ENHANCING COMPETITIVENESS IN REDISTRICTING
One of the fundamental
characteristics of democratic government is that voters have a
meaningful choice among candidates on the ballot.
The 2002 congressional election sorely tested the degree of
democracy in the United States. Pundits
widely reported the 2002 congressional elections as the least
competitive in modern history. Only
40 – plus or minus a few – out of 435 House races were considered
close enough going into election night that the outcome was not known
with a high degree of certainty.
How can the country
regarded as leader of the free world host legislative elections whose
competitiveness is nearly on par with one-political party dictatorships
such as Cuba, old Iraq, Libya, and the old Soviet Union?
The answer lies in how the districts are drawn.
Districts are redrawn every ten years in a process known as
redistricting. Only in the
United States do the politicians have so much say in how their districts
will look. Democracy is
turned on its head during redistricting – instead of the voters
choosing the representatives, the representatives choose the voters.
Naturally, they choose voters that will further their political
goals, not enhance democracy.
How to create
competitive districts? To
answer this question, the goals of those drawing the districts are
examined here so that their motivations may be understood, and why they
prefer to create non-competitive districts.
The genius of the federal system of the United States has
produced multiple redistricting criteria and processes across the fifty
states, and thereby provides examples of what does and does not work to
enhance competitiveness in redistricting.
These are broadly defined into: redistricting criteria,
redistricting procedures, and electoral procedures.
Each item within these categories is briefly described below,
including a discussion of its effect on competitiveness and prospects
for reform.
Overall
Recommendations for a Commission System
A proposed
redistricting process that will produce competitive elections is a
commission system. These recommendations are based on the
Arizona commission model, with lessons drawn from elsewhere.
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The
commission should have an odd-number of members and use a majority
rule to select a redistricting plan.
This institutional framework prevents stalemates
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An equal
number of partisan appointees to the commission should select an
odd-numbered, tie-breaking member as the first order of business.
This allows all commission members to have the same
information throughout the entire process.
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The
selection procedure should insulate members from political
influence, while at the same time providing for partisan
representation on the commission.
Members should not be allowed to run for election in the
districts they create.
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The
commission should be given adequate funding to carry out its duties
free of political interference.
The state government should be constrained in funding of
lawsuits challenging the commission’s work. In the event of extraordinary
circumstances, such as a protracted lawsuit, the commission should
be given adequate funding to continue it's work.
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The
commission should meet in public, and should actively solicit public
input. It may be necessary for the commission to meet in
closed session to consult with attorneys.
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The
commission should have immediate State Supreme Court review, to
promptly deal with state law objections.
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The entire
process should be delineated and occur in a timely manner, so that
candidates may file to run in the new districts.
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The
commission should have a competitiveness requirement in drawing
districts, as so much as that requirement does not conflict with
other legitimate goals of redistricting, such as population
equality, adhering to the Voting Rights Act, etc.
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The
commission should not be allowed to know the location of incumbent
homes when drawing districts. Information
regarding partisan voting is necessary, however, in order to gauge
the competitiveness of districts.
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The
commission should be given the same legislative authority of the
legislature (this prevents certain lines of litigation).
What is Gerrymandering
?
A special word
has been devised to describe manipulating district boundaries to affect
a political outcome – gerrymandering – in dubious honor of a
state legislative district proposed by Massachusetts Gov. Elbridge Gerry
in 1812 that bore a striking resemblance to a salamander.
Redistricting affects the careers of politicians and the
representation of political parties and racial groups.
Incumbents, political parties, and racial groups all have a role
in the redistricting process, so understanding the motivations of these
players and how their motivations interact with one another is important
to understanding how the redistricting process operates in practice and
shapes outcomes.
The
three types of gerrymanders are:
- Partisan
gerrymandering: The goal of a partisan gerrymander is to gain
partisan advantage through redistricting.
Partisan gerrymanders occur when one political party controls
the entire redistricting process.
For a state legislature, the goal of a partisan gerrymander
may be to secure majority control, while for congressional
districts, it may be to maximize the number of seats a party will
win in a state. These two goals are subtly different, but have generally
the same effect on redistricting.
The strategy
behind the ideal partisan gerrymander is to “pack” and
“crack” supporters of the opposing political party.
Opposition supporters are “packed” into extremely safe
districts in order to waste their votes in pre-determined elections.
The gerrymandering party efficiently distributes their
supporters across the remaining districts, placing just enough in each
district to comfortably win, but without stacking itself.
Opposition party supporters are “cracked” across these
districts, wasting their votes in elections that their party’s
candidate cannot win.
Districts
created in a partisan gerrymander tend to be non-competitive.
The opposition party’s districts will tend to be extremely
safe while ironically the gerrymandering party’s districts are a
little less so, so that their supporters may be more efficiently
distributed throughout a jurisdiction.
Sometimes the practicalities of the political geography of a
state will limit the partisan gerrymander, enabling the creation of a
few competitive districts currently represented by the opposition
party that the gerrymandering party hopes to pick up in the following
elections.
- Incumbent
protection gerrymandering: The goal of an incumbent protection
gerrymander is to secure reelection for incumbents.
Often this form of gerrymander represents a compromise
between the two political parties, a situation which is forced when
one party does not exclusively control the redistricting process.
Redistricting is one of the few
political processes that lends itself to bipartisan compromise.
Two representatives from different parties, whose districts
adjoin, are willing to make mutually beneficial trades.
A Democrat representative is willing to swap with a Republican
representative, Republican voters for Democratic voters.
Both representatives gain electoral security through this
trade. Incumbent
protection gerrymanders tend to produce the least competitive
elections.
- Racial
gerrymandering: The
goal of racial gerrymandering is to secure the election of
candidates of choice of a particular race.
Section 2 of the Voting Rights Act (VRA) is a Federal mandate
that requires the drawing of special majority-minority districts
under certain circumstances: a minority population is large enough
to draw a district around and racially polarized voting patterns
exist (i.e., racial groups voting for candidates along racial
lines). Section 5 of the VRA
requires that "covered jurisdictions" (primarily South and
Southwestern states) clear changes to their electoral laws with the
Department of Justice or the District Court of DC. Originally,
the 1965 VRA was designed to protect African-Americans, but was
extended in 1982 to include “language minorities” such as
Hispanics (hereafter these racial groups are what is meant by the
term “minority”). Although
today racial gerrymandering is typically equated with the drawing of
minority districts, non-minorities may use racial gerrymandering to
prevent the election of minorities to public office.
Because minorities
tend to be poorer and less educated, they tend to vote at lower rates
than the non-minority population.
Majority-minority districts thus need more than a simple
majority of minority citizens within their borders in order for
minorities to be assured of electing a candidate of their choice.
Minorities, except for Cuban-Americans, tend to vote in
substantial majorities for Democratic candidates.
Furthermore, those non-minorities living in minority
neighborhoods tend to be of similar poverty status, and also tend to
favor Democrats. The end
result is that majority minority districts, with the exception of
Cuban-American districts, tend to be non-competitive Democratic
districts (and also tend to be an inefficient “stacking” of
Democratic voters for partisan gerrymandering purposes).
None of these three
types of gerrymanders results in competitive districts.
Incumbents prefer a certain and decisive win, not only to retain
their job, but also to frighten off future challengers.
Political parties prefer certain victory to the possibility that
the other party will win elections.
Racial groups prefer their candidates win with certainty, rather
than the chance that they will lose.
As these interests often have control over redistricting at some
point in the process, the deck is stacked against the creation of
competitive districts.
In considering the
following discussion on redistricting reforms, it is important to
remember that any redistricting plan has political effects.
Even reforms that appear neutral may have hidden
“second-order” biases that indirectly favor one political interest
over another. For example,
Hinds County in Mississippi had an innocuous sounding provision that
required all County Supervisor districts to have equal highway mileage,
because one of the duties of the Supervisors was to maintain the county
roads. One consequence of
this law was to split the city of Jackson, and was an effective racial
gerrymander that fragmented the African-American community living in the
urban city. Whether accurate or not, the perceived political consequences
of redistricting reform will have to be addressed in order for reform to
be successful.
Enhancing
Competitiveness in Redistricting
The following
discussion of ways to improve competitiveness in redistricting is
organized into three categories: (1) redistricting criteria that
constrain the choices available during redistricting (2) redistricting
processes that create an environment for the creation of competitive
districts and (3) electoral procedures that may enhance competitiveness.
For each item within these categories, a description of the item,
its effect on competitiveness, and prospects for reform is provided.
Redistricting
Criteria
1. Contiguity
Description: Contiguity means that all parts of a district must
be connected. There are
examples of districts in the United States that are connected across
bodies of water (such as the so-called "canoe districts" in
Hawaii or those that cross a river without a bridge), and of districts that are “point” contiguous (e.g., a
district that is connected kitty-corner at an intersection).
For the most part, contiguity is the most widely accepted
criterion for drawing districts. There
are examples around the world (and even occasionally in the United
States) of districts for the same legislative body that overlap, but
even these districts are still contiguous.
Competitiveness
Effect: Contiguity constrains the number of possible districting
plans, and as such reduces the mischief of gerrymandering.
Non-contiguous districts may exist that are more competitive than
any contiguous district, however, on the other side of the coin, there
are likely to exist less competitive non-contiguous districts, too.
Prospects for
Reform: Every state constitution requires contiguity, as does
federal law mandating single-member districts for Congress.
Allowing non-contiguous districts would be a radical departure
from precedent and would be met with strong resistance, and would
provide little obvious benefit.
2. Compactness
Description: Compactness is another generally accepted criteria
for redistricting that is often encoded into state constitutions.
Together with contiguity, compactness reflects the notion that
districts should be composed of a tightly defined area so that
representatives may be able to more efficiently communicate with their
constituents. “Bizarrely” (in the words of Justice O’Conner) shaped
districts are an indicator of political intent in redistricting, as
political concerns are most visible in districts that incorporate within
their boundaries certain areas over others.
The reverse is not necessarily true, as a compact district may
still be cleverly drawn to affect a political end.
Compactness is often in
opposition to the other redistricting criteria.
Majority-minority districts created under the mandate of the
Voting Rights Act often have contorted boundaries in order to group
minority communities into a single district.
These districts then force adjoining districts to assume
non-compact shapes. Furthermore,
natural geographic or political boundaries are often not compact, and
following these boundaries produces non-compact districts.
Although the concept of
compactness is easily grasped, implementing a standard of compactness is
much more difficult. There
are multiple standards; among suggested measures of compactness are: the
length of the district boundary, how well a district fits inside a
square or circle, and the weighted average of the center of population
of a district. Ironically,
a district that fares well under one standard may fare poorly under
another. The U.S. Supreme
Court (see Bush v Vera) and state Supreme Courts have
considered compactness measures in deliberating the shape of districts,
but have not officially adopted a measure, relying instead on
“eye-balling” of districts to identify non-compact districts.
Competitiveness
Effect: The effect of a compactness standard is dependent on the
political geography of a jurisdiction.
If voters in a jurisdiction are neatly distributed into
communities from which compact districts may be drawn around, a
compactness standard may decrease competitiveness.
If the political landscape is a heterogeneous patchwork of
disparate political communities, then forcing the combination of
communities would likely lead to more competitive elections.
It is possible that non-compact districts could achieve the
desired mixing of political interests, too.
Furthermore, compactness is not a panacea, since cleverly drawn
compact districts may still be non-competitive.
Prospects for
Reform: The devil is in the details.
Compactness has multiple definitions, so one would have to be
chosen, and it has detrimental effects on other redistricting criteria
(e.g., respecting communities of interest and the Voting Rights Act.).
Even so, many states explicitly require districts to be compact without
specifying a standard.
3. Respect for
Communities of Interest/Existing Political and Geographical Boundaries
Description:
The requirement that district boundaries follow existing
political or geographical lines, or respect identified communities of
interest, is sometimes found in state constitutions.
These requirements address the heart of the concept that
contiguity and compactness together hope to accomplish: basing districts
on communities with a shared interest.
These are typically separated into two separate criteria, one
regarding respect for existing boundaries, and another respecting
communities of interest. The
former are easy to identify on a map, the latter require states to hold
citizen meetings in locations across a jurisdiction in order to
determine where communities of interest exist.
Sometimes communities of interest correspond to existing
boundaries, but this is not always the case as communities of interest
may sometimes be bounded by something as mundane as a road.
Competitiveness
Effect: Communities of interest are by definition, communities with a
shared common interest, and as such tend to be politically homogenous.
Competitiveness requires a mixture of interests to spark debate
and exchange of ideas during political campaigns.
District boundaries that separate communities based on their
shared interest tend to reduce competitiveness.
Prospects for
Reform: In Miller v Johnson, the U.S. Supreme Court
identified respect for communities of interest as a legitimate goal of
redistricting. The
criterion is also codified into some state constitutions.
4.
Voting Rights Act (§ 2 and
§ 5)
Description: The
Voting Rights Act (VRA) is a Federal mandate that requires the drawing
of special majority-minority districts under certain circumstances: a
minority population is large enough to draw a district around and
racially polarized voting patterns exist (i.e., racial groups voting for
candidates along racial lines). Originally,
the 1965 VRA was designed to protect African-Americans, but was extended
in 1982 to include “language minorities” such as Hispanics.
In covered
jurisdictions under § 5, primarily the South and non-Southern states
with substantial minority populations, all levels of government must
submit any change in electoral law – including redistricting – to
the Justice Department or the District Court of DC for approval or “preclearance.”
Any racial group in the United States may challenge an electoral system
they feel is biased against them under § 2.
Competitiveness
Effect: Produces non-competitive elections within
majority-minority districts. Majority-minority districts tend to be overwhelmingly packed
with minority populations. Minorities
tend to vote at lower rates than non-minorities, so majority-minority
districts need to contain a super-majority of minority voters in order
for minorities to be able to elect a candidate of their choice.
Furthermore, the overall partisan tendencies of non-minorities in
minority communities tend to reinforce the partisan leanings of the
majority-minority districts.
In
Democratic-leaning jurisdiction, may enhance competitiveness in
remainder of districts. Except
for Cuban-Americans, minorities tend to align themselves with the
Democratic Party. As a
consequence, majority-minority districts tend to be uncompetitive
Democratic districts. Creating
majority-minority districts in a Democrat-leaning jurisdiction will tend
to equalize the partisan balance of the remainder of the jurisdiction,
enhancing the prospects for the creation of competitive districts.
In
Republican-leaning jurisdiction, may decrease competitiveness in
remainder of districts. Using
the same logic as above, in a Republican leaning jurisdiction, the
creation of majority-minority districts makes the remainder of a
jurisdiction more Republican, diminishing the prospects for the creation
of competitive districts.
Prospects for
Reform: As the degree of racially polarized voting decreases, the
primary reason for the creation of majority-minority districts under the
VRA will diminish. Unfortunately,
there remains substantial evidence of racially polarized voting, though
there are indications of a lessening of racially polarized voting in
some jurisdictions. The
challenge is to define the threshold where the special protections of
the Voting Rights Act are no longer necessary.
5. Equal Population
Description:
The United States Supreme Court ruled in Reynolds v Sims
and Wesberry v Sanders that state legislative and
congressional districts must be of equal population size.
In subsequence rulings,
(such as Karcher v Daggett) the Supreme Court has ruled
that congressional districts must have perfect equality of population;
though small deviations have been allowed in some states if there is a
compelling state interest, for example in 1991 Texas had a 0.82%
deviation in its 1991 map that was upheld by the courts while a Kansas
plan with 0.92% was rejected.
For state legislative
districts, the United States Supreme Court has generally allowed larger
deviations, upwards to 10%, from the smallest to the largest district;
larger deviations are permissible if a jurisdiction can again prove a
compelling state interest to do so.
Some state constitutions have specific equal population clauses
in their constitutions, and State Supreme Courts may interpret the state
constitution to require less than a 10% deviation.
For example, the Illinois Supreme Court has interpreted that
state’s constitution to require a 1% population deviation for state
legislative districts.
Competitiveness
Effect: Initially, the equal population mandate perhaps did more to
increase competitiveness than any change in electoral laws in the
history of the United States. Prior
to equal population requirements, some states had not redistricted for
60 years or more, creating a “creeping” gerrymander that favored
interests representing politically homogenous rural districts.
An unintended
consequence of the equal population mandate is that redistricting now
must occur at the beginning of each decade with the release of a new
census of population. As
redistricting tools have become increasingly sophisticated, those in
control of redistricting have been able to manipulate the
process to produce uncompetitive districts.
Prospects for
Reform: None at the Federal level.
The Supreme Court has interpreted the Equal Protection Clause of
the Fourteenth Amendment as providing the guarantee of equal population
districts.
State constitutions
could be changed to increase equal population with regards to state and local redistricting, but it is
not clear what the effect would be on competitiveness.
Population equality constrains gerrymandering, since there are
fewer maps that can be created with equal population.
However, there may exist maps with sizable population deviation
that are more competitive than any map with zero population deviation.
Given the uncertain impact on competitiveness, a strict equal
population clause should be omitted from a state constitution in order
to allow small flexibility in enhancing competitiveness in districts and
other redistricting goals (e.g., incorporating an entire city within a
district that otherwise would require a split of that city – a split
that would likely be made along political considerations).
7. Incumbent and
Partisan Blind Redistricting
Description:
Incumbent and partisan blind redistricting criteria seek to
remove political considerations from redistricting.
In the case of incumbent-blind redistricting, those drawing the
maps cannot know the location of incumbent’s homes.
There are two sorts of methods to require partisan-blind
redistricting, either through limiting the use of election information
in the course of redistricting, or through language that states that
redistricting should not be used to favor one party over another.
Competitiveness
Effect: Incumbent and partisan blind redistricting criteria improve
competitiveness by limiting these two powerful interests – incumbent
and partisan – both of which prefer safe districts.
Limiting the use of
election data during redistricting, however, may have a negative effect
on competitiveness, since these election data are necessary to determine
the competitiveness of a district, and how to improve that
competitiveness.
Prospects for
Reform: The U.S. Supreme Court has implicitly acknowledged that
incumbency and partisanship are legitimate goals of the redistricting
process, though the court has ruled in Davis v Bandermere
that there is a limit to partisan gerrymandering (though the court has
only once overturned a plan based on partisan gerrymandering, and that
plan regarded at-large districts versus a districting system in North
Carolina). There is much speculation regarding Vieth, the most recent
partisan gerrymandering case yet to be decided by the Supreme
Court. However, the Court has never ruled that limiting
these interests in the course of redistricting is unconstitutional, and
indeed, some states have adopted such redistricting criteria.
8. A Competitiveness
Requirement
Description:
Two states – Arizona and Washington – explicitly require their
redistricting commissions to draw competitive districts, as long as
doing so does not interfere with other legitimate goals of
redistricting.
Competitiveness
Effect: Obviously increases competitiveness, where possible.
In the two state constitutions with competitiveness clauses,
competitiveness is subordinate to other criteria, such as equal
population, adherence to the VRA, respecting of communities of interest,
etc.
Competitiveness has
political effects. Competitive
districts are not in the interest of incumbents, as they will increase
their chances of being defeated. Competitiveness
benefits the minority statewide political party since creating more
competitive districts enhances their probability of increasing their
number of election victories, and conversely, hurts the majority
statewide political party. It
is not a coincidence that the primary advocate of Arizona’s
Proposition 106, which created their commission system in this
Republican leaning state, is a Democratic Party leader.
Prospects for
Reform: This is a reform that meaningful political effects, and as
such should be carefully handled to build consensus among the political
elite in a state considering redistricting reform.
Redistricting
Procedures for a Commission
1.
Commission Membership
Description: To
enhance competitiveness, commissioners should be as non-partisan as
possible. Some state constitutions stipulate that the commissioners are
either actual elected officials or are directly selected by elected
officials. Commissions with
these selection criteria magnify the role of party leaders in the
redistricting process, and these commissions often work in secrecy, both
to the public and their own legislative membership.
There are two
alternatives to this selection mechanism, the Arizona and Iowa models.
Arizona
In Arizona, the
Commission for Appellate Court nominates twenty-five persons for
consideration. Ten must be
registered from each of the two largest political parties in the state,
and five must be registered else wise. Candidates for the commission must have been registered with
a party for three consecutive years prior to nomination.
In that time, they cannot have been elected to any public office,
including precinct committeeperson of a political party (but excluding
school board), cannot have been paid as campaign staff, and cannot have
registered as a paid lobbyist. The
four legislative leaders each choose one among twenty-five members.
The four chosen members then select a fifth member, not
registered with a political party represented among those currently
chosen. After serving on
the commission, commissioners are forbidden to run for office in any of
the districts that they have created.
Iowa
Iowa follows the model
of redistricting commission used in nearly every other industrialized
democracy that requires redistricting.
In Iowa, the Legislative Research Bureau – legislative support
staff – have primary responsibility for drawing districts.
Members of the LRB are career bureaucrats that are insulated from
firing decisions. There is
some anecdotal evidence that the LRB is politicized as a consequence of
its important redistricting function, and some evidence that the
Boundary Commission in Great Britain has produced new boundaries with
political effects (see research by Ron Johnston, a British political
geographer).
The Iowa model departs
from other country’s redistricting systems when the LRB proposes maps
to the legislature for their approval.
It is here that the legislature may take control of
redistricting. The LRB
offers up to three maps in succession, and the legislature may adopt any
one map by a majority vote. If
the legislature fails to adopt a LRB map on the third attempt, then the
legislature takes control of redistricting.
Discussion
It is unfortunate that
Iowa is a politically competitive state, with a heterogeneous population
that makes it difficult to create any map other than a competitive one.
Many pundits have applauded the results of the Iowa redistricting
and have called for the universal adoption of the system, even though it
has serious flaws – namely the ability of the legislature to take
control of the redistricting process.
These pundits also ignore the highly politicized legislative
support staff that exists in other states that would be in charge of
redistricting.
In contrast, Arizona is
a Republican leaning state and was required to draw two
majority-minority Hispanic congressional districts in order to be approved by the
Justice Department under section 5 of the VRA. After drawing these
two uncompetitive Democratic districts, the remainder of the state was
even more Republican, and the commission only realized the opportunity
to draw one competitive congressional district.
There is a downside to
completely removing partisan interests from the redistricting process.
Consider Washington’s commission, which has a balanced number
of partisans and a super-majority requirement of adoption of a map: the commission is forced to adopt a bi-partisan
compromise among party leadership, which effectively means that the parties will negotiate a
redistricting settlement within the commission, rather than going to
court. In Arizona, a citizen
commission drew the maps. Lacking an
agreement among the party leadership, Democrats took the commission to
court over the maps. Still, providing the parties with a
direct approval of a redistricting plan does not mean that a compromise
will necessarily be forthcoming. Washington's
state legislature only avoided sending the state’s redistricting to the courts in 2001
by extending the deadline for the commission’s work.
Similarly, since the
Iowa legislature has always voted to adopt the LRB’s maps, the
political parties have not risked the political fallout of appearing to
subvert the system by taking the adopted map to court.
Indeed, state legislators, when asked why they voted for a map
that in some cases placed them in the same district as other
legislators, stated that they did so to remove the appearance of
politics (although, the legislature did reject the first proposed map in
2002, which had more incumbent pairings).
Competitiveness
Effect: In states where party leaders either are redistricting
commissioners or directly select commissioners, uncompetitive incumbent
protection or partisan gerrymanders result.
The two states with alternative selection criteria for those in
charge of redistricting tend to produce more competitive districts.
Prospects for
Reform: Reform of the commission membership selection process is
important in ensuring a non-partisan map is adopted, but will most
likely require use of popular initiative.
It is unlikely that legislative leaders will willingly give up
their power over redistricting. Even in Iowa, the legislature and governor still have an
approval vote of the LRB’s work and can reject the LRB map to produce
their own.
2.
Commission Voting Procedures
Description: There
are three types of commissions in terms of voting procedures: those that
have an odd number of members and a majority voting rule, those that
have an even number of members and a super-majority voting rule, and
those with an even number of members and a tie-breaking mechanism
through the selection of an additional member.
Competitiveness
Effect: Those with an odd number of members and a majority voting
rule are typically those that wherein state elected officials either
serve on the commission or handpick members.
These commissions have a majority of one party; and will
typically adopt a partisan gerrymander favoring their party, which tend
to be uncompetitive redistricting map.
Those with an even
number of members and a super-majority voting rule will require a
bi-partisan compromise, which typically results in an incumbent
protection gerrymander – the least competitive redistricting map.
Those with an even
number with a majority-voting rule typically result in a deadlock.
Some commissions allow the commission to deliberate for a
specified time before the selection of the tie-breaking member.
In Illinois, a fifth partisan member is selected randomly,
breaking the tie in favor of one party.
In other states, a court selects the fifth member.
This member is at a great disadvantage over the other
commissioners, who have experience and resources to draw upon.
Some commissions vote by super-majority vote at the outset to
select a fifth member. (Failing
the vote, a court selects the fifth member immediately.)
As this vote requires a compromise between the parties at the
outset, this sort of mechanism also favors the production of a
bi-partisan compromise, a.k.a., an incumbent protection gerrymander.
Even if a fifth member was appointed by a neutral court, the two parties
can always collude to shut out the "tie-breaking" member and
forge a bi-partisan incumbent gerrymander.
Prospects for
Reform: Some lessons can be drawn from the current systems.
One, establish the commission membership at the formation of the
commission. To do otherwise
puts additional members at a disadvantage with respect to current
members. Two, select an
odd-number of members, as an even number of partisan members may
deadlock.
3.
Commission Funding
Description:
Overlooked in many current redistricting procedures is how a commission
should be funded. As was the case in Alaska, the state legislature was unhappy
with the commission’s work and appropriated half a million dollars to
help litigate the case against the commission, while at the same time
barely funding the operations of the commission.
In Arizona, extensive legal proceedings exhausted the money allocated to
the commission. Partisan politics came into play when the
Democratic governor threatened to refuse to support additional funding
of the commission to defend their work against a lawsuit initiated by
the Democats.
Competitiveness
Effect: The power of the purse
may be used as a blunt object to force a commission to adopt a partisan
map, at the detriment of competitiveness.
Prospects for
Reform: Language should be considered redistricting reform to ensure
the commission can operate independent of the legislature.
The Arizona constitution does this, appropriating $6 million for
the commission’s work, and providing a mechanism to review that
funding in subsequent redistricting cycles.
Language might also be considered to forbid the state government
from appropriating any money in support of a case against a
redistricting commission, and to commit the state to fund any legal
defense of the commission's work.
4. State Supreme
Court Review
Description:
Some states require that a redistricting plan be reviewed by the
state Supreme Court before adoption in order to determine if it complies
with the state constitution. If
a plan is rejected by the state Supreme Court, it is returned to the
redistricting authority with instructions on how to bring the map into
compliance.
Competitiveness
Effect: If a state constitution has a competitiveness clause, this
would likely enhance competitiveness, as the state Supreme Court could
enforce competitiveness. State
Supreme Court review would allow for timely adoption of a map, without
the threat of further state lawsuits, and allow candidates to file for
the election in a timely manner and would encourage contested elections.
Prospects for Reform: Some states already have an experience with state Supreme
Court review, and would be receptive to a change in redistricting
procedure that included the provision.
It is unknown how other states would accept such a proposal, but
considering the courts are the most trusted part of the government,
review would probably be accepted without much criticism.
Electoral Procedures
1. Multi-member
districts
Description:
Most United States elections to congressional and state government use
single-member districts, i.e., one candidate is elected from each
district. A multi-member
district is a district wherein more than one candidate is elected to the
same legislative body, and is used in many local jurisdictions.
The “district size” of a multi-member district is the number
of candidates elected out of the district.
For example, a few state legislatures have a district of two,
that is, two members to the state legislature are elected out of one
district.
Multi-member districts
may also require a change in the election itself, in order to arrange
how voters will choose multiple candidates in the same district.
The United States has had the most experience with “at-large”
schemes, where multiple elections are held concurrently for each
legislative seat within a district.
Other countries, and some local elections in the United States,
have experience with “proportional representation” schemes, wherein
parties receive seats roughly equal to the proportion of the vote they
receive.
Without going into
detail of the many forms of proportional representation electoral
systems that go hand-in-hand with multi-member districts, there is a
tradeoff between representation and governability in multi-member
systems. Using proportion
representation with a high district size allows fringe parties to elect
candidates – often preventing the formation of a majority party –
and causes instability in the government.
The trick is selecting a district size (three or four, perhaps)
that is not too small as to encourage gerrymandering and not too large
as to severely fracture the party system.
Competitiveness
Effect: Generally, the larger the district, the more difficult it is
to finely slice district boundaries to effect a gerrymander.
This effect will be most pronounced in state legislative races
since nearly all state legislative districts (except for the California
and Texas Senate) have smaller average district population than the
state’s congressional districts, particularly in small population
states with a small number of congressional districts.
Increasing the district
size by itself only reduces the prospects for gerrymandering, but does
not completely solve the problem. Strategic
considerations of drawing districts will still exist in larger
districts. For example, congressional districts in small states may
still be gerrymandered. A
change in the district size should be accompanied by other changes to
the redistricting process that will enhance competitiveness of the
districts.
Increasing the
population size of a district will generally force the creation of more
heterogeneous districts. Accompanying multi-member district with proportional
representation would allow the creation of more heterogeneous districts
that would not diminish adherence to other redistricting goals, such as
the respect of communities of interest.
Increasing the district
size without proportional representation may severely hurt
representation. For
example, many Southern jurisdictions prior to the VRA used at-large
districts to deny representation to African-Americans, who constituted
less than a majority of a population within a city or county.
Unfortunately, this experience with at-large multi-member
districts has turned off many people to the concept of at-large
districts, even though proportional representation options exist that
would have a much different electoral effect.
Prospects for
Reform: Congress has
mandated single-member congressional districts, so any reform for
congressional districts must first come from Congress, and then the
states. Reform is likely to
be more fruitful first at the state legislative level.
Some states already use multi-member districts for state
legislative elections, typically with district size of two or three and
use at-large electoral schemes, rather than proportional representation.
Serious reform in this direction requires increasing districts
sizes in conjunction with some proportional representation option.
This is a radical change to the electoral system and would likely
receive considerable resistance from the political parties, as do many
electoral reforms, as it creates uncertainty and allows minor parties a
chance to seriously compete in elections.
In the 2002 Alaska primary, for example, an instant run-off
voting initiative was opposed by the political parties, and was
rejected overwhelming by the voters.
On the positive side,
the city of San Francisco recently adopted IRV.
In Illinois, former governors and other prominent politicians
have endorsed a return to the pre-1980 system of three-member districts
with proportional representation.
Opportunities for this reform exist, and will have the most
success where consensus is built among the political parties first.
2. Term Limits
Description:
Many states have restricted the number of terms that state
legislators may hold office. The
Supreme Court has ruled that the United States constitutions must be
amended for these laws to
Competitiveness
Effect: Since 1970, the average electoral margin that incumbents
enjoy over their challengers has increased at all levels of government.
Explanations for the rise of the so-called “incumbency
advantage” are varied among academics.
But whatever the cause, as a rule an incumbent is difficult to
defeat and usually will only attract a credible challenge if the
incumbent is perceived to be vulnerable.
Open seats, where no incumbent runs, are typically the most
competitive races. Term
limits creates open seats elections, and thus enhances competitiveness.
Term-limits have a
negative impact on representative democracy, since they constrain voters
from rewarding good representative with a return to office.
Representatives that do not face re-election in their last term
have no incentive to represent their constituents (unless they seek a
career in a higher office).
Prospects for
Reform: The politics
behind term limits will probably reduce their future adoption.
Term-limits were favored among Republicans in the early 1990s as
a way to remove Democrats from power in the House of Representatives,
whereas Democrats opposed the reform.
Since Republicans have maintained control of the House, they no
longer call for term-limits and Democrats have yet to support their
adoption.
3. Public Financing
Description: A
handful of states have begun experiments in offering public campaign
financing to qualifying candidates.
Competitiveness
Effect: Unknown at this time. In the general election, public
financing may increase competitiveness of candidates. However, it
also increases competitiveness in the primary and may offer fringe
candidates an opportunity to win even if they are opposed by their state
party because they would be unelectable in the general election.
Prospects for Reform:
At a national level, little reform is likely since public financing is
considered to generally benefit less well-financed Democrats. At
the state level, public financing may be successful in states that use
the initiative system or a history of progressive reforms, and have been
adopted in states such as Arizona and Maine.
4. Open Primaries
Description:
Open primaries allow voters from any party to vote in a party's
primary. Closed primaries allow only registered party members to
vote in the primary. Competitiveness
Effect: Open primaries are an alternative solution to the problems
of gerrymandering. By allowing voters from all parties to
participate in a party primary, candidates must appeal to all voters
rather than only their party base. The moderate candidate in a
contested primary is more likely to be chosen in an open primary than in
a closed primary. Thus, the selection of moderate candidates is
achieved through an alternative means than creating competitive
districts through redistricting. Prospects
for Reform: The political parties do not like open primaries and
have successfully campaigned against open primary voter initiatives.
Despite party opposition, open primaries are popular with voters, since
it gives them more choice. Where open primaries have been
successfully adopted, the political parties have successfully opposed
them in litigation. Perhaps a non-partisan primary system, like
that of Louisiana where all candidates run in one large primary, with
the top two candidates continuing to a run-off, might withstand legal
challenges.
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