The Barrett Plan: What Isn't There

Tom Barrett’s proposal for “nonpartisan” redistricting may reduce the degree of “incumbent protection” that takes place in the redrawing of legislative districts, but I think it is more interesting for what it does not do.

There is a movement in the country to have redistricting by commission according to what are generally though to be neutral redistricting principles, i.e., the creation of compact and contiguous districts that, to the extent possible, respect municipal and county boundaries and (perhaps) geographical barriers that seperate one community from another. See. e.g., California’s Voter First Act. These principles restrict discretion in redistricting and, or so the theory goes, minimize the opportunity for political maneuvering. This doesn’t eliminate contention but the establishment of physical requirements reduces the opportunity for gerrymandering to protect incumbents or to maximize the opportunities for the party in power.

That’s not what Barrett wants to do and that’s not surprising. As a general matter, Democratic voters are more concentrated that Republican voters. Contiguous and compact districts will tend to create a smaller number of heavily Democratic districts.
So Barret wants to gerrymander to “maximize” competitive districts. Depending on your theory of representation, this may or may not be a good thing. If you see a legislator as representing people who are in what is, in some sense, an organic community, then membership in that community would seem to be a fairly important principle of districting. If you view legislators as simply a vote in a national or state wide community, then trying to reflect the political balance of that community becomes more important – although that is not the objective of the Barrett plan either.

However, you do that, once you depart from physical criteria and permit gerrymandering for “competition,” the political game is back with a vengeance. There are ikely to be many ways in which competition can be claimed to be “maximized” and these ways are probably unlikely to be politically neutral.

But, more than that, Barrett wants to make sure that districts are drawn with an eye toward creating majority minority districts and this normally results in Democrat majority districts. It would, essentially, operate as an exception to the mandate to create competitive districts by permitting the packing of Democratic voters. This may or may not be required by the Voting Act and may or not operate to the detriment to the Republicans (indeed, sometimes Republicans support it because it draws Democratic voters out of surrounding districts).

My point is that it, along with requirement of “competition,” contributes to, rather than constrains, legislative discretion in the drawing of districts and that opens the door for the political battle that has traditionally been redistricting.

Another curious feature of the Barrett plan is placing the final decision – should the politicians not agree – with the Government Accountability Board. Under current law, a legislative impasse is resolved by the courts. This is not a theoretical matter. State legislative districts in Wisconsin have not been redrawn without going to court since the 1930s. Why the GAB – which is assembled for a different purpose and consists of members appointed by the political branches – is prefereable is not obvious. Why it can be expected to have the resources or expertise to

If past is prologue, the GAB will be redistricting and, under existing doctrine, will be largely immune from judicial review.

Cross posted at Marquette University Law School Faculty Blog