Redistricting and the West

Transcription

1 Chapter 2 Redistricting and the West The Legal Context Justin Levitt All of our state legislators, many of our local legislators, and most of our federal legislators are elected from districts, which divide states and their voters into geographical territories. 1 These districts are occasionally co-located with the governmental jurisdiction: local school boards, for example, are often elected from a district with the same boundaries as the school district they govern. Most of the time, however, district lines subdivide territory and that requires a decision about where the lines are to be drawn. Each jurisdiction generally makes its own choices about how to draw these district lines. In some respects, redistricting in the western states has much in common with redistricting throughout the rest of the country; in other respects, the western states have forged their own path. And among the western states, there are also important similarities and differences. But beneath all of the variations lies the same origin story, with the same impetus for redistricting no matter what the jurisdiction. In the eighteenth century, most state and many local legislative districts were defined by the borders of towns or counties, or groups of towns and counties. 2 Representation was apportioned by assigning different numbers of representatives to each of these districts, which remained largely fixed. As the country s population grew, states adjusted the number of representatives that were apportioned to each district, and districts were occasionally reshaped by re-aggregating or subdividing constituent political bounds. Still, the basic unit of representation remained the county or town until well into the twentieth century. The population did not grow equally across the country, and much apportionment did not keep pace. Sometimes, the failure to account for population shifts was by design: several state Senate systems were modeled after 15 02_Moncrief11_C02.indd 15

2 16 Chapter 2 their federal counterpart, with political units represented as such, regardless of local population. Sometimes, the failure to account for population shifts was by neglect: in the 60 years from 1901 through 1961, Tennessee failed to reapportion the representatives allotted to each county or group of counties, despite the contrary commands of its own state constitution. 3 In either case, the result was that some legislative districts grew much larger than others. By the 1960s, for example, Los Angeles County, the largest district in California, had 422 times as many people as the smallest district. 4 And because each district in California s state senate elected one senator, each person in the smallest district enjoyed 422 times the representation of each Los Angeles resident. In a series of cases starting in 1962, beginning with Baker v. Carr and known (or mis-known) as the one person, one vote cases, the Supreme Court determined that this sort of population disparity violated the U.S. Constitution. It established, instead, a constitutional command mandating roughly equal population for each legislative district. 5 These rulings had two primary effects. First, they established an equipopulation principle as the overriding federal constitutional command, superseding other state requirements when those requirements were inconsistent with equal population standards. This, in turn, decoupled districts from municipal and county boundaries, to the extent that apportionment of representatives to towns and counties resulted in substantial population disparities. As discussed further below, most states retain some sort of modest preference for districts conforming to political boundaries but the equipopulation cases meant that states could not alone rely on apportioning representatives to districts fixed on county or municipal lines, or groups of those counties or municipalities. Second, because the Baker line of cases tied district boundaries to population, they required periodic recalculation of district boundaries, to adjust to new population information. Therefore, at least once per decade, after the census is conducted and new population information is available, states and local governments must reassess district boundaries to ensure that they abide by federal equal population requirements. 6 With Baker v. Carr and its progeny, a national constitutional decennial redistricting mandate redistricting as we know it today was born. For the most part, though the federal Constitution requires redistricting, every state essentially sets its own rules for how this redistricting is conducted. Most state legislative districts and to a lesser degree, congressional districts are drawn pursuant to provisions in each state s constitution. Some states have also passed statutes purporting to govern the redistricting process; however, such statutes like virtually all state laws may be superseded by subsequent state legislatures through the standard legislative process. 7 02_Moncrief11_C02.indd 16

3 Redistricting and the West 17 Who Draws the Lines States empower different bodies to draw district lines, and it is in the choice of redistricting body that the western states are most distinct. It is first necessary, however, to set forth the basis for comparison. In most of the country, the state legislature has primary control of the redistricting process, both for its own districts and for those of Congress. Thirty-seven state legislatures are empowered to draw their own state legislative district lines. 8 In each of these states, and five others, the state legislature also has primary control over district lines for Congress. 9 Usually, a majority vote is sufficient to enact a districting map; Connecticut and Maine both require supermajorities of twothirds in each house. When the legislature has control, the governor also usually plays a role. In most of the states above, the redistricting plan is enacted like all other statutes and is subject to gubernatorial veto. In only five of these states Connecticut, Florida, Maryland, Mississippi, and North Carolina are the district lines set by joint resolution, without the potential for a veto. Five of the states above Iowa, Maine, New York, Rhode Island, and Vermont appoint advisory commissions involving at least some nonlegislators, to draft maps or otherwise help the legislature determine where the state legislative district lines should be drawn. 10 Ohio appoints such an advisory commission to suggest congressional lines. The legislature is not bound by the recommendations of these advisory commissions, but because the legislative leadership usually has a role in appointing the membership of each commission, its advice tends to influence the legislature s final decision substantially. In Virginia, the governor issued an executive order in 2011 creating a similar advisory commission for his own benefit, but at publication of this volume, the extent of the commission s impact on the legislature s proposed plans is unclear. Iowa s advisory commission is structured differently from the others. 11 In Iowa, the legislature s bureau of nonpartisan civil servants, normally responsible for legal drafting, budget analysis, and technical advice, is charged with preparing drafts of redistricting plans. This advisory bureau is itself advised by a five-person committee of non-legislators, with four members chosen by the legislative leadership of both minority and majority parties and the fifth member chosen by the other four. 12 The nonpartisan bureau prepares a draft redistricting map, which the legislature may accept or reject as is but may not modify. If the map is rejected, the nonpartisan bureau will try again, with another opportunity for the legislature to vote up or down without change. If the legislature rejects two sets of plans, and the nonpartisan bureau returns with a third map, the legislature is then, on the third try, able to accept, reject, 02_Moncrief11_C02.indd 17

4 18 Chapter 2 or modify the plan it has given. Since the procedure was put in place in 1980, the Iowa legislature has not used its authority to draw its own maps from scratch on the third attempt. Advisory commissions may influence the redistricting maps before they are sent to the legislative body as a whole; in seven of the states above including Oregon, as well as Connecticut, Illinois, Maryland, Mississippi, Oklahoma, and Texas there are special backup procedures to draw state district lines after the legislature has had an opportunity to do so, if the legislature cannot pass a plan successfully. 13 Usually, a specific deadline in the state constitution triggers the backup entity s authority. In Maryland, redistricting falls to the governor if the legislature fails to act. 14 In Oregon, the secretary of state is the backup actor. Each of the other five states empowers a backup commission with multiple members. In Connecticut and Illinois, the backup commission is composed of members selected by the legislative leadership. In Mississippi and Texas, the backup commission includes specific statewide elected officials, like the state treasurer or state attorney general. 15 In Oklahoma, a 2010 citizen s initiative blended these models, establishing a backup commission composed of the lieutenant governor and several members selected by the majority party s legislative leadership and the governor. 16 In all of the states above, the legislature has primary authority to draw district lines. In other states, redistricting authority is placed in the hands of a non-legislative body. For example, seven states Colorado and Hawaii, as well as Arkansas, Missouri, New Jersey, Ohio, and Pennsylvania draw state legislative districts with politician commissions, where elected officials may serve as members. 17 Each is designed differently. In Arkansas and Ohio, specific elected officials have designated seats on the commission. 18 In the other states, the legislative or party leadership nominates commissioners, usually with balanced numbers from each party and sometimes with a role for the governor or chief justice of the state supreme court to select nominees or appoint additional members of the commission. The remaining states, all in the West, have chosen a different path. Alaska, Arizona, California, Idaho, Montana, and Washington all draw their state legislative districts using an independent commission, with regulations limiting direct participation by elected officials. 19 No member of these commissions may be a legislator or public official; each state also prohibits commissioners from running for office in the districts they draw, at least for a few years after the commission completes its work. Some of the states further limit commission members link to the legislature: Arizona and California, for example, also bar legislative staff from serving on the commission; California, Idaho, and Washington bar lobbyists from serving on the commission as well. The process for choosing the commissioners is slightly different in each state: 02_Moncrief11_C02.indd 18

5 Redistricting and the West 19 Alaska: The governor chooses two commissioners, the state senate and house majority leaders each choose one, and the chief justice of the state supreme court chooses one. Arizona: The four legislative majority and minority leaders each choose one commissioner from a pool of 25 nominees chosen by the state s panel for nominating appellate judges. Those four commissioners then select a fifth tiebreaker, who is not registered in the same party as any other commissioner. California: State auditors choose 20 registered Democrats, 20 registered Republicans, and 20 voters registered as neither, and the four legislative leaders each remove 2 people from each pool. Eight commissioners (three Democrats, three Republicans, two neither) are chosen randomly from the remaining nominees; those 8 choose 6 colleagues (2 Democrats, 2 Republicans, 2 neither). Any redistricting plan needs the approval of 9 of the 14 commissioners in order to pass: 3 Democrats, 3 Republicans, and 3 neither. Idaho: The four legislative leaders each choose one commissioner, and the state party chairs each choose one more, for a total of six. Montana: The four legislative leaders each choose one commissioner, with geographic balance. Those four commissioners then choose a fifth tiebreaker. Washington: The four legislative leaders each choose one commissioner; those four then choose a fifth chairperson, who does not vote on the final map. Once the commission has drawn a map, the legislature may tweak the lines; however, it needs a two-thirds vote to do so, and any change may affect no more than two percent of the population in any given district. The final critical actor in the redistricting process is the judiciary. Most state constitutions have established a deadline by which the regular process of redistricting is to be completed. If the primary redistricting body has not produced a viable map before that deadline, state or federal courts may step in to make sure that the district lines are set before the next election. Moreover, if the maps produced by primary redistricting bodies are legally flawed, some courts will draw maps of their own, particularly if elections are imminent, and there is insufficient time to return the pen to the redistricting body otherwise empowered to draw the lines. In the 2000 redistricting cycle, courts were asked to intervene for either state legislative districts or congressional districts, or both in 37 states, declared existing or proposed districts unlawful in 20 states, and actually drew the lines (or some of the lines) themselves in some sort of 15 states. In the 2010 cycle, by April 2011, there were already at least 14 suits filed, 02_Moncrief11_C02.indd 19

6 20 Chapter 2 challenging maps or the mapping process, or the fact that the mapping process had failed or would likely fail to produce maps. Where to Draw the Lines: Federal Law Beyond the variation in bodies empowered to conduct redistricting, each state also regulates the location of district lines differently. And each of these state regulations must yield to two critical federal rules governing the redistricting process. Equal Population The first and primary federal rule is the constitutional equal population requirement. The Baker line of cases established that population should be approximately equal for each state and federal district within a state and each local district within its jurisdiction. The standard for congressional districts is set by the Supreme Court s interpretation of Article I, 2, and the second section of the Fourteenth Amendment, and is set quite high, with equal population required as nearly as is practicable. 20 In practice, this means that states must make a good-faith effort to achieve absolute mathematical equality for each district within the state, with the district size pegged to the mathematical average, or ideal, population. Any differences must be specifically justified by a consistent and, in the eyes of the courts, permissible state policy that requires the deviation. 21 Even consistent state policies that cause a deviation approaching one percent among congressional districts will likely be deemed unconstitutional. 22 The standard for state and local legislative districts follows the Fourteenth Amendment s Equal Protection clause, and permits a bit more flexibility. The population in these districts must be substantially equal. 23 The courts have not defined the phrase precisely, but over a series of cases, it has become accepted that the difference in population between the largest and smallest state legislative districts, the total deviation, becomes constitutionally suspect when it exceeds 10 percent of the ideal population. 24 This is not an absolutely hard line: in some cases, a state may have a compelling reason for drawing districts with a population disparity greater than 10 percent, 25 and in some cases, an asserted state rationale may be insufficient to justify population disparities less than 10 percent. 26 Some states set stricter limits on population disparity than the federal standard. Colorado, for example, allows at most five percent total deviation between the largest and smallest districts; 27 Montana s commission has set guidelines for itself requiring at most six percent total deviation. 28 Iowa not 02_Moncrief11_C02.indd 20

7 Redistricting and the West 21 only also limits its total population deviation to five percent but also sets the average deviation at no more than one percent from the ideal population. 29 Race and Ethnicity The other major federal regulation of the redistricting process concerns race and ethnicity. Many redistricting techniques have been abused in order to dilute racial and ethnic minorities electoral strength. One such ploy is called cracking : splintering minority populations into small pieces of multiple districts, so that their voting power is diluted. Another tactic is called packing : consolidating as many minority voters as possible into a few concentrated districts, leaching the population s voting power from the surrounding areas. Others abound. The federal Voting Rights Act of 1965 was designed to combat discrimination used to deny minorities the right to an effective vote, including redistricting techniques like those above. As federal law, the Voting Rights Act overrides inconsistent state laws or practices, just as the constitutional equal protection mandate supersedes other state requirements. Two sections of the ct are particularly important to redistricting: Section 2 and Section 5. Section 2 of the Voting Rights Act blocks district lines that deny minority voters an equal opportunity to participate in the political process and to elect representatives of their choice. It applies whether the denial is intentional or an unintended end result. Courts applying the Act in the redistricting context essentially test whether the way that a district is drawn takes decisive political power away from a cohesive minority bloc that has otherwise suffered discrimination in the region. The test for Section 2 s coverage was first articulated in a case called Thornburg v. Gingles, 30 and the basic components of the test are often referred to as Gingles threshold conditions requirements for a court finding that a jurisdiction ha violated Section 2. The first Gingles condition asks whether it is possible to draw a district such that a majority of voters belong to a geographically compact racial or language minority community. Compactness, which is discussed further below, has never been precisely defined in this context; it generally refers to populations that are not particularly far-flung from each other 31 and where the boundaries are moderately regular, without extensive tendrils and the like. Overall, the first Gingles condition measures approximately whether a sufficiently sizable minority population lives sufficiently close together to be able to control a reasonable single-member district. The second Gingles condition tests whether the minority population in question votes in cohesive fashion: whether they usually vote for the same 02_Moncrief11_C02.indd 21

8 22 Chapter 2 type of candidate. This does not refer to a blunt political preference for Democrats or Republicans but a more subtle assessment of whether the minority would usually all vote together for the same candidate, given a candidate appealing to their interests. The third Gingles condition tests the potential competition: whether the majority population in the area votes in cohesive fashion for a different set of candidates than those preferred by the minority community, such that the majority population would regularly defeat the preferred candidate of the minority if the minority community s voting power were not specifically protected. Together, these conditions are known generally as racial polarization. If demographic and political factors show the presence of all three Gingles threshold conditions, courts then look to the totality of the circumstances to determine whether the minority vote has been diluted. There are many factors involved in the totality of the circumstances, often involving the extent of historical or contextual discrimination. One factor that has been singled out as particularly important is rough proportionality: whether minorities have the opportunity to elect representatives of their choice in a number of districts roughly proportional to the percentage of minority voters within the population as a whole. 32 Section 2 does not, it is clear, guarantee proportionality. But if a minority group with 20 percent of a state s citizen voting-age population already has the opportunity to elect representatives in 20 percent of the state s districts, courts will be more hesitant to find a violation of Section 2 even if the three Gingles conditions are met, and if the minority group does not have such an opportunity, courts will often be more prone to find a violation. Section 5 of the Voting Rights Act, the other provision most applicable to redistricting, works a bit differently. First, unlike Section 2, it is temporary: it was last renewed in 2006, and is scheduled to come up for renewal again in the future. 33 Second, while Section 2 applies all over the country, Section 5 applies only in jurisdictions in which a test or device was used to screen would-be voters and in which fewer than half of the eligible voters either registered or voted in 1964, 1968, or 1972; much of the limited political participation in these areas was tied to disenfranchisement of minority voters. Nine states, and parts of seven others, are covered jurisdictions under Section 5 including Alaska, Arizona, and parts of California. 34 Coverage is not eternal: in a procedure known as bailout, after 10 years of steps to improve opportunities for minority voting, a covered jurisdiction can petition the federal trial court in Washington, D.C., to be released from Section In a jurisdiction covered under Section 5, the government may not implement any change to a voting procedure including a modification of the district lines without first submitting the change to the Department of Justice or the federal court in Washington, D.C., in a procedure known as 02_Moncrief11_C02.indd 22

9 Redistricting and the West 23 preclearance. New district lines will usually be precleared if the plan is not intended to discriminate against racial or ethnic minorities and if it does not cause retrogression in minority political opportunity, independent of any subjective motivation. A new plan will cause retrogression if it presents a diminished opportunity for minorities to elect their candidates of choice, as compared to the existing district map. 36 In order to assess retrogression, it is necessary to assess minority political opportunity given the most recent demographic information available, under both the existing district map (the baseline ) and the proposed revision. Thus, Section 2 of the Voting Rights Act protects many populations of minority voters large enough to form a district s majority, and Section 5 prevents governments from backsliding to take away opportunities that minority voters had had before. What about groups of minority voters that have newly emerged within a state, but aren t quite big enough to be protected by the Voting Rights Act? The courts have discussed in great detail the extent to which redistricting bodies may take race into account under the Equal Protection Clause of the federal Constitution, as they have analyzed the role of race-conscious decision making in other areas. Most observers agree that this area of the law is still in some degree of flux, but the firm consensus is that those responsible for redistricting may include race or ethnicity somewhat in the factors considered when determining where to draw district lines. Without a reason sufficiently compelling to withstand strict scrutiny by the courts a difficult standard that few rationales, in practice, appear to meet neither race nor ethnicity may be the predominant reason for a district s shape. 37 (Courts have repeatedly implied that compliance with the Voting Rights Act is one such compelling reason. 38 ) But considering race and ethnicity as part of the overall mix, along with other race-neutral redistricting factors listed in more detail below, is legally proper. Where to Draw the Lines: State Law Even after accounting for the requirements of the Voting Rights Act, there remain countless ways to divide a jurisdiction into districts of roughly equal population. State constitutions and some state statutes provide a few additional constraints governing the discretion of redistricting bodies. Occasionally, these constraints are presented in priority order and with the express instruction that lower-priority criteria be satisfied only where doing so will not detract from the satisfaction of higher-priority restrictions. More often, however, the redistricting entity has the discretion to resolve conflicts 02_Moncrief11_C02.indd 23

10 24 Chapter 2 between various criteria, where they arise, as it sees fit and perhaps in different priority order in different portions of the state. Contiguity Contiguity is the most common constraint imposed by state law: by state constitution, statute, or guideline, 49 states require the state legislative districts of at least one legislative house to be contiguous. 39 Only 23 states have similar requirements for their congressional districts, though as a practical matter most congressional districts will be contiguous; the relative dearth of legal limits is a manifestation of the fact that few states have provided any express legal constraints on congressional districting at all. 40 A contiguous district is one in which it is possible to travel from any point in the district to any other point in the district without crossing the district boundary: a district, that is, in which the portions of the district are physically adjacent. Most states define contiguity to require portions of a district to be connected by more than a single point, but there is no further general requirement that a district be connected by territory of a certain area. Water creates a special circumstance for contiguity. In most cases, districts divided by a waterway are contiguous if a common means of transport connects the two sides of the district: a bridge, for example, or a ferry route. Island districts are generally contiguous as long as the island is part of the same district as the mainland area most tied to the island by these sorts of transport routes or the mainland area otherwise geographically closest to the island. In Hawaii, where there is no mainland to consider, the state constitution prohibits the drawing of canoe districts districts that are spread across more than one major island group, where it is necessary to use a canoe to travel between different parts of the district. Political Boundaries The next most common state law governing redistricting is the instruction to follow political boundaries, such as county, city, town, or ward lines, when drawing districts. Several states declaring an intent to preserve political boundaries do so in a tiered structure of priorities: for example, preserve counties intact when possible; if it is necessary to split a county, preserve townships intact; if it is necessary to split a township, preserve municipalities, then city wards, then individual voting precincts. Most have no such priority order. Forty-one states have purported in constitution, statute, or guideline to require some accounting for political boundaries in state legislative districts, 02_Moncrief11_C02.indd 24

11 Redistricting and the West 25 including 10 of the 13 western states. Eighteen states impose similar constraints on congressional districts, including six of the 13 western states (three western states have only one congressional seat and no district lines to draw). 41 In most cases, this is a restriction lingering from the 18th and 19th centuries, when counties or towns were the primary constituent units of most state districts; like all other state redistricting law, it must bend to federal equal protection or Voting Rights Act constraints when the differing demands are incompatible. Most often, state law requiring redistricting entities to cleave to political boundaries leaves a fair amount of flexibility in the mandate. Some states expressly acknowledge a superseding equal-population principle, usually without clarifying whether the intent is to implement the federal requirement (with the latitude of the federal Constitution s substantially equal approach), or an independent state requirement that demands less population deviation than the federal Constitution. Other states simply instruct the redistricting body to maintain political boundaries to the extent practicable. Either scenario may allow fairly significant deviation from larger political boundaries particularly county lines in practice. Most state law concerning the preservation of political boundaries presents another ambiguity as well. If districts in such states must deviate from county or town lines, it is not usually clear whether the preference should be to minimize the number of political units that are split or to minimize the number of times that political units are split. The former philosophy views the deviation from absolute territorial integrity as the principal evil to be avoided; once a county, for example, is split by district lines, it is better under this view to split that county among many different districts, if doing so allows the redistricting entity to preserve most other counties whole. The alternative views fragmentation of a political unit as the principal evil and believes that three counties, each split once, is preferable to one county split into six pieces. Few court decisions have addressed this issue in any detail, leaving no consistent default rule to address the usual constitutional ambiguity. Compactness State law requires its districts to be compact almost as frequently as it demands that they show some degree of fealty to political boundaries. Thirty-six states require their legislative districts to be reasonably compact, including 11 of the 13 western states. Seventeen states, including seven of the western states, require congressional districts to be compact as well. 42 Notoriously, few state laws define precisely what the term compactness means. Most courts and commentators understand compactness to refer to 02_Moncrief11_C02.indd 25

12 26 Chapter 2 a district s geometric shape, often abstracted from underlying features of a map. California s standard instead reflects districts that do not bypass nearby areas of population for those more distant, which is related but not tied to pure geometry. 43 In a slightly different context, the Supreme Court seems to have construed the term to indicate that residents have something in common: some sort of cultural cohesion, or lack of severe cultural dispersion, among the citizens in a district. 44 In either case, in practice, compactness generally tends to be in the eye of the beholder: those called upon to evaluate the compactness of districts say they know it when they see it. Still, it is possible to distill some general principles, at least for common conceptions of compactness that focus on district shape. A district in which constituents generally live near each other is usually considered more compact than one in which they do not. A district with a relatively geometrically regular convex shape is usually considered more compact than one with multiple extended tendrils. Most scholars consider a perfect circle to be the most compact abstract shape, by most measures. But more than 30 measures of compactness have been proposed, and for every district that is not a perfect circle, the choice of measure can profoundly impact the assessment of compactness. 45 These proposed measures of compactness can generally be sorted into three categories. 46 The first set elevates the importance of contorted boundaries: a district with smoother boundaries will be more compact, and one with more squiggly boundaries will be less compact. Some of these measures emphasize components based on the district s perimeter. For example, one such measure compares the district s area to the area of a circle with the same perimeter as the district (known as the Polsby-Popper test ). 47 Other boundary measures emphasize the convexity of the district shape, by examining district angles or determining the extent to which lines drawn between portions of the district lie within the district. 48 Another set of measures focuses on the district s dispersion, or the degree to which it spreads from a central core: a district with few pieces sticking out from the center will be more compact, a district with pieces sticking out farther from the district s center will be less compact. There are more than a few versions of these measures. One set of formulas compares the district s height to its width, assessed in various ways. Another depends on inscribed or circumscribing circles: for example, the district s area may be compared to the area of the smallest circle that can be drawn around it (known as the Reock test ). 49 Still another set measures the district s relationship to its geometric center of gravity : the Boyce-Clark test, for example, measures the average distance from the district s center to points on the perimeter. 50 The third set of measures elevates the importance of citizen housing patterns in relation to the district s boundaries. Usually, such measures are 02_Moncrief11_C02.indd 26

13 Redistricting and the West 27 variants of one of the measures above but recalibrated to take population into account, generally granting more flexibility to permit district tendrils in more sparsely populated areas. For example, one measure compares the population within the district to the population within a circumscribing circle or to the population of a circle with the same center point and perimeter of the district. Another measure is an analog of the moment of inertia, measuring the average distance between each individual living in the district. 51 Each of the measures above can be calculated with respect to an individual district; indeed, in states with any sort of compactness requirement, that requirement usually qualitative, not quantitative is usually phrased in terms of each individual district. In some states, however, the law presents a further ambiguity. For example, Illinois law provides that legislative districts plural shall be compact. 52 The text does not explain whether each district is to be evaluated individually, or whether the district plan is to be evaluated as a whole. And if the latter, it is not clear whether the appropriate reference point is the mean district, the median district, an aggregate assessment, or some other reference point entirely say, the least compact district of the previously adopted map. Indeed, such ambiguity is largely the norm in redistricting. 53 Idaho, for example, states only that its redistricting commission should avoid drawing districts that are oddly shaped, 54 which is a more specific instruction than most states provide. Only six states again, mostly in the West appear to specify a particular measure of compactness. Arizona and Colorado focus on contorted boundaries: Arizona s commission chose in the 2000 cycle to use the Polsby-Popper test, 55 and Colorado measures total perimeter. 56 California, Michigan, and Montana focus on dispersion: California appears to apply a form of the Boyce-Clark test modified to account for population, as in measuring a district s moment of inertia; 57 Michigan, which requires compactness only when there are two or more districts within a city or township, bound itself to consider a form of the Reock measure that accounts for state boundaries and the intercession of the Great Lakes; 58 and Montana measures districts based on their length and width. 59 Iowa embraces both forms of measure, prescribing a test of length-width dispersion and a test of total perimeter length, without establishing a preference between them. 60 Communities of Interest Preserving communities of interest communities that share common features relevant to the legislative enterprise is the next most common criteria reflected in state law. Twenty-two states redistricting bodies are asked to consider keeping communities of interest whole when drawing 02_Moncrief11_C02.indd 27

14 28 Chapter 2 state legislative districts, including 11 of the 13 western states. Thirteen do the same for congressional districts, including seven western states. 61 Several other legal principles may be viewed as rough proxies for recognizing rough communities of interest: the mandate to follow county boundaries, for example, may be premised on an assumption that citizens within a county share some common desires relevant to legislative representation. The requirement to consider communities of interest directly may be, in this respect, an attempt to step past the proxy. That said, the attempt to define and delineate objective communities of interest is notoriously imprecise. Guidelines in Kansas contained many of the common elements: in keeping voters together, 2002 map drawers were asked to consider [s]ocial, cultural, racial, ethnic, and economic interests common to the population of the area, which are probable subjects of legislation. 62 Montana s current guidelines are similarly broad: Communities of interest can be based on Indian reservations, urban interests, suburban interests, rural interests, neighborhoods, trade areas, geographic location, communication and transportation networks, media markets, social, cultural and economic interests, or occupations and lifestyles. 63 Alabama adds the helpful reminder that [i]t is inevitable that some interests will be recognized and others will not, [but] the legislature will attempt to accommodate those felt most strongly by the people in each specific location. 64 It is relatively rare for legislators to articulate, in any sort of public forum, specific communities of interest when drawing district lines. Instead, these provisions tend to have practical impact ex post, when districts are justi litigation based on a purported community they serve. 65 Political Outcomes The majority of scholarly literature on redistricting, including several contributions to this volume, concerns the link between redistricting and political outcomes in the districts that result both the strength of the link and the differing impacts of differing redistricting structures and systems. Many academics have proposed limits or guidelines on redistricting processes or outcomes that are designed to promote certain electoral consequences. In contrast, the law has remained largely silent on the matter, allowing most redistricting entities usually incumbents, as explained above to seek whatever consequences they please. The federal Constitution, for example, appears to place few articulable limits on redistricting bodies with respect to the pursuit of political objectives. Individual districts may be drawn to favor or disfavor candidates of a certain party or individual incumbents or challengers. Indeed, the Supreme 02_Moncrief11_C02.indd 28 9/19/11 9:53:19 AM

15 Redistricting and the West 29 Court has designated the protection of political incumbents as a favored traditional districting principle ; when evaluating whether a district was drawn predominantly (and thereby unconstitutionally) based on race, evidence that a district was drawn instead to influence an incumbent s electoral fortunes is considered a venerable reason to uphold the district lines. 66 As for the districting plan as a whole, all of the Supreme Court justices appear to agree that excessive partisanship in the redistricting process is unconstitutional, 67 but there is a vigorous dispute about whether it is for the courts to decide when a quantum of partisanship is too much, and if so, what quantum. Justice Kennedy has held open the hypothetical potential for a court to strike down a redistricting plan based on a federal constitutional claim of excessive partisan gerrymandering: a map so skewed in favor of one party that it offends the Constitution. But not only has the court never found such a map in practice, it has failed to agree even on a constitutionally relevant standard for evaluating the skew. 68 As Professor Gary King has explained, though the issue of partisan gerrymandering remains justiciable, it has almost never been justished. 69 State law is also largely silent on the issue, with a few notable exceptions. Nine states California, Delaware, Florida, Hawaii, Iowa, Idaho, Nebraska, Oregon, and Washington expressly prohibit their redistricting bodies, most of which are commissions, from drawing either state legislative or congressional districts in order to unduly favor a candidate or political party. 70 Four states Arizona, California, Iowa, and Idaho attempt to accomplish this objective by precluding the consideration of the residence of an incumbent or challenger in drawing district lines, though some believe this restriction is largely honored in the breach. Many of the same states also limit the use of further political data: Iowa and Idaho purport to preclude the use of partisan voter history in drawing districts, New Jersey allows the use of voter history but declares that it may not support deviations from other districting principles, and Arizona states that [p]arty registration and voting history data shall be excluded from the initial phase of the mapping process but may be used to test maps for compliance with other legal priorities. 71 It is worth noting that it will often be necessary to consider partisan voter history in assessing voters polarization, and thereby legal responsibility, under Section 2 of the Voting Rights Act; this obligation will supersede state law restricting available information, at least in regions where minority populations present the possibility of Voting Rights Act obligations. Arizona and Washington, both states with independent commissions responsible for redistricting, are the only states that instruct the redistricting entities to design districts so that competition is affirmatively encouraged. 72 Both are flexible mandates, to be implemented when practicable and when 02_Moncrief11_C02.indd 29 9/19/11 9:53:19 AM

16 30 Chapter 2 doing so would not detract from other state priorities. Neither further defines the standard for encouraging competition. Other Structural Rules There are three other notable structural rules governing the location of district lines in some states. The first is a nesting requirement a law that, in 14 states, ties the district lines of a state s two legislative houses to each other. In states with a nesting requirement, the districts of the upper house are constructed by aggregating multiple lower house districts (usually two or three), or the districts of the lower house are constructed by subdividing each upperhouse district. In contrast, without nesting, the districts of each legislative house are wholly independent; they may follow the same boundary lines, but they need not do so. In addition to the 14 states that require nesting, California and Hawaii ask that districts be nested where practicable, 73 and New York asks that its districts be nested in counties with multiple assembly districts; 74 in New York, at least, this rule is often ignored in practice. The second rule concerns multi-member districts. Since 1842, federal law has prohibited multi-member districts for Congress, but many local legislatures still elect multiple representatives from a single district. In the state legislature, Arizona, New Jersey, South Dakota, and Washington elect all lower-house members from multi-member districts; 10 additional states expressly authorize the use of one or more multi-member districts; 75 and five states have no law that either prohibits or expressly permits multi-member districts. Multi-member districts in which each representative is elected by majority vote may raise concerns under the Voting Rights Act if voting is polarized and minority populations in those districts are sizable and unable to elect candidates of choice; such concerns can be alleviated through alternative voting rules, though no such rules are presently used for state legislative elections. In some instances, multi-member districts may be used in concert with nesting rules; in Arizona, for example, each district elects one state senator and two state representatives. 76 In other cases, multi-member districts for one legislative chamber are not tied to the districts of the other chamber: a Senate district and a multi-member Assembly district are entirely unrelated. The final structural rule of note is the floterial district: a district that overlaps, in whole or in part, other districts in the same legislative chamber. Florida, Mississippi, and New Hampshire expressly permit floterial districts; 32 states prohibit floterial districts; and the 15 other states appear to have no law regulating floterial districts one way or the other. Most floterial districts arose as a means to preserve political boundaries while also mitigating severe 02_Moncrief11_C02.indd 30 9/19/11 9:53:19 AM

17 Redistricting and the West 31 population disparities. The most basic form of floterial district embraces two underlying districts with equal population: imagine a state with an ideal population of 100 and two adjacent towns of 150 voters each. One means to ensure equal population is to divide the region into three mutually exclusive districts of 100 voters each, subdividing the towns. An alternative, preserving the town boundaries, is to create one district serving each town, and one floterial district elected by the 300 voters of both towns together; 300 people would thus be served by 3 total representatives. 77 Commentators and a few select courts have recognized that floterial districts, particularly floterial districts spanning underlying districts of uneven population, may allot representatives equally to population clusters in the aggregate but create disparities of representation when considering individual voting power or the presumed allegiance of those representatives. 78 Similar concerns arise in jurisdictions where different constituents are aggregated in multi-member districts electing different numbers of representatives. The Supreme Court has thus far declined to address the issue squarely. The Western Approach No single law or guideline or principle mentioned in this chapter, or set thereof, is neutral. Some are more easily or objectively measured or implemented than others, but each implies some vision of representation or accountability or some vision of the actor who should decide when different visions of representation conflict. There is ample debate among scholars, activists, and practitioners about every piece of this puzzle: the role of political insiders, the nature of protection for minority rights, the degree of partisan competition or partisan inequity, the relative importance of political subdivisions or geometric regularity and the ability and desirability of representing homogenous or heterogenous communities, alone and in context. Redistricting rules represent different approaches to working through that debate, some revealing more introspection than others. Even a hypothetical rule that subjugated all of these concerns to abstract mathematical principles would embrace the non-neutral normative view that each of these concerns should be subjugated to an abstract mathematical principle in the apportionment of representation, because either the ends or the means of such an abstract mathematical principle are normatively superior. Moreover, most legal rules mentioned in this chapter are likely to have predictable political consequences, locally if not nationally, that may favor a particular party or set of parties, or a particular candidate or set of candidates, as compared to some alternative rule. That is, most redistricting laws 02_Moncrief11_C02.indd 31 9/19/11 9:53:19 AM

18 32 Chapter 2 not only imply some vision of representation or theory about whom should be entrusted to make representational decisions but will also likely have a tangible impact on any given set of actors electoral fortunes. The fact that representation is a complex system seeking to satisfy multiple objectives simultaneously complicates matters further. Local goals with respect to the composition of individual districts may conflict with jurisdiction-wide goals pertaining to the nature of a statewide delegation. Goals for individual districts will conflict with each other as well, as when the wish to present voters with multiple viable options in a general election confronts the wish to assemble voters with similar interests to encourage representation of an identifiable character. Resolving these conflicts requires either prioritization or compromise, or both, or both to different degrees, in different portions of a map. One of the redistricting discipline s fundamental quandaries is how to embrace this complexity and equip those conducting redistricting with the discretion to resolve these fundamentally political choices on behalf of the population as a whole while ensuring that the process is not subject to abuse. When legislators draw the lines of the very districts they hold (or wish to hold), they face exceedingly strong incentives to pursue personal or partisan interests rather than the interests of the public. This is certainly not to suggest that every legislator conducting redistricting succumbs to such pressures; still, because individual legislators feel the impact of redistricting decisions far more than any individual constituent, the pressures are immense and recurring. Faced with these realities, some have proposed minimizing or eliminating the discretion of those drawing the lines. And in a few states, the governing rules substantially constrain the discretion of redistricting bodies; Ohio s exceedingly rigid rules pertaining to political boundaries, for example, leave its politician commission little flexibility in drawing the lines for the state legislature. The western states, by and large, seem to have taken a different approach: leave the discretion but limit the potential for abuse. These states have led the movement to place redistricting in the hands of individuals not beholden to particular officeholders. As California s brand-new commission shows, western states continue to learn from each other and to innovate with respect to both the form and the substance of their redistricting processes. Neither the independent commissions nor the particular criteria embraced by many of the western states are transportable in toto to other jurisdictions; that which succeeds in Idaho may perform quite poorly indeed in Texas or Massachusetts. And no single element of this western approach if it is even coherent to speak of a western approach in the singular is likely to have the same impact in a different context. 79 Still, redistricting in the West has 02_Moncrief11_C02.indd 32 9/19/11 9:53:19 AM