Can “Competitive Districts” Lead to Gerrymandering? You Bet.

Under Arizona’s constitutional redistricting scheme, a classic form of gerrymander is committed under the guise of "competitive districts."

Per Arizona’s constitution, when redistricting, the map drawer — in this case the Arizona Independent Redistricting Commission, a so-called “independent” commission — must infuse the districts with six constitutional values or “goals.” The sixth goal requires the commission to favor the creation of more competitive districts where to do so would not cause a substantial detriment to the achievement of the other five redistricting goals.

COMPETITIVENESS IS A ZERO-SUM GAME ON THE MAP

Competitiveness is a zero-sum game on the map: make one area “competitive'“ or “highly competitive” and you make another area less so. Here is how that can work:

Assume Party A has a 6% advantage over Party B statewide, with independents and third parties breaking roughly evenly between the parties.

Assume a twelve-district map is to be drawn, and assume one quarter of the districts, three, must be drawn to comply with the federal Voting Rights Act (“VRA”).

The VRA helps Party B in the VRA districts but enhances Party A’s advantage outside the VRA districts.

The VRA districts heavily favor Party B. Indeed, in satisfying the VRA, Party B’s voters, on average, comprise 56% of voters in those districts.

Party B can be comforted that the VRA has given it three slam-dunk districts, essentially mandated, protected,, and guarantied by federal law.

Given that Party B used up more voters in the VRA districts, assume that Party A’s advantage is now 12% elsewhere on the map.

The rest of the map — the other nine districts where the VRA is not in play in terms of redistricting — looks very grim for Party B. Right?

Never fear Party B - selective application of the competitiveness criterion is here!

Party B now looks for areas of the map outside the VRA districts where it can find concentrations of its fewer remaining voters.

Party B insists that the AIRC must have the goal of creating a certain number of “highly competitive districts,” having the AIRC adopt, and tout, a very narrow target range for the district to be considered “competitive.”

Party B finds where four of the remaining districts can be drawn to be “highly competitive” or something very close to “highly competitive” under the AIRC’s newly minted, and contrived, definition.

In constructing the so-called competitive districts, Party B is careful to give itself the advantage, either in partisan make up, with future growth considerations, or by including independent voters that skew toward Party B.

Assume that, on average, these highly competitive districts lean toward Party B by about 1%.

Party B cares not about the remaining five districts. In fact, Party B works to thwart any effort to make the remaining five districts more competitive. Indeed, Party B argues that unless those districts can be drawn to hit the AIRC’s narrow range for “competitiveness,” which they cannot, then the AIRC is not obliged to apply the competitiveness criterion to those districts. Moreover, Party B argues that these districts should be lopsided, and indeed works to make them more lopsided lest the four “balanced” districts that hit the AIRC’s narrow competitiveness metric be disturbed.

Congratulations Party B!

Party B is guarantied to will win three districts by virtue of the VRA, and Party B has put itself in position to win four more districts through selective application of the competitiveness criterion. Party B stands a good chance of winning seven out of twelve districts, despite its 6% disadvantage statewide.

What of Party A and its statewide 6% advantage?

Party A will win five districts easily, with a roughly 20% advantage in those districts. Residents of those districts will not know the glories of living in a competitive district but perhaps will have the satisfaction of knowing that Party B has become an endangered species in these districts, assuming residents have even heard of Party B. Party B will essentially be moribund in these areas, perhaps not even fielding candidates, raising money, or engaging in meaningful political discussion.

The foregoing hypothetical is obviously incomplete because it considers only three of Arizona’s six mandatory redistricting criteria: equal population, VRA compliance, and competitiveness. Applying the other three criteria will skew the districts in other ways, Nevertheless, the foregoing example represents a rough approximation of what occurred in the 2011 redistricting , at least as of November 2021, the current, ongoing redistricting. When one political party -- typically the minority party — fixates on creating a limited number of so-called “highly competitive districts” in select areas of the map, them that party is also telling you that it intends to create other districts that are the opposite of competitive. Certain voters will get the “value” of “competitiveness” while others will have it purposefully denied to them. By “packing” one party in highly uncompetitive districts, the minority party gives itself a political leg up and the opportunity to win more districts, perhaps even flipping the partisan make-up of the jurisdiction.

SELECTIVE USE OF COMPETITIVENESS IS WRONG AND UNFAIR

Selective application of a “competitiveness” criterion on a map is a serious transgression. Proponents of so-called “competitive districts” claim that they generate a different kind of “voice” in the legislature, one that is more moderate, more willing to compromise and reach across the aisle, and more responsive to voters. By contrast, lopsided districts are said to be beholden to entrenched, extremist interests. But by bestowing “competitive districts” on certain, select areas of the map, the supposed glories of this form of representation are showered upon certain people and affirmatively denied others. Accordingly, this form of gerrymandering not only seeks a political advantage for one party, but it implicates other legal violations in areas such as voting rights, equal protection, and free speech and association.

THE AIRC GERRYMANDERED USING COMPETITIVENESS IN 2011

The foregoing scenario occurred during the 2011 redistricting on Arizona’s congressional map: First, two of Arizona’s nine congressional districts were drawn to a comply with Sections II and V of the federal Voting Rights Act. To comply with the VRA, those two districts used up a disproportionate number of the minority party’s voters, leaving that party as a substantial disadvantage elsewhere on the map. It was then that the minority party selectively, and deceptively, applied Arizona’s competitiveness criterion, identifying three districts that they would focus upon and deem “competitive.” These districts were not, in fact, competitive. Indeed, they were decidedly skewed in the minority party’s favor, but the minority party used the “we-want-competitive-districts!” cudgel to fend off any efforts to modify them. Lastly, the minority party hyper-packed the majority party into the four remaining congressional districts. By creating two districts compliant with the Voting Rights Act; focusing on creating three purported, and non-negotiable, “competitive districts,” and by packing the remaining four districts; Arizona’s congressional delegation was flipped from red to blue.

A similar scenario played out on the state legislative map in 2011. Although the partisan majority of the legislature was not flipped, the supermajority of the majority party was eliminated, which was the partisan objective of the minority party. Blunting majorities is just as much a gerrymander as flipping majorities: a legislature operating on a supermajority is a far different political animal than one operating on a simple majority.

DÉJÀ VU ALL OVER AGAIN IN 2021

Unfortunately, in 2021 the same minority party is attempting to implement the same gerrymander it engineered 10 years ago. Certain commissioners have insisted that the AIRC draw districts to meet a narrow and arbitrary “competitiveness” metric, completely misconstruing the requirement in Arizona’s constitution that “more competitive” districts be favored, i.e., each district should be made less lopsided and more competitive. In furtherance of their gerrymandering goal, these commissioners have objected to any map change that would upset any of these "perfect" and "balanced" districts. If the “perfect balance” of these limited number of districts cannot be upset, then other districts must be made, or left, lopsided, i.e., packed with the majority party.

That is not how the competitiveness criterion works in Arizona and under notions of equal protection. Every district gets that constitutional value applied to it, which works against the political gerrymander. Arizona’s redistricting commission cannot refuse to make a lopsided district "more competitive" because it would upset the "balance" of another "perfect," "highly competitive" district. The constitutional competitiveness goal yields only when it would cause a substantial detriment to the achievement of Arizona’s other five redistricting goals -- not the competitiveness goal. With respect to this constitutional goal, the focus of Arizona’s redistricting commission must be to work at making EACH DISTRICT "more competitive."

MAKING LOPSIDED DISTRICTS LESS SO, EVEN MARGINALLY, CONFIRS THE COMPETITIVENESS VALUE ON VOTERS IN THOSE DISTRICTS

Arizona’s redistricting commission should not be permitted to dismiss lopsided districts, giving up on trying to make them less so. The excuse we have heard from certain commissioners is that making the district a bit less lopsided would not change the outcome in future elections. That is not a valid justification for refusing to apply the mandatory competitiveness criterion. Making a lopsided, non-VRA district a bit less lopsided enhances the "political voice" of the minority party in that district by (a) encouraging candidates to run; (b) encouraging better candidates to run; (c) enhancing fundraising; (d) enhancing party building; and (e) building a more robust political discussion in the district. Moreover, making a lopsided district less lopsided opens the door for the minority party to adopt a SINGLE-SHOT STRATEGY in state legislative races.

When you hear Arizona’s redistricting commission, or its cheerleaders in the press, touting the number of “competitive” or “highly competitive” districts it drew, think political gerrymander. The redistricting commission should be touting its efforts to make each district “more competitive.” In that way, every voter in the state, no matter where located, can be assured that this redistricting goal was applied equally and fairly across the map, including the district in which that voter resides.

Voters should be insisting that the Arizona Independent Redistricting Commission work to make EACH DISTRICT “more competitive.”