Monday, June 25, 2012

The elusiveness of reform, part 1.

Jay Heck made a few reform proposals in an op-ed in today's Crossroads. Two of them interest me. I am far less enamored with then than Jay is. Let's start with the suggestion that Wisconsin establish a "non-partisan" redistricting commission.

First, let me say that I am generally skeptical of "non-partisan" and selflessly "civic-minded" commissions. If you ask a group of people to do something that is inherently partisan and political, the group will tend to become partisan and political. Those who are intensely interested in the process will attempt to capture the "non-partisan" agency and they will often succeed. When they do, the only thing that has been accomplished is that the politics will have been driven underground and out of view.

Me? I'd rather have it out in the open. 

Jay cites Iowa. I'll cite California where a "non-partisan" commission has been met with lawsuits and repeal referenda. 

The problem is exacerbated by the fact that, when it comes to redistricting, there are not a set of agreed upon and non-contradictory criteria for drawing district lines that are, as Jay puts, "according to community interests. 

For example, Jay wants to avoid oddly shaped districts in favor of those that are "contiguous and compact." But there are, in any redistricting year, countless ways to do draw such districts. And, contrary to Jay's implication, the GOP plan was not full of oddly shaped districts. There will always, in the give and take of drawing a plan, be a few oddities. But I show my Election Law students numerous examples of Rorschach blot districts - all of which have been upheld. In comparison, the GOP plan looked like a checkerboard. 

Even contiguous and compact districts can run afoul of other redistricting goals. They may, for example, be less competitive and even weighted toward the GOP. Nationally and in Wisconsin, Democratic voters are far more likely to be highly concentrated. Many experts believe that a”checkerboard" district will tend to "pack" Democratic voters and favor Republicans. 

What about promoting competitive districts? Well, that may require dividing natural communities of interest, i.e., communities of voters facing similar issues who will often vote the same way. For example, critics of the GOP plan objected to its division of Racine and Kenosha counties. But the result - combining rural and suburban voters into one district while placing urban voters in another would seem more consistent with preserving communities of interest - which are not necessarily - or even likely - to follow municipal boundaries. 

It is because there is no way to define what is a "non-partisan" and "public spirited plans" that courts are reluctant to entertain claims of a partisan gerrymander. That is why I told the legislature last July that the plan would not be susceptible to challenge as a partisan gerrymander. 

It is unclear that a supposedly "non-partisan" commission would do any better or that we would even have a standard by which to assess that question. Politics would still be there. We'd just have a harder time seeing it.

 Cross posted at Purple Wisconsin.

2 comments:

George Mitchell said...

Ah, the siren song of "non-partisanship." The same issues arise when the smarter among us want to end the election of Supreme Court judges. That's especially ironic in Wisconsin, where many of the problems with our Supreme Court can be traced to an justice who initially was appointed.

Anonymous said...

George says, "That's especially ironic in Wisconsin, where many of the problems with our Supreme Court can be traced to an justice who initially was appointed."

So says the hyper-partisan. The election of Supreme Court judges in Wisconsin has been a complete farce.
Both sides are acting like spoiled brats.

www.wpri.org/WIInterest/Vol19No2/Nichols19.2.html

Perhaps it is time to reexamine whether judges should run for public office.

www.brennancenter.org/content/resource/the_new_politics_of_judicial_elections/


Rick says, "If you ask a group of people to do something that is inherently partisan and political, the group will tend to become partisan and political..."

Possible, but NOT probable. The situation depends upon HOW that group is put together. The model is the Congressional Budget Office.

"Those who are intensely interested in the process will attempt to capture the "non-partisan" agency and they will often succeed."

HOW? You make a blanket statement, then fail to back it up. Mere opinion. I suggest you provide specific examples. If the process of selecting those who will serve in the group meets certain criteria, i.e. a governor must appoint three (R)'s and three (D)'s and it must be agreed upon by the Legislature, then it would appear your point is moot. The PROCESS matters.


"It is unclear that a supposedly "non-partisan" commission would do any better or that we would even have a standard by which to assess that question. Politics would still be there. We'd just have a harder time seeing it."

The PROCESS matters, i.e. HOW a decision is arrived. A non-partisan group STILL has to provide reports to the public. A non-partisan group STILL will be subject to public scrutiny. Care to elaborate "how we will have a harder time seeing it"?

Regardless, the professor seems to have selective memory regarding why there should be a revisiting how districts are redrawn. Did Democrats in Wisconsin ever made nondisclosure agreements during the redistricting process? Did Democrats in Wisconsin ever used attorney-client privilege as a tool to blur the lines between political advice and legal advice during the redistricting process?