Attorney Bickerstaff Addresses Critics’ Concerns

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Steve Bickerstaff
Steve Bickerstaff

His September 24 article drew numerous comments about the Proposition 3 Independent Citizens Redistricting Commission

by Steve Bickerstaff

Editor’s introduction: Proposition 3 is on the November 6 ballot. If it gains voter approval and garners more votes than Proposition 4, Proposition 3 would require 10 council members to be elected from geographic districts and the mayor to be elected at-large. Proposition 3 requires an Independent Citizens Redistricting Commission to draw council districts the City Council would have no choice but to adopt.

It is important that Austin voters have a thorough understanding of the Citizens Independent Redistricting Commission before casting ballots in this important election. To that end, on September 24, The Austin Bulldog published attorney Steve Bickerstaff’s scholarly study of the strengths and weaknesses of various systems used for redistricting throughout the nation, including 50 cities. (Bickerstaff’s extensive legal experience with redistricting was detailed in the introduction to that article and need not be repeated here.)

That article drew 20 comments, some of which needed a much fuller response than could be accommodated through posting replies in the comments section. Bickerstaff wrote this piece to address the concerns raised in those comments—specifically the points raised by Proposition 4 advocates Julio Gonzalez Altamirano and Richard Jung. Proposition 4 provides for electing eight council members from geographic districts and the mayor and two council members at-large. Districts would be drawn as determined by a later ordinance.

Steve Bickerstaff
Steve Bickerstaff

Thank you for the opportunity to join the dialogue on the possibility that the voters of Austin will adopt an independent redistricting commission.

I am not a member of Austinites for Geographic Representation (AGR). My clients in the past have utilized essentially every form of election system [e.g. single-member districts, at-large elections (Austin), and hybrid systems using a combination of at-large and single-member elections (Houston)]. Each of these election systems has advantages and disadvantages.

The manuscript that Mr. Ken Martin and The Austin Bulldog kindly made available was not written for the dispute in Austin or to further any particular proposition in the upcoming election. I have already had four offers by law journals to publish it, but I have chosen instead to submit it for peer review and possible publication in the Election Law Journal. The manuscript has become relevant to the upcoming election only because it recommends that cities utilize an independent commission if they have single-member districts. Over the years, I have published three books and over 20 law journal articles. Most of these writings are on election law issues. The manuscript on independent commissions for cities is merely another article by me on an election law issue. I was pleased to freely give of my election law experience when asked by an AGR representative for my help. I admire what AGR has achieved.

After over 35 years representing governments in redistricting, I am convinced that redistricting by an independent commission is far superior to redistricting by the political officials that must be elected from those districts.

I do not know whether Mr. Julio Gonzalez Altamirano or Mr. Richard Jung favor single-member districts or elections at-large. With this introduction in mind, please let me respond to the specific comments submitted by Mr. Altamirano and Mr. Jung.

Mr. Altamirano

Thank you for your comments on my manuscript. You have posed good questions. You obviously have thought about those comments. I will keep your comments in mind when I later edit my manuscript. The following are my initial thoughts on the issues that you raised.

Public interest in redistricting—One of your concerns is that my manuscript does not identify the specific public interest or interests that should be the focus of redistricting.

My manuscript defines the public interest as the specific written criteria that apply in any specific jurisdiction at a particular point in time. There is no normative interest. Federal law (the U.S. Constitution and the Voting Rights Act) obviously take precedence. However, a city’s charter can set other express criteria, such as contiguity and compactness of districts, a ban on the design of a district to advantage or disadvantage an incumbent or a political group, the recognition of certain political subdivisions or communities of interest, etc. These express federal, state and city charter criteria constitute the public interest. What is included as criteria in a charter in one jurisdiction because considered important may be left out of a charter in another jurisdiction because it is not considered important. In my manuscript, I discussed how various states and cities have approached this question of defining this public interest and how several courts have struck down redistricting plans that fail to follow these criteria.

Trying to determine the public interest in the absence of such express criteria is problematic. Many scholastic pieces offer such goals, but I have generally found them (e.g. competitiveness) to lack real-world utility. Moreover, I do not doubt that the state legislators that went decades without complying with state constitutional requirements for periodic redistricting could provide a “public interest” for doing so. So also, legislators or city council members that draw lines to protect themselves from election defeat or to favor or to discriminate against an incumbent or candidate can readily provide a “public interest” rationale for doing so (ask a Republican legislator in Texas why it was in the public interest to defeat congressman Lloyd Doggett). It is impossible to responsibly monitor a situation in which the “public interest” is left to be defined by the participants in the redistricting process. Therefore, only express requirements with the effect of law should be considered in defining the public interest.

The AGR proposal expressly requires in Section 3, Subsection E that the districts comply with certain criteria, including compliance with federal and state law, contiguity, geographical compactness, preservation of neighborhoods, and communities of interest, etc. In addition, subsection F prohibits a district from being drawn to favor or to discriminate against any incumbent, candidate or political group. These express criteria constitute the public interest.

Another way of looking at the question you pose is to ask what redistricting structure is best at achieving these express interests. I explain in the manuscript that when elected officials are called upon to draw the lines of districts from which they will be elected, the public interest (as represented by the applicable criteria) is often overwhelmed by the self-interest of the line drawer, or his or her designee, in achieving a district that is favorable to the incumbent’s reelection or to the enhancement of the power of a political faction. Based on my experience, the self-interested incumbent sees the legal criteria (or public interest) through his or her own political prism. The criteria are often skewed to satisfy the incumbent’s goals. A great strength of an independent commission (as shown in California) is that its members are less likely to have such personal or political agendas, both because of how the members are selected and the limitations that apply after a person serves on the commission.

Monocausal explanations—You are correct that there is no single cause of any particular result nationwide. Every district in every city in every state has its own story. As I acknowledged in footnote 102, there are legitimate reasons (e.g. compliance with the Voting Rights Act) for some districts to be less compact than otherwise possible (please note that the AGR proposal contains a hierarchy of criteria, with compliance with federal law at the pinnacle). However, the single greatest reason why the express criteria (i.e. the public interest, including compliance with the Voting Rights Act) for redistricting in a particular jurisdiction are not followed is because of the personal or political self-interest of the line-drawers. The independent commission is designed to address this reason by reducing or eliminating the influence of politics.

Thin randomness—Of course, the use of random selection from pools of qualified applicants in the AGR proposal is not intended to be a “thick” random selection from the city population as a whole. I would never describe the commission selection process as random. The applicants are screened for qualification according to certain requirements, including the exclusion of registered lobbyists, paid consultants, elected or appointed officials, contributors of $1,000 or more in the last election, non-participation as a voter in past elections, etc. All of these categories of persons are excluded from the commission in order to minimize the possibility that persons who serve on the commission have a personal or political agenda for redistricting or lack knowledge of the city. From these qualified applicants, a total of 60 persons are selected based on their ability to be impartial (along with their analytical skills, geographic and racial diversity, etc.). These requirements too are designed in part to further lessen the possibility that a member serving on the commission may use his or her position for personal or political self-interest, or be susceptible to improper influence. Similar criteria were used in California—where over 26,000 persons applied to serve on the 14 member commission. A further set of requirements applies to anyone that serves on the commission (e.g. the commission member is prohibited for 10 years from serving in an elective city office and for three years from becoming a registered lobbyist or paid consultant). These requirements are also designed to prevent a person from serving on the commission to further his or her own political career, but may also discourage persons with such ambitions from wanting to serve on the commission.

The AGR process makes the city auditor and a panel of certified CPAs responsible for assembling the pool of qualified applicants from which the first eight members of the commission are chosen by random. The members of the pool are selected from the most qualified applicants to try to assure the impartiality and diversity of the members of the commission. The AGR proposal may not be foolproof: then again maybe it is foolproof. It certainly constitutes a comprehensive and good faith attempt at assuring that the members of the commission are impartial and have no political or personal agenda that would interfere with the commission’s objective of complying with the public interest criteria.

Mr. Jung

I am unsure from your comments whether you favor retention of the at-large election system or adoption of an 8-2-1 election structure that leaves control of redistricting with the same politicians who intend to seek election from those districts. You do not dispute any of the reasons given for why politicians should not be allowed to draw their own districts. Nevertheless, you are willing to allow them to do so. Please make clear your position on whether you favor changing from the at-large system to single-member districts and whether you favor allowing politicians to draw the boundaries of the districts in which they will seek election.

You are a respected Austin attorney. I am willing to accept that you are acting in good faith, but some persons would claim that you are masquerading as a concerned citizen to hide a specific political agenda in much the same manner as the witnesses in California criticized by ProPublica. Is it fair to ask “What is your agenda?” If you favor keeping at-large elections, please say so. If you favor keeping some at-large elections (as in the 8-2-1 plan), please say so. The AGR proposal was public for over a year and was widely distributed as part of the petition process. The proposal was vetted in that process and through its modification and approval in the final AGR petition and its support by many city organizations. There was ample opportunity through the AGR, the Charter Revision Commission and at the city council for you to participate. If you did not do so, you should not now be casting stones at the AGR and asking for more “vetting.”

I have read all of your postings about the California Redistricting Commission. They seem intended to attack the AGR proposal like an aggressive adversary without any real interest in the truth of what actually occurred in California or why an independent commission is desirable. Some of your statements are just plain wrong. Others are old and do not reflect the current opinion of how the commission succeeded. For example, you quote Mr. Vargas from an August 16, 2011 press release about Hispanic concerns over the commission’s senate plan. A more current statement is the one from a January 17, 2012 letter to the commission by several organizations, including the California League of Women Voters, the Asian-American Center for Advancing Justice, and the National Association of Latino Elected and Appointed Officials (NALEO). Mr. Vargus signed the letter on behalf of NALEO in which the organizations stated:

“We want to communicate that we think that the Commission took its responsibilities and the enormous task it was responsible for seriously and with care. We feel that, on the whole, the process was successful at being more transparent and inclusive. We also acknowledge that the process wasn’t perfect, and at times was a work in progress. (This is one of the hazards of being the ‘first.’) As you know, many of us, plus others, commented and offered suggestions to you (as well as to the BSA and to the Secretary of State’s office) on improving the process in real-time. We thank you for receiving those suggestions in the spirit in which they were given, and for being open to improving the process as you went along.”

I quoted from and cited this letter in my manuscript. I am disappointed that you ignored this letter while quoting from Mr. Vargus’ August 16, 2011 press statement (which I cited to show how attitudes about the commission had changed over time). Moreover, you selectively quoted from Ms. Marqueece Harris-Dawson in a manner that misrepresented the view of the black community in California. In her article entitled “Redistricting Preserves Black Voice in State Politics” in volume 18, number 2 of the publication Race, Poverty and the Environment she said, “The Redistricting Commission listened to our collective voices and approved a final map that preserves black political representation.” One of the great strengths of an independent commission (such as the one in California) is that it is much better able to respond to public testimony and legal requirements than a political body (such as a city council) that sees such testimony and legal requirements through the prism of their effect on the political aims of the incumbent.

Contrary to your claim, no racial or ethnic minority organization has filed suit challenging any of the commission’s four redistricting plans, or announced plans to do so. The commission’s redistricting plans were used in the 2012 primary and are being used in the November election. Only a small group of Republicans seem upset with the commission’s plans. I do not understand how you can so easily dismiss the facts that:

(1) All of the commission’s redistricting plans received majority approval of at least 12 members of the commission, including a majority of the five Republicans on the panel;

(2) A Republican member of the commission (Mr. Vincent Barabba) disputed Republican criticism of the commission’s work and said that “The voters’ experiment with redistricting reform proves that an engaged and enlightened electorate can make a difference. It is my hope that the commission’s work will go a long way in restoring the hope and confidence of the people of California…” You dismissed his comments by saying he was a member of the commission without mentioning that he was one of the Republican members.

(3) The California Supreme Court concluded that “The Commission’s certified state Senate map is the alternative most consistent with the constitutional scheme and criteria embodied in the federal and state Constitutions.” The Court rejected a Republican challenge that included an alternative plan.

(4) The federal lawsuit filed by some Republicans was summarily dismissed.

(5) All of the districts in the commission’s four statewide redistricting plans received almost instant preclearance under Section 5 of the Voting Rights Act—something that the Texas Legislature and the Texas Legislative Redistricting Board have never been able to do in five decades. The Texas Legislature is still trying to obtain preclearance of three legislatively drawn statewide plans passed in 2011.

(6) Professor Cain acknowledged that the general reaction of the public and media has been favorable to the commission’s work. There are many articles that reflect this opinion. One publication declared that “Well, there’s one state body that’s shown multi-partisan, good government agreements still are possible and that’s why the 14 members of the California Citizens Redistricting Commission are my choice for Californians of the Year.” I did not try to list all (or even a significant number) of these articles in my manuscript because the manuscript is about cities, not about the California redistricting commission.

(7) The redistricting plans adopted by the commission were drawn to comply with the objective criteria set in the constitution and without reference to partisan election results or the residency of any incumbent. There has been no allegation that the commission drew any district with the intent to benefit or to discriminate against any incumbent, candidate or political party. If more of the districts end up electing Democrats (which remains uncertain), then it is because of the state’s current demographics, not political gerrymandering. Any allegation that the commission plans favored Democrats fails to recognize that the plans resulted in the pairing of many Democrats, including several of the most powerful legislators in the state.

(8) The Republican Party’s insistence that it is entitled to increased representation in state redistricting plans in California is inconsistent with the fact that the plans were drawn without reference to partisan election data, and that the overwhelming growth in the state’s population was actually due to an explosion in number of Hispanic persons, not Republicans. In fact, Republican voters are more likely to be a lesser percentage of total voters in California now than in the past as shown by how Republicans decisively lost every statewide race in California in 2010 when Republicans were doing well elsewhere across the country.

(9) ProPublica’s report has been largely discredited. ProPublica reported that some Democrats organized to testify on behalf of plans that benefited Democrats, but mislead the commission by not explicitly saying they were trying to protect Democrats. The organization’s report has been shown to be based largely on information from sources that are clearly partisan Republican (e.g., The Rose Institute). Most scholars, including Professor Cain, have virtually ignored the report because it smells like a partisan smear job and because, although an interesting study of political organizing, it provided little or no information that was surprising. Virtually every group, including Republicans, organized to influence the commission. This occurs in every redistricting process. Witnesses almost always testify in redistricting hearings (including those before a city council) about preserving communities of interest, not about enhancing political party strength or protecting incumbents even though this may be their actual objective. In fact, some Republican witnesses testified in favor of plans that would divide black communities to preserve a different “community of interest” that would likely vote Republican. The California commission saw through both the Democratic and Republican charades (one source said, “It would have been easier to influence North Korea than the commission”). I think that the voters of Austin are equally able to identify a faction seeking to game the system.

(10) Given the success of the California commission, Ohio is voting in November on a constitutional amendment to create a similar independent commission. Like California and Austin, the opportunity to create such a commission came through a voter initiative, not through the Legislature. Legislatures and city councils generally resist any effort to take the power of redistricting away from them.

Not even Republicans or the ProPublica coverage have made any explicit claim that the Commission (with five Republican and four independent members) intentionally favored the Democrats. There were plenty of political scientists and pundits who thought beforehand that the California Commission would fail. However, I found no substantive criticism of the California commission’s actual work except in the ProPublica report, which I discussed in the manuscript and ultimately, like most of my colleagues, found lacked credibility.

The presence of the provision in the AGR proposal for a student on the commission is unique to Austin. I do not know the history of this particular provision, but it acknowledges the importance of this group of voters to the city. I do not think such an exception is unlawful if approved by a majority of this city’s voters casting ballots on the proposition. Do you think otherwise?

You suggest that I failed to adequately explain why I did not favor Professor Bruce Cain’s proposal for adoption in Austin. Contrary to your representation, the manuscript (as opposed to any single footnote) is full of my reasons for doing so. Cain proposed combining a citizen commission (like California) with the autonomous bipartisan commission such as the commission in New Jersey. This proposal is intended to emphasize compromise between the two major political parties. As I explained at length in my manuscript, I disagree with Professor Cain on this objective because, while a bipartisan commission might reduce conflict between the two major parties, it often accomplishes this objective through incumbent protection plans for both parties. The public interest (see the response to Mr. Altaminaro) suffers. As related in my manuscript, the supreme courts in five of the ten states with autonomous bipartisan commissions have struck down one or more of the commission’s redistricting plans in the 2011-2012 election cycle. It is apparent that in each instance the bipartisan commission had achieved a political compromise at the expense of violating one or more of the state constitution’s express criteria for redistricting. I explicitly stated in my manuscript that one reason I disagreed with Professor Cain is that his recommendation envisions more politics in redistricting when (for the reasons I expressed) there should be less. Moreover, Professor Cain’s proposal is not apropos for Austin because it is designed to work at the state level in a partisan election structure, not in nonpartisan elections at the city level.

I also feel that your criticism of Mr. Martin is unfair. I am fully responsible for the manuscript and, by putting it out in the public, Mr. Martin has stimulated the discussion to which you have contributed. Also, your criticism is based on a use of outdated and incomplete quotes and quotes taken out of context. This should have been evident to you if you read the entire manuscript and the cited references. By not doing so, you overlooked and thus subsequently misrepresented the basis for my conclusions. I did not base my recommendation about independent commissions or the California commission on my personal preference or only the two articles that you mentioned. In fact, I did not base my conclusions on anyone else’s opinion, but on the facts (some of which are mentioned above). It was very unfair for you to allege so. History has shown us in incontrovertible fashion that leaving redistricting to the officials who are seeking election in those same districts is a big mistake. The experience in California was very positive considering the diversity of the state. It provides the best model for adoption by the voters of Austin.

You claim that the AGR proposal is poorly drafted. I cannot claim full credit for drafting the proposal, but I disagree strongly with your assertion. In drafting a constitutional or city charter provision, there are essentially two alternative routes to follow. One is to draft the provision in brief general terms and leave the details to be determined by statute or ordinance. The second route is to include the details in the constitutional or charter provision so as to prevent the legislature or city council from adopting statutes or ordinances that effectively alter or gut the provision. An elected official’s self-interest in redistricting is a reason why most redistricting provisions follow the second route (as did the AGR). The AGR proposal compares favorably with commission provisions in other states or cities. I suggest you review the redistricting provisions in New York City and Arizona.

Conclusion

Finally, I would note that both the City Council and the proponents of the 8-2-1 plan could have proposed a different form of redistricting commission but did not do so. Instead, they seem comfortable with allowing this city’s election districts to be drawn by the politicians to be elected from those districts. Persons may reasonably disagree with some aspect of the AGR proposal, but no there is no doubt that an independent commission is superior to a scheme that allows the districts to be drawn by the same politicians seeking election in those districts. Moreover, a defeat of the AGR proposal means that there is little or no possibility that another form of an independent commission can be adopted in the future because the only manner in which a commission independent of the council may be adopted is through a charter amendment. The Austin City Council is left controlling the redistricting process just as in the Texas Legislature or in Dallas City Council where the Dallas Morning News described the city council’s redistricting process as one in which “Deals were cut behind closed doors. And a slapped-together, gerrymandered map that protects incumbents and shortchanges Latinos was the result.” The residents of Austin deserve better. I respect AGR for what the organization has achieved through the initiative process.

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s coverage by making a tax-deductible contribution.

Related Bulldog coverage: This is The Austin Bulldog’s 29th article covering issues and activities pertaining to the proposed changes to the Austin City Charter.

Feisty Debate Over Electing Council Members: One panelist argues for no change to the at-large system of City Council elections, October 4, 2012

Proposition 3 and 4 Proponents Rev Their Campaigns: Raising money, organizing troops, and pushing plans for geographic representation on Austin City Council, September 28, 2012

Redistricting Need Not Be a Quintessentially Political Process: Independent redistricting commissions for U.S. states and cities, September 24, 2012

Barrientos Lampoons Prop 4 With a Fable: Other proponents of alternative plans for geographic representation push their points, September 14, 2012

Proposition 3 Advocates Falsely8 Accuse RECA: Group alleges ‘rumor’ of $100,000 pledge by Real Estate Council to defeat Proposition 3, but RECA says not so, September 12, 2012

No-Change Option Surfaces in Ballot Debate: Former Council Member Bob Binder opposes both options on the ballot for geographic representation, September 11, 2012

The Election Wars Have Begun: Interest in how council members elected running high, as face-off debates abound, September 9, 2012

Your Guide to Proposed City Charter Amendments: What’s on the ballot, what it will cost taxpayers, and details provided in the ordinances for each proposition, August 30, 2012

Loud Rally Follows Final Council Vote for 8-2-1: AGR’s Cries Foul Over Work Session Vote for Hybrid; Mayor Leffingwell Said Votes Driven by Ballot Deadline, August 7, 2012

Council Backers of 8-2-1 Plan Accused of Self-Interest: But Facts Don’t Seem to Substantiate Such a Claim, as Related Actions May Bar Most Incumbents From Reelection, August 6, 2012

8-2-1 Near Certain to Go on Ballot: City Council Votes on Second Reading to Put Competition Election Plan on Ballot, July 31, 2012

10-1 Plan Qualifies for November Ballot: Consultant Estimates That 22,435 Signatures Are Valid; Austinites for Geographic Representation Readies for Battle, July 26, 2012

Petition Completed for 10-1 Council Districts: Austinites for Geographic Representation Claims 33,000 Signatures, of Which About 22,800 Are Considered Valid, July 16, 2012

Council Puts 10-1 Election Plan on November Ballot: Votes 5-2 on Three Readings to Adopt Petition Language, Votes 4-2 on First Reading to Also Put 8-2-1 on Ballot, June 29, 2012

Citizens Group to Make Final Petition Push: Austinites for Geographic Representation Claims to Have 17,000 Signatures, and Shoots for 13,000 More, June 4, 2012

City Council Tackles Charter Amendments: Redistricting Expert, Charter Revision Committee Members, and Grass-roots Group Critical of Task Force Plan, April 26, 2012

Council District Backers Want Quick Ballot Decision: Big Press Conference, Big Pressure Promised, to Get Council Decision Before Council Elections, March 8, 2012

Hard Fought, Heartfelt Charter Decision: Charter Revision Committee Votes 8-7 to Back 10-1 Plan for Council Elections, February 3, 2012

New Restrictions Proposed for Lobbyist Fundraising: Lobbyists Can Only Give Candidates $25 But Can Collect Unlimited Contributions For Them, January 22, 2012

Committee Debates How to Elect Council: Charter Revision Committee Divided Over Pure Districts vs. Hybrid System, January 9, 2012

Thirteen Charter Changes and Counting: Charter Revision Committee’s Next Job: Tackle Plan for Geographic Representation, December 14, 2011

Council Confirms November 2012 Election Date for Charter Amendments: Resolution Ensures Citizens Initiative Won’t Force May 2012 Charter Election, November 3, 2011

Coalition Launching Petition Drive to Get on the Ballot for May 2012 Election, October 18, 2011

Broad Community Interest Focusing on How Mayor and Council Members Elected, October 4, 2011

Coalition Nearing Petition Launch for Grass-roots Council District Plan, August 24, 2011

Maps Prove Select Few Govern Austin: Forty Years of Election History Expose Extent of Disparity, August 4, 2011

City Council to Consider Proposal to Create Geographic Representation: Election Dates, Term Lengths, Redistricting and Other Charter Changes in Council Resolution, April 27, 2011

Petition Launch Imminent to Force Election for Geographic Representation in City Elections, March 7, 2011