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COUNTERPOINT: “Republicans amassed power disproportionate to their support from voters. Indiana’s maps are among the most unfair”

The following — in response to a column by Indianapolis Star opinion contributor Pete Seat — was co-authored by Jay Yeager (above) and Ted Boehm, both of whom served as lead counsel in federal court challenges to partisan gerrymandering,

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Indiana’s gerrymandered 2011 legislative and congressional district maps have created one-party supermajorities and at the same time gutted centrist influence among our elected representatives.  None of this is an accident, and none of it is good for our state.

And yet it’s about to happen again.

Firing the first shots for a 2021 Indiana gerrymander, one Republican partisan now brazenly claims in the Indianapolis Star (February 28) that there actually is no gerrymander here in Indiana. He says his party’s lopsided majorities in the state Senate (39 of 50 seats), state House (71 of 100 seats) and congressional delegation (7 of 9 seats) result simply, albeit quite conveniently for one party, from where voters choose to live in Indiana.

That claim is false. The data below show just the opposite.

Partisan gerrymandering is wrong regardless of which party does it.

Democrats now protest the 2011 gerrymander, just as Republicans rightly protested when Democrats enacted House maps in 1991 and 2001 biased against Republican voters. We can have fair representation in the General Assembly and Congress. Let’s look at real data, and hear from real experts.

First, map-rigging like the Indiana 2011 gerrymander inflicts real harms.  Gerrymandering works simply. Map drawers pack minority-party voters into as few districts as possible, creating large minority-party majorities in those few districts. They then carefully distribute their own voters across many more districts, creating reliable majority-party districts with smaller but still safe voter majorities. Experts call this process packing and cracking.

Majority party leaders typically assemble a small team of experts who work in secret and base their line-drawing on careful analysis of historical voter behavior data that reliably predicts future voting patterns. If Indiana Republicans deny the 2011 gerrymander, they can prove their defense by making public every detail of their 2011 map-drawing process.  This will include expert input, emails, draft maps, voter data and analyses. We won’t hold our breath for that.

As a result of the 2011 process, our district maps are badly biased. Indiana has on average voted about 57% Republican over the past few years, but that party now has 71% of the Indiana House, 78% of the Senate and 78% of the Indiana congressional delegation. Cook Report data here.

These disproportionate majorities inflict two main harms. First they deprive Democrats of any real influence in the General Assembly. The supermajority has the power to ignore the wishes of the Indiana voters who support Democratic policies. Data confirms that gerrymandering shifts policy outcomes away from actual public preferences.  Caughey, Warshaw et al., “Partisan Gerrymandering and the Political Process: Effects on Roll-Call Voting and State Policies,” Election Law Journal, December, 2017, 16(4): 453-469.

But gerrymanders also impose another serious harm. By eliminating most competitive districts they crowd out the moderate candidates who many voters would actually prefer, and lead instead to election of more extreme partisans. Here’s how.

  • Indiana voters vote in separate Democratic and Republican primary elections. Many independents do not vote in either primary.
  • Because the gerrymander creates safe districts, the winner of the primary election is nearly guaranteed victory in the fall.
  • So the only real contest becomes the primary election of each district’s majority party.
  • Except in the few remaining competitive districts, there is no need for either party to select candidates who appeal to the center. Republican nominees then tend to be farther right and the Democratic nominees tend to be farther left.
  • The result is a more polarized legislature with few moderates or compromisers.
  • The gerrymander also effectively excludes independents because the center of the majority party’s voters, not the center of the voting population as a whole, becomes the determining battleground.

Second, the data shows that Indiana’s maps are among the most unfair in the nation.  Modern technology has perfected the art of drawing biased yet geographically compact districts, so a gerrymander no longer requires drawing districts with weird shapes.  The resulting unfairness, however, can be demonstrated. Experts apply a series of well-accepted mathematical tests to measure what they call “partisan bias” — the extent to which maps favor one party or the other.  Several such evaluations show Indiana among the worst performers.

For example, Dr. Christopher Warshaw, a leading redistricting expert at George Washington University, submitted state level data in recent federal court redistricting litigation in Michigan.  He demonstrated that both at its inception in 2012, and through the most recent data he had available, 2016, Indiana had among the highest pro-Republican map bias in all 50 states. The three-judge court found Prof. Warshaw credible and relied directly on his testimony.

Three of the strongest metrics of partisan fairness in a districting map — Efficiency Gap, Partisan Bias and Mean-Median — directly reflect the bias of the Indiana maps.  For example, the Indiana House map ranks among the 2% most unfair nationwide according to Partisan Bias, and the 5% most unfair under the Mean-Median test.  Likewise the state Senate map ranks among the 4% most unfair as measured by Efficiency Gap.  Full data for all maps are available at PlanScore.

Third, this stacked deck was intentional, not some unavoidable result pre-ordained by where voters live.  So why are our maps so bad? Is it just an accident? 

No.

The claim that Indiana’s 2011 Republicans presided over a neutral and benign process, despite their majority power, and that the resulting maps just happened to turn out to be among the most biased in the nation, defies belief.

The 2011 gerrymanderers had help from national organizations.  Republican National Committee documents detail its well-known 2010 REDMAP project, which aimed at securing statehouse seats in 2010 in order to control all redistricting in 2011. It sought to “strengthen Republican redistricting power” by flipping state legislative chambers including, specifically, the Indiana House.

Here’s another inconvenient fact for the Republican argument — states with one-party control routinely produce more biased maps than states where both parties have influence in the process, while states with commissions or two-party control do much better.  Stephanopoulos, “Arizona and Anti-Reform,” 2015 U. Chi. Legal F. 477, 496-501. This would hardly be the case if biased maps were simply the unavoidable but convenient result of where voters live.

The time-worn counter — that urbanization itself causes and justifies unfair maps — has failed in courts across the country.  Even if urbanization were as mighty a force as partisans claim (and there is no evidence of that), at 72.4% Indiana is only the 29th most urban state in the nation, and well below the national average of 80.7%. We rank very near the urbanization levels of Michigan and Wisconsin and below Ohio — states in which three-judge federal courts recently found overwhelming evidence of extreme intentional partisan gerrymanders. Those courts firmly rejected the it’s-all-just-geography arguments now being advanced here.

Five members of the U.S. Supreme Court later decided to take federal courts out of redistricting for jurisdictional reasons. This ruling does nothing to undermine the facts found by the district courts. Removing the guardrails of federal litigation only places more responsibility on states to draw fair maps. Not less.

Fourth, defenders of gerrymandered maps do not respond to any of these established facts. Instead, they raise false issues and miscite experts. The Republican advocate in the February 28 Star article cited expert Jonathan Rodden in support of the geography-is-destiny argument. Prof. Rodden told us however he has not examined the Indiana data and has no opinion on whether or not Indiana is gerrymandered. To the contrary, he believes that “because of [Indiana’s] geography the gerrymandering would be easier because the districts could still look compact.”

Likewise,  The Star article quotes the Washington Post for the proposition that Indiana’s maps are “sensible.” In fact the Post was not evaluating the fairness of the maps, only the very different question of how compact the districts look. But it is now well established that a gerrymander can be accomplished with compact and relatively regularly shaped districts.

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Indiana’s supermajority legislators may hope voters will be distracted and look the other way this summer when the ugly gerrymander of 2011 is updated for 2021. Don’t let their false claim of inevitability take root. Gerrymandering is not, as a leading Republican recently said, “in the eye of the beholder.” It’s a proven, measurable fact that is shifting Indiana further and further to one side of the political spectrum — further and further away from focus on the common good.

Demand balance. Demand fair representation.

Jay Yeager was lead counsel for voters in the 2019 federal court challenge to Michigan’s gerrymandered maps, and on United States Supreme Court briefing supporting the 2017 challenge to the Wisconsin gerrymander.  He practiced complex litigation at Baker & Daniels and Faegre Baker Daniels through 2019.

Ted Boehm is a former Indiana Supreme Court justice. He was lead counsel in the 1986 United States Supreme Court case that established the federal courts’ jurisdiction over constitutional challenges to partisan gerrymandering until it was overruled in 2019 in a hotly contested 5-4 decision.

Co-signers:

Patricia M Castañeda
Chair, Women4Change Indiana (W4CI)

Marya Jones
Attorney and planned giving professional
W4CI Advisor

Rebecca Kendall
Senior Vice President and General Counsel, Eli Lilly and Company (ret.)
Board Member, Women4Change Indiana Action Fund 

Sheila Suess Kennedy
Emirta Professor of Law and Public Affiars at IUPUI
Founder of the Center for Civic Literacy at IUPUI
W4CI Advisor

Azher Khan
President, Calderon Textiles
Founder, Seeds of Learning

Martha Lamkin
Board Chair, Women4Change Indiana Action Fund

Sam Odle
Senior Policy Advisor, Bose Public Affairs
Director, Alder Bowman

Chris Paulson
CEO, Indiana Youth Group
Women4Change Indiana Action Fund Board Member 

Rima Shahid
W4C Executive Director