Senate Democrats have introduced the Freedom to Vote Act, a compromise alternative to the For the People Act, that introduces sweeping new measures to promote voter access, end partisan gerrymandering, increase campaign finance transparency and reform federal elections in a number of other ways.
The partisan gerrymandering ban introduced in the Freedom to Vote Act comes at a particularly important time: The Census Bureau released its redistricting data in August, kicking off the decennial redistricting process.
Some states have already begun to release draft maps, and both parties appear determined to gerrymander those maps to their advantage.
As it stands today, federal courts are powerless to prevent states from drawing these new maps for purely partisan gain. But the Freedom to Vote Act would change that. Here’s how.
Partisan gerrymandering is the practice of permitting legislators to choose their voters—not the other way around. A partisan gerrymander occurs when a state draws its congressional districts in a way that disproportionately favors one political party.
This practice is widely unpopular in the United States: nearly 90% of Americans oppose partisan gerrymandering, with little variation by political party.
Yet partisan gerrymandering remains unconstrained by federal law in the United States.
In the 2019 case Rucho v. Common Cause, the Supreme Court held that federal courts were powerless to adjudicate partisan gerrymandering disputes because they lacked a “manageable standard” for determining when a partisan gerrymander had “gone too far.”
The Court therefore permitted congressional maps in Maryland and North Carolina—both of which were explicitly drawn for partisan gain—to take effect.
The Freedom to Vote Act supplies federal courts with the standard that was missing in Rucho. If passed, the law would prohibit states from implementing a redistricting plan that intentionally or effectively favors or disfavors one political party.
The ban on intentional partisan gerrymandering would prohibit the brazen political motives that were on display in Rucho.
There, Maryland’s Democratic governor openly testified that the goal of the redistricting process was “to change the overall composition of Maryland’s congressional delegation to seven Democrats and one Republican by flipping” one district.
Likewise, North Carolina Republicans admittedly drew their state’s congressional districts to elect 10 Republicans and three Democrats because they believed it would not be “possible to draw a map with 11 Republicans and two Democrats.” The Freedom to Vote Act would, for the first time, prohibit this openly partisan behavior.
But don’t expect state officials to continue broadcasting their motivations if the bill takes effect. This is why the law’s ban on maps that have a materially partisan effect is so critical.
The Freedom to Vote Act creates a presumption that a redistricting plan is impermissible if it creates a partisan advantage of 7% or one congressional district, whichever is greater. So how do we calculate partisan advantage?
Quantitative Measures for Evaluating Redistricting Plans
The bill instructs courts to employ “standard quantitative measures of partisan fairness that relate a party’s share of the statewide vote to that party’s share of seats.” These “measures” must be applied to a defined dataset to be meaningful.
The bill uses a state’s last two presidential elections and last two Senate elections to provide the relevant data.
If a map exceeds the 7% or one-seat threshold in at least two of those four elections, it is presumptively unlawful. In larger states with at least 14 congressional representatives, 7% would be the limiting constraint; smaller states would be limited by the one representative maximum.
Now for the “standard quantitative measures.” There are two prominent—or “standard”—redistricting metrics that evaluate partisan fairness using a “party’s share of seats.”
The first is the “efficiency gap.” The efficiency gap measures inefficient votes.
When a map “packs” voters of a particular party into a single district so that the party wins the district by large margins, the votes over and above 50% (plus one) are considered inefficient because they were unnecessary to win and, under a different redistricting scheme, could have been used to elect another candidate of those voters’ preferred party.
Likewise, a map also produces inefficient votes when it “cracks” members of a particular party into many different districts where they reliably lose by small margins, thus forcing voters to spend their votes on a distributed number of fruitless efforts rather than in conjunction on a successful one.
The efficiency gap captures the effect of cracking and packing by subtracting the number of inefficient votes cast by one party from the inefficient votes cast by another party and dividing the difference by the total number of votes cast in an election.
If a state with five million voters produced 500,000 inefficient Republican votes and 100,000 inefficient Democratic votes, its efficiency gap would be 8%. Such a map would presumptively violate the Freedom to Vote Act.
Partisan Bias Gap
The second applicable metric is the “partisan bias gap.” In an ideal world, if a state election were perfectly tied—50% of the state voted Democratic and 50% of the state voted Republican—half the state’s representatives would be Democrats and half would be Republicans.
Thanks to partisan gerrymandering, however, that is not the case in many states. Instead, in the real world, a 50-50 vote would result in more representatives for the party that engaged in gerrymandering. The partisan bias gap measures that disparity.
A state’s partisan bias is the difference between the actual share of representatives a party would receive in a 50-50 election and the optimal share of representatives a party would win in a 50-50 election, that is, 50%.
If a state with 20 congressional representatives draws its maps so that in a 50-50 vote 12 Republicans and eight Democrats are elected, it grants Republicans 60% of the seats despite having won only 50% of the votes. This produces a partisan bias gap of 10%—a presumptive violation of the Freedom to Vote Act.
Enforcement of the Freedom to Vote Act
When a map triggers the threshold established by one of these two metrics, the bill also provides a streamlined mechanism for bringing legal challenges to a disputed map. The bill permits both individual residents of a state and the U.S. Attorney General to sue to enforce the law.
These plaintiffs can file suit in federal court in either the U.S. District Court for the District of Columbia or in the relevant state. All appeals under the law would be heard in the U.S. Court of Appeals for the District of Columbia Circuit. This should have the effect of promoting uniformity in the bill’s enforcement.
Now, what effect can we expect the Freedom to Vote Act to have on the nation’s congressional maps?
Identifying Partisan Gerrymandering on PlanScore
Campaign Legal Center’s PlanScore tool identifies states that may need to fix their existing maps to comply with the law. It also indicates how new map proposals might fare under Freedom to Vote Act scrutiny.
PlanScore is a helpful tool for quickly flagging the maps most likely to trigger the Freedom to Vote Act’s presumption, but it is not definitive in this respect. PlanScore is a predictive tool that estimates a particular map’s likely partisan bias in future elections, while the bill uses past results to evaluate plans, as discussed above.
PlanScore suggests that existing maps in Michigan, Ohio, Wisconsin and elsewhere could trigger immediate scrutiny for impermissibly favoring Republicans — the maps in each state have both efficiency gaps and partisan bias gaps well exceeding 7% (in fact, Wisconsin’s 11% efficiency gap is the least bias score of the three states).
Likewise, the Maryland map discussed above would impermissibly create a Democratic bias of one congressional seat. If passed, the Freedom to Vote Act would require these states to reduce the partisan bias in their maps during the current redistricting cycle.
Only a handful of states have begun introducing new maps this year, but early signs reinforce the need for federal guardrails to curb partisan bias. In Indiana, for example, the state’s House of Representatives approved a map with a 14.5% efficiency gap.
Under this map, Republicans would control seven of the state’s nine congressional seats; under the Freedom to Vote Act, however, Republicans would likely be permitted to control no more than six seats.
In New York, meanwhile, Democrats are reportedly strategizing to introduce a new congressional map that would flip five of the state’s eight Republican seats. The result would be 23 Democratic seats and three Republican seats in a state where over 35% of voters favored Republicans in the last two presidential elections.
The Freedom to Vote Act would guard against maps like these and others like them that are on the way.
Partisan gerrymandering has already distorted representative democracy in the United States, and early signs suggest that partisan influence over redistricting will only escalate in the 2021 redistricting cycle.
The Freedom to Vote Act would change that. By invalidating most congressional maps that create a partisan skew of over 7% or one congressional seat, this essential legislation would end entrenched gerrymanders and prevent new ones.
No matter our color, background or zip code, we believe that voters pick our leaders, our leaders should not get to pick their voters. With once-a-decade redistricting taking place over the next year, the time to act is now.