Can Politics Be Removed From Redistricting?
By Daniel C. Vock, Staff Writer
For a few months next year, Ed Cook, a lawyer with the Iowa General Assembly's bill-writing agency, will turn his attention from drafting legislation to drawing maps. Cook and a handful of his colleagues will hole themselves up in a hidden, locked room in the state's Capitol complex. A few weeks later, they will emerge with a set of maps that will help determine the makeup of Congress and the state Legislature for the next decade.
Iowa is the only state to give nonpartisan staff so much control over the legislative redistricting process. In most states, redistricting is a political bloodsport, with Democrats and Republicans fighting to jigger district lines for partisan advantages, as well as individual job security. In Iowa, the job is chiefly the responsibility of just three people, although many others contribute.
There are rules they must follow.
First, Cook and his colleagues must try to make the districts as equal in population as possible. Then, they must try to keep counties, cities and other political boundaries intact. Finally, they must strive to keep districts contiguous and compact, as measured by specific formulas. Just as important is the information that Cook's team cannot use: the addresses of current legislators or any information about party affiliation.
Legislators get the final word over whether to adopt the plan. But rejecting it doesn't mean lawmakers get any more say over the final product. Rather, it simply means that the cartographic team goes back behind closed doors and produces another map. There's no telling if legislators will like the second version any better than the first. "There's the ability to say, 'Let's see what the next one looks like.'" Cook says. "But they can't guarantee what it looks like. So it's a gamble when they start rejecting a plan, because we're not going back."
Iowa is unique among states for the lengths it goes to insulate redistricting from politics. But the idea of removing politicians from the process has been gaining ground as a possible antidote to common complaints about Congress and state legislatures, from the presence of political gridlock and hyperpartisanship to members who overstay their welcome in tailor-made "safe seats."
As states prepare to redraw their political maps next year, Florida and California voters will decide whether to revamp their map-making methods on ballot measures. In Wisconsin, Milwaukee Mayor Tom Barrett, the Democratic nominee for governor, is calling on the state to use an independent body for redistricting. A dozen states use independent commissions, according to the National Conference of State Legislatures . Another five states resort to independent panels if their legislatures cannot produce a map by a certain deadline.
Independent does not necessarily mean nonpartisan, however. For example, Ohio uses an independent commission to draw legislative districts, but the members include elected officials: the governor, the state auditor and secretary of state, as well as two people selected by the legislative leaders of each major political party.
As in Iowa, the Ohio commission has rigid rules to follow — the most rigid rules for how to draw legislative districts in the country, in fact. But those rules favor Republicans. According to Michael McDonald, a George Mason University political scientist who is an expert in redistricting, the rules make it impossible for Democrats to create a favorable map for themselves. "That's the danger," McDonald says. "You can build in a gerrymander into the criteria."
A California commission?
The idea of using an independent commission has gotten a lot of attention lately in California, where the last redistricting process, done in 2001, was a famously distasteful exercise in politics. The map came under fire for protecting incumbents and giving both Democrats and Republicans safe seats.
California still hasn't had its last word about using an independent commission. In 2008, voters approved a ballot measure that gave redistricting power over to a group of 14 people — five Democrats, five Republicans and four independents — who would be instructed to draw maps that keep communities together within districts and ignore political considerations.
But there is a move in California to scrap the independent commission before it is ever used. Proposition 27, which will appear on the ballot in California in November, would give redistricting back to the Legislature and also restrict the amount of money lawmakers could spend on the task.
"It's better for redistricting to be done by the Legislature," UCLA law professor Daniel Lowenstein told the San Diego Union-Tribune in January. Lowentein is one of the authors of Proposition 27. "Redistricting is entirely a political matter, and there's one agency in California that is set up precisely for the purpose of resolving political matters, which is the Legislature, whose members are accountable to the voters in a political way."
As is often the case in California, voters this year also will have a chance to move in the opposite direction. Also on November's ballot is Proposition 20, which would give the newly created redistricting panel the job of redrawing congressional districts, too. That's no small matter in a state with 53 U.S. House seats — the most of any state — including Speaker Nancy Pelosi. In fact, the congressional delegation helped defeat a 2005 effort to overhaul the state's redistricting system. The 2008 measure that passed drew considerably less opposition because it applied only to the Legislature, not to Congress.
In Florida, the debate over redistricting reform isn't about forming independent commissions — two measures on the ballot this November would keep redistricting power with the Florida Legislature. But Questions 5 and 6 would specify what criteria legislators must use when crafting new districts. The measures, which apply to legislative and congressional redistricting, respectively, prohibit plans that are "drawn with the intent to favor or disfavor a political party or an incumbent." They also dictate that districts should be compact, equal in population and follow existing geographical boundaries.
Kelly Penton, a spokeswoman for Fair Districts Florida , the group behind the efforts, says legislators "do not have any rules to stop them from creating district lines to benefit themselves or their parties. The best interest of the voters is not looked out for." For proof, look no further than the odd shape of many districts, Penton says. "The districts break up many communities, cities and counties. Some stretch for hundreds of miles. Some stretch from coast to coast."
Legislators in the Republican-controlled Florida Legislature balked at the ballot measures and tried to add one of their own. But a trial judge ruled that the proposal written by legislators was too confusing and took it off the ballot. The Florida Supreme Court has agreed to hear an appeal of that decision.
Litigation in Arizona
Like Iowa, Arizona is often touted as a model for other states to follow when overhauling their own redistricting systems. Arizona uses a panel known as the Independent Redistricting Commission, which consists of two Democrats, two Republicans and an independent. Many of the provisions in the process California adopted in 2008 are strikingly similar to ones used by Arizona. But there are drawbacks to both Arizona's and Iowa's approaches.
Arizona began using its independent commission during the last redistricting in 2001. For most of the ensuing decade, the map that commission produced was tangled up in lawsuits. The litigation is directly tied to a rule that required map makers to draw as many politically competitive districts as possible. In the end, state appeals courts upheld the legislative map, even though it had fewer competitive districts than the previous one from the early 1990s drawn by the Arizona Legislature.
The state's constitution requires the commission to consider five different factors when drawing districts. They include population equality, minority representation, compactness, respect for community boundaries and federal law. Making districts winnable by either party is listed as a sixth factor, but only when creating competitive districts "would create no significant detriment to the other goals."
The Arizona Independent Redistricting Commission argued that its map included three or four competitive districts out of 30, which it said was as many as practical, given the other goals. Because of the federal Voting Rights Act, for example, the commission created nine majority Hispanic legislative districts and one with a majority of Native Americans.
But Phoenix lawyer Paul Eckstein, who represented the plaintiffs who challenged the legislative map, says evidence at the trial showed the commission could have created as many as eight competitive districts while still meeting the other goals. The courts sided against him, meaning that it will be hard to challenge future maps for not being competitive, Eckstein says. "What the commission can do in the next 10-year-cycle is whatever it wants."
In Iowa, by contrast, none of the maps drawn during three decades of using the nonpartisan process has been challenged in court. But the model may not work in other states as well as it does in Iowa.
That's because redistricting in Iowa is simply less complicated than in most states. Iowa is so overwhelmingly white that it does not have to craft districts that favor minority voters, as required under the federal Voting Rights Act. Plus, Democrats and Republicans are spread pretty evenly throughout the state.
"One option is to lash the wheel of the ship and then hope you sail in a good direction. That's the Iowa direction," McDonald says. "The benefit for Iowa is that they have clear waters all around them, so it's not going to run into anything."