Drawing the Lines

Professor Nathaniel Persily’s new course on redistricting endeavors to train students in the complicated, nuanced, and exceedingly complex practice of drawing nonpartisan congressional district lines. The result: a group of highly skilled experts specializing in doing one of the more difficult things you could ever imagine.

By Adam Liptak

Fall 2011

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Nathaniel Persily, the Charles Keller Beekman Professor of Law and Professor of Political Science, and one of the nation’s leading authorities on election law, has bridged the sometimes yawning gap between theory and practice. Just ask the Supreme Court.

The justices have cited Persily’s work five times. Sometimes they looked to him for scholarly insight. Sometimes they considered his position as an advocate who files amicus briefs in the Court. And sometimes they just wanted practical information about how the task of applying law to regulate democracy actually works on
the ground.

Persily, who has written dozens of deep and trenchant articles and been appointed by courts to draw district lines in Georgia, Maryland, and New York, asserts that his unusual background has helped him work in several worlds at once.

“My interests in redistricting began as a political scientist, were supplemented by my training and experience as a legal academic, and then became useful to me as a practitioner,” he says.

Now he has brought that array of experiences to an innovative Law School course, Redistricting and Gerrymandering, that has already produced a considerable impact in the real world of redistricting. Using the latest census data, members of Persily’s inaugural class, over the course of just three months, drew a nonpartisan district map for the entire United States House of Representatives. The plans are available at DrawCongress.org.

“Perhaps my greatest frustration with the scholarship in redistricting law,” Persily says, “is the detachment of the theory from the practice. Before making arguments about the ‘right’ way to redistrict, theorists can learn a lot by spending time in front of a computer drawing a redistricting plan for a state—trying to balance the myriad factors required by the law, politics, demography, and geography for a jurisdiction. Only after you pull your hair out in frustration as a result of trying to draw the perfect plan do you appreciate the balancing of values that inevitably plagues the redistricting process.”

There is a passage in Justice Stephen G. Breyer’s 2004 dissent in Vieth v. Jubelirer that illustrates how theory and practice can diverge when it comes to redistricting. Breyer was explaining why electoral districts drawn by self-interested incumbent politicians—a distinctively American practice—are not always a bad thing. “Politicians, unlike nonpartisan observers,” Breyer wrote, “normally understand how the location and shape of districts determine the political complexion of the area. It is precisely because politicians are best able to predict the effects of boundary changes that the districts they design usually make some political sense.”

Then Justice Breyer provided a supporting example drawn from a Harvard Law Review article by Professor Nathaniel Persily called, fittingly, “In Defense of Foxes Guarding Henhouses.” In the piece, Persily wrote that he had been appointed by a New York court to draw congressional districts for the state, and his plan moved an uninhabited swamp in Queens from one district to another.

At the time, the decision did not seem to be of great import, as there were no voters in the swamp. Plus, there was a good reason for the adjustment.

“We took Jamaica Bay out of one representative’s district and gave it to another,” Persily says. “We did this because otherwise the other district would only be contiguous at low tide.”

But the affected representative, Anthony D. Weiner—who resigned from Congress in June—protested. His basic complaint, Persily says, was this: “Give me back my swamp. No one lives there, but I have ongoing environmental projects there that I would like to continue to supervise.”

In the redistricting course, students confront countless conflicts like that one, and they learned to take account of the vagaries of geography, history, politics, culture—and law. The 20 students in the class, which Persily launched this past spring, participated in three days of intensive training on redistricting technology before the semester began, learning to use the Caliper Corporation’s Maptitude for Redistricting software. The company offered licenses to the Law School at a
reduced rate.

The class, Persily says, signals something important about Columbia’s approach to legal education. 

“The Columbia faculty is distinctive in our ability to navigate easily between worlds of high theory and the law on the ground,” he says. “Many of us are actively engaged in policy debates in our field or in actual cases representing clients. I think we try, in particular, to give students a flavor for real-world lawyering in our fields.”

After mastering the technology, the students prepared maps that fell into one of five categories. Some tried to hew as closely as possible to current district lines, others to draw compact districts based on political subdivisions. Still others tried to maximize political competition or to achieve proportional representation by producing districts that reflected the state’s partisan divisions. A final, ambitious group tried to harmonize two or more of these principles.

Now layer on top of those often conflicting goals the legal requirements imposed by the Voting Rights Act of 1965 and Supreme Court precedent on one person, one vote. It can make solving a Rubik’s Cube seem easy.

Consider the number of factors that Neal Ubriani ’12 took account of in drawing a new map for Pennsylvania, which is losing a congressional district even as its minority population is growing.

Ubriani decided to start from the ground up. “My plan sought to avoid the tarnished legacy of the current lines,” he wrote in a 50-page paper. “A partisan gerrymander is a poor starting point for a nonpartisan plan.”

Instead, he wrote of his “good government” plan, he would focus on “communities of interest” based on recognized regions of the state, like the Scranton metropolitan area.

But defining such communities was sometimes hard, often required judgment calls, and had to be balanced against other concerns. “At times,” he wrote, “regions needed to be split in the interest of other overarching concerns—population equality, compactness and compliance with the Voting Rights Act.”

Ubriani explained, for instance, why he had created a district that arced diagonally across the state, testing the requirement of compactness. “This strangely shaped district,” he wrote, “was necessary to keep the state’s Appalachian Mountain
region together.”

The courts are quite strict in requiring population equality among districts, meaning that Pennsylvania’s population of 12,702,379, according to the 2010 census, had to be evenly divided across 18 districts. “In my plan,” Ubriani wrote, “13 districts have a population of 705,688 and the remaining five have a population of 705,687,” meaning it came “as close to perfect population equality as possible.”

Ubriani, who spent the summer after the class doing redistricting work for the NAACP Legal Defense and Educational Fund, also complied with Section 2 of the Voting Rights Act, which is violated if minority communities “have less opportunity than other members of the electorate” to “elect representatives of their choice.” About 6 percent of the state’s population is Hispanic, but he concluded that they were too dispersed to make up the majority of a plausible district. African-Americans in Pennsylvania, meanwhile, are more concentrated, with many living in and near Philadelphia. Ubriani drew one district in which African-Americans were a majority and another in which they were a plurality.

Persily pushes his students to test their intuitions and biases, and he shares his own experiences in the field.

“Students love war stories,” he says, “especially those that involve partisan intrigue and the raw ugliness of politics brought out in redistricting fights. Redistricting brings out the worst in politicians, as they fight for their political futures or use their line-drawing power to exact revenge on political opponents.”

Students in the inaugural class said they were energized by it.

It was, says Shawn Crowley ’11, “definitely the coolest thing I did in law school, and probably that which I worked the hardest on.”

The course was also, she added, quite intense. “I spent literally hundreds of hours learning the mapping software, dealing with various technical difficulties, reviewing the laws surrounding redistricting and gerrymandering, familiarizing myself with the demographic, political, and geographic features of the states I mapped, and then actually drawing and re-drawing the maps themselves,” she says.

Kathleen Vermazen ’11, who was one of the students Persily brought to Washington, D.C., to train state legislators on redistricting, added that the class showed her just how difficult the task of redistricting is, even when partisan politics are not part of the equation.

“I found that, once you get past the simple numbers for drawing districts, the number of considerations that go into a redistricting plan is nearly endless,” she says. “The location of roads, rivers, crop and weather patterns—all can play a part in drawing districts that reflect the political and social reality on the ground in any given state.”

Matthew Galeotti ’11 says the class helped him understand that redistricting “probably carries more influence than any debate, ad campaign, or even substantive platform can.” Indeed, he adds, “We weren’t far into the course when I realized that elections are decided just as much by who draws the lines as they are by the voters, if not more.”

Persily says the quality of the work that emerged from the course was exceptional.

“The class was more successful than I ever could have hoped,” he says. “I would personally trust any of these students to assist any jurisdiction, court, or litigant in crafting redistricting plans. Indeed, some of the students are now better than I am at some aspects of the technology.”

The upshot
of Professor Persily’s redistricting project is a library of off-the-shelf, ready-to-use congressional redistricting maps, which are also available as a sort of benchmark against which to judge plans that are the products of raw politics.

“By creating a repository for nonpartisan redistricting plans,” Persily says, “I thought we might be able to affect the debate this redistricting cycle.”

The reaction has been enthusiastic. The St. Louis Post-Dispatch, for instance, had a look at three maps produced by the class and concluded that “[E]ach is head-and-shoulders better that the county-splitting gerrymandered boundaries drawn by
state lawmakers.”

Going forward, Persily has big plans for the class.

“Most of the [maps] now up on the website intentionally eschewed political considerations,” he says. “The next group of plans will promote political competition and ‘fair’ representation.”

Having already cited his articles, advocacy, and anecdotes, it seems only a matter of time before the Supreme Court considers Persily’s newest contribution to the debate over the intersection of law and democracy—and of high theory versus
gritty practice.

Adam Liptak is the Supreme Court correspondent for The New York Times.

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Illustration by Justin Renteria