Research Matters: Nicholas Stephanopoulos on “The Consequences of Consequentialist Criteria”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Nicholas Stephanopoulos, Assistant Professor of Law, wrote “The Consequences of Consequentialist Criteria” for a symposium on election law held last fall at the University of California, Irvine School of Law. It will be published in an upcoming issue of the UC Irvine Law Review and can be found online here. The paper explores the real-world effectiveness of redistricting that is “consequentialist” – that is, designed with electoral consequences in mind. 

Q. How did this research come to be?

A: In the last generation, there have been two major theories that have been proposed as to how states should redraw their districts.  One of those theories said that districts should be drawn to be as competitive as possible, and the other theory said district plans as a whole should treat both major parties fairly, or symmetrically. What I found really interesting was that a number of states have tried to do exactly that, either to draw competitive districts, or to draw district plans that are fair overall. And yet no one in the legal literature or in the political science literature had tried to figure out how well these states have done. Nobody had investigated whether the theories actually worked on the ground. So the idea for this paper was to first identify all the states that have tried to either draw competitive districts or district plans that are fair to both parties, and then to actually investigate, empirically, whether their plans were more competitive, or fairer to the parties, than other states that don’t have those approaches. By the way, I call these criteria consequentialist because they’re focused on the consequences of different district plans.

Q. And?

A: What I found for the most part was that consequentialist criteria don’t seem to work that well in practice. If you compare states that have either partisan fairness provisions or competitiveness provisions, their plans are a little bit more fair and a little bit more competitive than states that don’t have those provisions, but those gaps disappear once you control for other factors that also might be having an impact, such as whether control of the government is unified or divided, or the size of the state, or whether the state is covered by the Voting Rights Act. Once you include those other variables, the impact of the consequentialist criteria typically tends to disappear. So that’s a bit disappointing, that these provisions that reformers and academics have been clamoring for don’t seem to work that well.

My hypothesis as to why they don’t work well is, first, they’re often not written that well. They’re written in very vague terms, such as ‘there should be an effort to assure fairness to the parties’ or ‘districts should be drawn so as to be competitive.’ But typically the terms aren’t defined, and there’s no enforcement mechanism built in to make sure that they’re followed by whoever’s doing the line drawing. And also, whenever you draw district lines, there’s a whole bunch of criteria that you have to follow, and often these consequentialist criteria were ranked really low. In several states, they were the final criteria mentioned. So, only after every other goal – equal population, respecting town and country boundaries, making sure minority districts are drawn – only after all those things are met would the state also try to draw competitive or fair districts. We haven’t had a good test yet of how well these would work if they were in fact either the top priority, or at least the top discretionary priority.

Q. Why is knowing this important?

A. Both in election law and in legal academia in general, there’s a tendency to just engage in abstract theorizing, but not to investigate how well those theories actually play out in the real world. I see the usefulness of this paper as being primarily to test these very salient theories, and I think that’s a really important function of legal scholarship.

I also think this research has consequences for actual policy change. It means that states should be a bit hesitant about adopting these consequentialist criteria. If in fact they don’t produce improvements in partisan fairness or competitiveness, then you start to wonder why you go through the hassle of even adopting them.

I did find out that while these consequentialist criteria might not work too well, what does seem to work well, empirically, is institutional reform. So that means switching from redistricting done by the legislature to redistricting done by an independent commission or by a court. I found that if you use a commission or a court to draw district lines, you do get a real boost in partisan fairness and competitiveness. I think the message for reformers might be, don’t focus on criteria, focus on institutional change. That’s the real way to accomplish your goals. Even if your goals are these consequentialist things, ironically the best way to achieve them is not by requiring those things, it’s by switching who’s in control of redistricting. And notably on that point, I’m involved with an effort in Illinois to establish a redistricting commission in this state through a voter initiative. And part of why we decided to go with a commission instead of just coming up with new criteria is exactly this point, that a commission seems to work better, and criteria alone don’t seem to have the impact that reformers want. So I think the research is already having some consequences in that it’s affecting how we think about what our goals should be in Illinois for reform.