Utah legislature proposes changing state law on redistricting requiring new standards for judges evaluating maps

SALT LAKE CITY (ABC4) — The Utah legislature is proposing a change to state law to require a new “partisan bias test” for judges who evaluate congressional maps.

The bill was posted Sunday evening on the agenda of the legislative redistricting committee, which will discuss it during its first public hearing since being ordered to draw new congressional maps.

The bill is slated to be voted on during the upcoming October 6 special session, and if it passes with a two-thirds majority, it would require judges, including Third District Judge Dianna Gibson, to use a new “partisan bias test” when determining congressional symmetry, or whether each party is represented fairly.

“Proposition 4 is specific that it wants ‘partisan symmetry,’ said the bill’s chief sponsor, Sen. Brady Brammer (R- Alpine), citing Gibson’s ruling. “This is the statistical model that came with the best recommendations both in terms of academic studies and use in redistricting cases to address partisan symmetry,” he said.

Judge Gibson directed the legislature to draw new maps after determining that they violated Utahns’ rights to alter their government when they overturned the 2018 citizen-led anti-gerrymandering commission and criteria of Proposition 4.

Judge Gibson’s ruling schedules an evidentiary hearing on October 23-34 to determine whether the legislature’s new maps follow Prop 4, and allows the plaintiffs to submit alternates.

Brammer said the proposal was coming forward now so that both the legislative and the plaintiff’s submitted maps “can be viewed for compliance with this statistical model.”

But the lead lawyer for the groups that successfully sued the legislature says that the new test uses a standard that never happens in Utah and will still favor Republicans.

“This bill rewrites Proposition 4 to allow the very thing the initiative prohibits — maps that favor a single political party,” said Mark Gaber of the Campaign Legal Center. “By reverse engineering a metric to cement Republican control, the proposed bill unconstitutionally neuters Proposition 4,” he said.

How would it work?

The new criteria builds on the hierarchy of standards created by the voters in Proposition 4.

Those include the following of federal redistricting laws, the Voting Rights Act provisions of equal populations, keeping communities of interest together, and preventing dividing districts “in a manner that purposefully or unduly favors or disfavors any incumbent…”

But the new proposed provision adds that, “a redistricting plan that is symmetrical under the partisan bias test does not unduly favor or disfavor (an incumbent).”

That bias test requires a judge to choose one statewide election for the last three election cycles and average each party’s results. Then, they must calculate the difference each party would get if they received exactly 50% of the vote.

Partisan bias exists if one party wins more than 50% of the districts in this hypothetical election.

So, taking the last three governor’s races for example, Republicans average 61.3 percent to Democrats 30.3.

Applying a uniform swing so each party is equal to 50% means an 11.3 swing, so Utah Republicans’ adjusted share would be 50% and Democrats 41.6%.

In this scenario, Republicans would win more than half of Utah’s congressional districts, indicating a biased map.

The criticism of this type of test is that it assesses partisan fairness in a hypothetical that doesn’t exist, instead of using the reality of Utah election data.

“It’s a model to ensure that a map does not unduly prejudice or favor either Republicans or Democrats,” said Brammer, noting that Utah’s margins of registered Republicans to Democrats will bear out regardless of how they draw the maps. “This provides an objective standard to make sure that the votes determine representation and not the maps,” he said.

The bill states that if two-thirds of both chambers approve it, the bill takes effect as soon as the governor signs it. Otherwise, it takes effect on December 6.