allegations of racial packing, I added two variants that add a single county split, merging part of West Philadelphia with eastern Delaware County. In one version, the remaining Philadelphia districts are optimized for compactness; in the other, these districts strike a balance between compactness and minority representation. All three variants match or surpass Ms. Holt's draft by her own metrics, while substantially reducing partisan bias. Holt Draft Senate MW Holt Adj. 1 MW Holt Adj. 2 MW Holt Adj. 3 Current Senate Counties Split 16 15 15 15 25 Total County Splits 29 28 29 29 53 Population Affected % 6.80% 4.08% 6.39% 6.39% 32.25% Single-County Districts 27 28 27 27 17 Municipalities Split* 3 2 2 2 N/A Total Municipal Splits* 7 6 7 7 N/A Precincts Split 0 0 0 0 N/A DRA Compactness Score 63 63 68 67 41 DRA Minority Score 57 60 51 57 53 Proportionality** 92 100 100 100 91 Partisan Bias** 47 54 55 55 47 Votes Bias** 2.28% 1.32% 1.22% 1.20% 2.38% Seats Bias** 6.65% 3.52% 3.30% 3.22% 6.41% Population Variance 9.84% 9.84% 9.84% 9.84% 7.96%** Maximum District Variance 5.88% 5.88% 5.88% 5.88% 3.98%** * Excludes municipalities that span counties. Splits of municipalities and precincts are N/A for current map as boundaries may have changed. ** Based on DRA 2016-2020 Election Composite. A fuller analysis would consider a range of election scenarios. *** Population variance for the current map reflect 2010 Census data. Map links: MW Holt Adj.1 https://davesredistricting.org/join/06362d45-8a8f-4db6-aa97-71793a5c79eb MW Holt Adj.2 https://davesredistricting.org/join/912de3bd-3892-4bbe-bf44-073f494e9935 MW Holt Adj.3 https://davesredistricting.org/join/0697a8eb-3b06-42e4-a875-b9ad226a60e6