Friday, February 26, 2010

Some Thoughts on Redistricting

As we head into the fall election cycle, one of the most important consequences of state legislative and gubernatorial races will be the impact on redistricting in 2011.

Current doctrine requires that legislative districts be equal in size and racial gerrymanders are subject to constitutional and statutory challenge. But partisan gerrymanders are almost impossible to challenge. In a case called Vieth v. Jubelirer, a four justice plurality held that allegations of a partisan gerrymander are nonjusticiable. Justice Kennedy was unwilling to say so, but conceded that he could not yet conceive of a judicially manageable standard. (Perhaps, one day, one will emerge.) While I think that Article IV, sec. 4 of the state constitution may provide a bit more room for a challenge to partisan gerrymanders of the state legislature, I wouldn’t bet the 401(k) on it.

As James Troupis, a Madison lawyer and national expert on redistricting, recently told my Election Law class, partisans can work gerrymandering wonder by “cracking,” “stacking” and “packing” voters. I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan.
If one party controls both houses of the legislature and the governor’s chair, it is possible to materially affect the outcome of congressional and legislative races for the next ten years with little prospect for legal challenge.

If there is split control, it is highly unlikely that the legislature and governor will produce a map. Judges wind up drawing the lines.

Some states have tried to avoid the political nature of redistricting by moving to nonpartisan commissions. One interesting recent example is California.

In 2008, voters narrowly passed Proposition 11 which creates a fourteen person redistricting commission. Anyone can apply. 31,ooo people did. A panel of three state auditors (with some challenges by legislative leaders) must now winnow that number to 60 based on considerations of qualifications, impartiality and diversity. Of that 60, eight people are chosen at random and they select the other six.

The commission is supposed to use traditional nonpartisan districting criteria. There is, of course, no way that the plan would have been enacted by the California legislature which is strongly Democratic (and thus confident that their party would control the process) and, by definition, made up of incumbents who notoriously draw lines to protect themselves. In recent election cycles, incumbent state legislators have had about a 99% reelection rate in California.

UCLA law professor and election law expert Daniel Lowenstein is heading an effort to repeal Proposition 11 with the backing of certain Democratic members of Congress. Professor Lowenstein calls it a “Rube Goldberg” system in which the machinations of interest groups will be hidden and immunized from public accountability. It does seem a rather odd construct.

Of course, there are partisan undertones to Proposition 11 as is almost always the case in redistricting. It’s not surprising that Republicans would support it. It gives them an equal seat at the table that they would be very unlikely to gain as a result of state legislative races. In addition, some experts argue that Republicans tend to benefit from “neutral” redistricting principles, i.e., compactness, contiguity, respect for political boundaries, etc. This is not because Republicans are less interested in gerrymanders, but because – or so the theory goes - certain Democratic voters – in particular, racial minorities – tend to be geographically concentrated. In addition, because turnout in such populations is often lower, creating majority-minority districts to, say, protect a redistrict from challenge under the Voting Rights Act is generally thought to require creation of a supermajority, further packing Democratic voters.

Interesting times are ahead.

Cross posted at Marquette University Law School Faculty Blog


Anonymous said...

What's the example of the 7 Dem district map? I'd like to see it.

Anonymous said...

"I shared with the class this example of a gerrymander that would create seven majority Democratic districts in Wisconsin and make reelection a very difficult prospect for Congressman Paul Ryan."

Nice try, Herr Professor. Obviously you haven't been paying attention to how the Congressional redistricting plans are created in Wisconsin. The last three times it was done, the members of congress from Wisconsin prepare their own consensus plan which the legislature has then adopted without change. In other words, the incumbents sit down and agree upon a plan. This has worked no matter which party controlled the East Wing or the two houses of the legislature.

That's the way it will be done again. Next time, do a little research before bloviating!

Rick Esenberg said...

Anon 11:00

I can see why you don't want to use your name. Such hostility.

The point of showing my class that gerrymander - you can look it up at a Democratic website because I don't have the software to do it - was to illustrate how one can comply with justiciable restrictions on redistricting and still form odd shaped districts conferring partisan advantage. I showed them other "creative" districts as well. Believe me, they heard plenty about how the GOP might seek advantage, including by an emphasis on maximizing "effective" majority-minority districts.

I did not claim - in my class or in my post - that I think such a redistricting is likely. In fact, I recall that - at least - one of my guests who is now approaching his fourth redistricting cycle talked about the way in which the Congressional redistricting had been agreed upon and that the litigation addressed state legislative disticts.

Whether that will be the case in 2011, will depend on some things that we don't know yet, i.e., what the new census would show about Wisconsin's population, whether there is single party control of the legislature and state house (something that has not been the case in the past) and who the Congressional incumbents are and what their relative strengths ans aspirations happen to be. I would take into account the fact that Congressional seats have not been hostly contested and that redistricting has been controlled by the incumbent Congressmen. I would do that because, for any particular legislator, his or her reelection is more important than partisan advantage in the body as a whole.

What I would not do is presume that this is the way congressional districts "are" drawn in Wisconsin because there is no law of nature that requires this to be so. In fact, if one party controls the Governor's seat and both houses of the legislature and population changes yield an opportunity to pick up a seat, you'd have to ignore the lessons of years of American political history to assume that the party in a position to do so would not press their advantage.

Anonymous said...

What part of this don't you understand? The Congressmen (and Congresswomen, this time around) will draw up their own plan and that's what the legislature will adopt! Even though the Democrats have more members in the delegation, they will still devise a plan which "protects" each incumbent in both parties.

Bank on it.

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