Redistricting Need Not Be a Quintessentially Political Process

0
2601
Steve Bickestaff

Independent redistricting commissions for U.S. states and cities

Editor’s introduction: Over the past 36 years attorney Steve Bickerstaff, adjunct professor at the University Of Texas School Of Law, has represented more than 100 jurisdictions on redistricting matters, including during the redistricting process, or before the U.S. Department of Justice, or in state or federal courts. These jurisdictions include the State of Texas (in three different decades) and various local governments (cities, counties, school districts, community colleges and special districts) in Texas and elsewhere. The electoral systems of these jurisdictions have included wholly at-large, wholly single-member, and hybrid or mixed (partially at-large) election structures.

He is author of Lines in the Sand (2007), a book about the controversial 2003 congressional redistricting in Texas; co-author of International Election Principles (2009); and author of 25 law journal articles dealing primarily with election law and telecommunications regulation.

Bickerstaff wrote the initial draft for the nonpartisan Citizens Independent Redistricting Commission. The Commission is an integral part of Proposition 3, which was put on the ballot through a petition drive conducted by Austinites for Geographic Representation. Bickerstaff’s draft was based on the Voters First Act, which through initiative and referendum established a system of independent redistricting in the State of California.

It is important that Austin voters have a thorough understanding of the Citizens Independent Redistricting Commission before casting ballots in the November 6 election. To that end, The Austin Bulldog is publishing Bickerstaff’s scholarly study of the strengths and weaknesses of various systems used for redistricting throughout the nation.

Steve Bickestaff  Much has been written about the use of redistricting commissions for redrawing state legislative and congressional district lines. Twenty- two states now have some form of commission. However, the nature, jurisdiction and importance of these commissions vary greatly. By contrast, virtually nothing has been written about the use of redistricting commissions at the local level of government. This is particularly surprising because virtually all large and middle-size U.S. cities use at least some election districts that must be redrawn every 10 years, and because most of these cities are home-rule jurisdictions that generally have broad legal authority to adopt their own process for drawing local election district boundaries.[1] A purpose of this article is to provide government officials, public interest activists, and attorneys with a means for assessing the value of a municipal redistricting commission and for designing such commission to take self-interest and bias out of a process in which they have no legitimate role.[2]  

This article begins by describing the problems that arise from the historical means of redistricting—i.e., allowing members of a state or local legislative body or local governing board to draw the boundaries of the areas from which they are elected. Much of this part of the article is derived from my own experience over the past 35 years of representing state and local governments on redistricting issues. Part II urges that the public interest in redistricting is best defined in terms of compliance with express constitutional, charter or legal requirements; not assumptions that a legislature or city council is acting in the public interest. The body responsible for redistricting should not be entitled to any latitude in interpreting the public interest beyond these express requirements. A brief survey and categorization of the types of redistricting commissions used among the states allows a needed assessment of the types of redistricting commissions in use at the state level as potential models for city commissions. Part IV provides a more extensive categorization and assessment of redistricting commissions now existing at the municipal level, based on a survey of the 50 largest cities nationwide.

A premise of this article is that redistricting need not be a quintessentially political process.[3] This premise is a major point of contention between me and many other writers. I accept that party and group politics are an unavoidable part of law-making even at the city level. I also accept that, once drawn, every election district line has a political effect. However, there is a difference between the inevitable effect of drawing any election district boundary and the controllable purpose behind that redrawing process. Periodically redrawing election district boundaries to reflect demographic changes was never intended as an opportunity for partisan majorities to flex their muscles or for incumbent lawmakers to try to protect themselves from election defeat. Nor was it intended as a means for other politically ambitious persons to further their own political self-interests through service on a redistricting commission. However, as long as redistricting remains a task for legislatures or local governing bodies, or the political commissions that they control or influence, the process will be mired in personal and partisan self-interest to the detriment of the public interest.

Part V argues that cities should adopt an independent redistricting commission as the best means of taking self-interest out of the redistricting process. Part VI establishes the key criteria for designing a commission independent of political influence or control. Again much has been written about the criteria to be applied in drawing a map, but little attention has been given in the legal scholarship to how a commission can be designed so that such map drawing is free of partisan and personal self-interest. This article aims at addressing this deficiency in part by taking lessons from what is already present in state constitutions and city charters.

Part I
The problems of allowing officials to draw the boundaries
of the districts from which they are elected[4]

The requirement to periodically reapportion seats in this country’s representative bodies to reflect changes in population has always been a fundamental principle of this country’s democracy. Since ratified in 1788, the United States Constitution has required that “Representatives … shall be apportioned among the several States which may be included within this Union, according to their respective numbers …” as shown in an enumeration of persons made every ten years.[5] Virtually every state constitution has similarly required periodic apportionment[6] of legislative seats in at least one house of the state legislature.[7] Most cities that elect council members from election districts have a charter that requires that those districts be redrawn at least every 10 years. Some charters require that the districts be redrawn more often when necessary because of city annexations. The basic aim of apportionment is “fair and effective representation.”[8]

Law journal articles directed at possible reform of the redistricting process at the state level are common and instructive.[9] Redistricting at the municipal level has escaped such attention. However, it has not escaped the attention of the public or local media. For example, in Los Angeles, the 2011 map was criticized as “ugly” and “dysfunctional” because of city politics.[10] In Chicago, the city’s recent redistricting process was described by the Chicago Tribune as “quintessential Chicago politics” that occurred “behind closed doors” with the emphasis on “incumbent protection.”[11]

The Dallas Morning News was similarly critical of that city’s 2011 process, observing, “Racial politics and self-preservation got in the way of good decision-making. Deals were cut behind closed doors. And a slapped-together, gerrymandered map that protects incumbents and shortchanges Latinos was the result.”[12] These comments about Los Angeles, Chicago and Dallas reflect the public cynicism that generally exists about redistricting in major cities when the city council draws its own council districts.

Historically the lines of election districts have been drawn or enacted by the legislative or governing body of the affected jurisdiction: The legislature has drawn the boundaries of state legislative districts; a county governing body has usually drawn the boundaries for its members; and in cities and school districts utilizing single-member districts, the council or board of trustees has drawn the districts.[13] A state’s legislature historically has had responsibility for drawing the boundaries of the districts from which members of the United States House of Representatives from a state are elected.[14]  Initially in this article, it is essential to identify the problems inherent in allowing politicians to draw their own election district lines. Some problems are unique to cities, but, in general, the same types of problems occur at the state and city level.

Neither state legislatures nor local governing boards have a good record of abiding by the express provisions the constitutional or charter provisions governing redistricting. Despite the presence of such provisions requiring periodic redistricting or reapportionment, most state and local governments in this country went decades in the early 20th Century without doing so.[15] Once confronted by a court-enforced standard of “one person, one vote,” many jurisdictions dragged their collective feet.[16] In recent decades, the gerrymandering of districts has become the norm as a means of avoiding or limiting the effects that should come from redistricting to reflect demographic change. District boundaries are gerrymandered in bizarre and contorted shapes to benefit incumbents, their friends, or a political group, candidate or interest, or to punish or defeat a particular incumbent. Self-interests have come to dominate a process intended to maintain the fundamental right of all persons to equal and effective representation in our democracy.[17]

Self-interest is evident in redistricting at both the state and local levels. Incumbents at both levels want any redrawn districts to help (or at least not hinder) their reelection. However, since many cities have nonpartisan elections, it is incorrect to view all city elections as contests between the major political parties.[18] Nevertheless, it is also wrong to view them as solely influenced by the candidates themselves. Within a city, factions, such as self-identified pro-business, anti-tax, pro-environment, pro-growth, or similar factions of voters, battle for control. Neighborhoods, religious groups, or organizations like gay and lesbian voters that are not large enough to control a state legislative or congressional district may organize and fight to create a city district “of our own” that can give the area, group or organization greater political clout. Cities also must also deal with racial and ethnic issues during redistricting; made more difficult by the great diversity of such groups in some cities and the great number of racial and ethnic minorities in urban areas. Local issues, such as taxes, zoning, economic development, transportation, budget, etc. are different in scope or nature than state issues, but they generate a similar or greater level of conflict. In the view of some observers, struggles over these local matters generate more intense political feelings than the more remote decisions on state or federal issues.

The primary personal self-interest of an incumbent member of a city council in redrawing districts is reelection.[19] He or she has won election in the past with the support of certain categories of voters residing in a certain geographical area that constitutes the existing district from which the incumbent won election. From the perspective of an incumbent, any future election success after redistricting is likely to depend on whether the new district in which the incumbent will seek election contains a majority of these same voter categories. In most circumstances, this means that the incumbent simply wants to retain as many of the friendly voters as possible from his or her previous district. However, this wish may be impractical.[20] In order to comply with the U.S. Constitutional requirement that these new districts must be reasonably equal in population, voters may be added or taken away from this existing district, or neighboring districts—with the necessary changes rippling throughout the jurisdiction. As a result, the redrawn district in which an incumbent resides after redistricting is seldom identical to the previous one. The incumbent perceives that election success in the future will depend on not being paired with another incumbent and on the voter composition of this redrawn district so the incumbent tries to control which voters and areas are included in or excluded from this new district. The ultimate shape and composition of the new district depends on many factors, but, from the incumbent’s perspective the dominant issue is his or her electability from the district. Each incumbent is being driven by this same objective. Thus, the incumbent gerrymander is born amidst the compromise and trading of geographic areas and voters among these incumbents.[21]

The partisan or faction self-interest in drawing city council districts is to benefit a particular political party or faction over competing parties or groups in elections to the city council. Usually this effort involves the lawmakers from this political party or faction voting together to pass a plan that draws districts in such a manner that, based on party voter registration or prior voter behavior of the persons in the districts, the group will win as many seats on the city council as possible in the future, commensurate with the risk that the group is willing to assume. The risk is twofold. A plan that goes too far in its attempt to benefit the interests of a political party or faction may run afoul of federal or state legal requirements. The plan may be declared invalid and a new one drawn by the courts.[22] There is also a risk that the new districts may not perform or benefit the controlling party or faction as expected. Since drawing equally populated districts in a jurisdiction is a zero-sum exercise, a plan that provides this controlling political party or faction with a thin majority of voters in as many districts as possible risks that the group’s candidates may lose these districts in the future if the voter behavior has been misjudged, the demographics of the district change, the opposing group sweeps an election, another segment of the same political party or faction supports its own candidate in the party primary or some other unexpected event occurs.[23] An alternative for the controlling political party or faction is to draw districts that appear to have a sufficient majority likely to vote for the faction’s candidates even in the face of such contingencies. [24] This latter alternative, however, in a regime of equally populated districts[25] necessarily means fewer districts in which the political party or faction is a majority. The partisan gerrymander is born from this dilemma.[26]

Whenever a district is drawn for self-interest reasons, the public interest loses out or is ignored in the effort to construct discrete election districts that contain like-minded voters. Sometimes personal and partisan or faction interests overlap; sometimes they conflict. A plan that maximizes a group’s clout may be seen by some individual lawmakers as unnecessarily endangering their own chances of reelection.[27]

The presence of self-interest in a redistricting plan does not necessarily result in misshapen districts. Sometimes the advantage intended for a political group, or for an incumbent takes the form of a population imbalance among districts or the failure to follow express guidelines for redistricting. The shape of the affected districts may be uniform and aesthetically attractive, but the intent and effect is still self-interest, not public interest.

Further problems exist. Self-interest in redistricting often dominates over the public interest in other policy areas. Redistricting is a legally complicated and time-consuming process. Officials rarely have sufficient time during a redistricting process to focus on the needs of the public in redistricting, while also dealing effectively with other issues and duties. This is especially true when an officeholder views the outcome of the redistricting process as likely to determine his or her political future. In such circumstances, redistricting dominates the officeholder’s time and attention. Substantive decisions often languish and officeholders trade votes on important issues in return for another member’s support or opposition to a particular redistricting plan or boundary change.[28] In other words, the mere presence of redistricting as an issue before a city council can affect the outcome on critical policy issues like the budget, taxes, public health, roads, zoning, etc.

Objective legal advice is often rendered ineffective in a circumstance in which an officeholder is concerned about a map’s effect on his or her chances of reelection or the interests of his or her political or partisan affiliate. No officeholder wants to adopt a blatantly illegal redistricting plan. However, the officeholder often sees redistricting legal advice through a prism colored by the incumbent’s self-interest. The issue becomes “how far can we go (toward achieving personal or partisan goals) without breaking the law” rather than “what does the law require or expect?” It is common for an elected official to simply find another attorney (particularly one aligned politically) for a different opinion when dissatisfied with the advice of legal counsel, even one hired especially for his or her expertise in redistricting.[29] Legal advice is skewed and often compromised when confronted by the self-interest of a city council drawing its own election districts.

Over time, the effect of redistricting by the same persons who must seek election in those districts is to limit the power of voters and to create virtual political fiefdoms in which an incumbent is seemingly invulnerable to defeat.[30] By manipulating the boundaries of his or her election district to include areas with friendly voters and major contributors and to exclude other areas that might harbor a political adversary or unfriendly voters, an incumbent can prolong his or her political life by manipulating the public will. As frequently noted, the incumbent in effect picks his or her voters rather than vice versa. It was in this context that the political gerrymander and noncompetitive districts became the norm.

General public input is seldom the basis for redistricting. Some writers have correctly pointed out that often public testimony is parochial or is orchestrated or manipulated by the political parties or interests.[31] Even if submitted in good faith and potentially useful, the public testimony is often ignored. The real decision-making within a legislature or city council is obscured through a charade of public hearings and meetings. Legislators and members of a city council are accustomed to wheeling and dealing on policy issues and legislation out of sight of public or media eyes. There is no area in which this practice is more prevalent than redistricting. Public hearings may occur throughout the jurisdiction and last for hours. Members of the public may submit redistricting plans for all or part of the jurisdiction. However, the official plans are often being designed elsewhere at the same time with attention to the compromises necessary for final passage of the plan. Often these plans are designed without significant attention to the public’s comments.[32] Final adoption of a redistricting plan may occur in an open meeting or legislative session, but the deals that made it possible were cut out of public sight.

There are, however, some other individuals, businesses, organizations and special interests from outside the city council that effectively bring politics to the redistricting process. The most obvious organizations are the political parties. However, in cities with non-partisan elections, local organizations and factions also wish to maintain the maximum number of winnable or safe seats for candidates affiliated with their faction. Since allocating voters of a particular political tendency among equally populated districts is a zero-sum exercise, a political party or faction must sometimes choose among affiliated incumbents to decide those that are most expendable or are most in need of electoral help through redistricting. The result can be intense internecine political battles among incumbents over a party or faction’s support for the allocation of the finite supply of friendly voters during redistricting. Other individuals, businesses and organizations from outside the legislature or governing body can intervene to help protect favored incumbents or to defeat disfavored incumbents. Their interests too are political—using their influence on key officials and the redistricting process to hold on to existing relationships or advantages or to create new ones.[33]

Political objectives in a plan may not make the redistricting plan unlawful, but they make a plan’s legality harder to defend. Courts and the Department of Justice (under Section 5 of the Voting Rights Act) consider bizarrely shaped or clearly gerrymandered boundaries in a redistricting plan as indicia of improper intent. Since political motives do not make a redistricting plan illegal under federal law, jurisdictions are left to argue that the weird shapes of its enacted districts are only a matter of benign “politics,” not racial or ethnic discrimination.[34] Plans that clearly show the presence of an effort to comply with the law and to serve only neutral redistricting objectives are much easier to defend than ones designed to further undisclosed partisan and personal interests.

All of these problems exist at both the state and municipal levels during redistricting, but some issues take on a different appearance at the city level. Many cities have nonpartisan elections so the contests for control of the local governing board may be between self-identified pro-business, pro-environment, pro-growth, or similar factions of voters rather than the major political parties. Neighborhoods, religious groups, or organizations like gay and lesbian voters that are not large enough to control a state legislative or congressional district may organize and fight to create a city district “of our own” that can give the area, group or organization greater political clout.[35] Cities must also deal racial and ethnic issues during redistricting; made more difficult by the great diversity of such groups in some cities and the great number of racial and ethnic minorities in urban areas.[36] Although local issues, such as taxes, zoning, economic development, transportation, budget, etc. are different in scope or nature than state issues, they generate a similar or greater level of conflict. In the view of some observers, struggles over these local matters generate more intense politics than the more remote decisions on state or federal issues. A particular problem for many cities is the concentration of the residences of council members in a single part of town. This particular problem probably had its genesis when the city election system was new. Each time redistricting occurred; districts were drawn by the city council to keep the incumbents unpaired. As a result, over time, many districts have become elongated or misshapen, with the initial officeholders and their successors continuing to reside in the same areas within the city. For this and other reasons, redistricting plans for major U.S. cities contain bizarrely shaped and clearly gerrymandered districts.[37]

Perhaps the foremost problem, however, at the state and local levels is the skeptical, even cynical, view that most persons hold about a state legislature or city council redistricting itself. The public sees officeholders acting in their own selfish interest—no matter how many public hearings may accompany the redistricting process, or how many times the officeholder may insist that he or she is acting for the good of the people. This cynicism increases public distrust of elected officials. Some see the dysfunction of government at every level as a by-product of self-interest fed at least in part by self-interested redistricting.

Part II
Defining the public interest in drawing election districts

Courts have deferred to state and local redistricting plans because, as with any legislation enacted by a state legislature or local governing body, the enactment is presumed to be constitutional and embedded with public policy decisions made by the public’s elected representatives.[38] The judicial inquiry into the legality of a legislature or governing board’s redistricting plan starts and stops with whether the plan violates any specific legal constraint.[39] Courts have never held that the personal and political interests of officeholders are unacceptable as motives for drawing specific districts unless expressly prohibited by law.[40] In fact, most court decisions seem to accept such interests as unavoidable.[41] It is only when districts drawn to further such interests actually conflict with express state, federal, or city charter legal requirements that a redistricting plan may be struck down. A brief summary of these requirements may be helpful. The United States Constitution imposes the fundamental constraints: i.e. requiring that election districts for a state or local legislative body must be approximately equal in population[42] and are not intended to discriminate against an insular minority.[43] The U.S Voting Rights Act of 1965 prohibits any voting qualification or prerequisite for voting from being applied in a manner that results in the denial or abridgement of the right of any citizen to vote on account of race or membership in a language minority;[44] or in jurisdictions covered by Section 5 of the Act, any change in election procedure or practice that has the purpose or effect of denying or abridging the right to vote on account of race or membership in a language minority.[45] These requirements remain the preeminent statements of public policy for redistricting. Other traditional or neutral redistricting criteria, such as contiguity and compactness, are not legally required by the U.S. Constitution or federal law.[46]

State constitutions and city charters, however, often specify additional criteria, such as contiguity, compactness or the preservation of local government boundaries or communities of interest in redistricting. These provisions are expressions of public policy adopted by the voters of the jurisdiction. They “are directed … to the people’s right to elect representatives in a fair manner so that each person’s vote counts equally and so that all citizens receive ‘fair’ representation.”[47] If not followed, these requirements can result in a redistricting plan being declared invalid.[48] On the other hand, no federal law or state constitution or city charter explicitly recognizes a lawmaker’s personal or political interests as legitimate considerations during redistricting. State constitutions and city charters presumably could specify incumbent protection, or political party enhancement of power as legitimate and justifiable. They do not.[49] No state legislature or city council has tried to obtain a public vote explicitly endorsing the legitimacy of such interests. This failure to even ask for public approval of such interests speaks volumes about how the elected officials themselves recognize that voters generally do not support the use of the constitutional duty of redistricting to advance an officeholder or political group’s self-interests. Yet, so long as the city council effectively controls the drawing of the districts from which its own members are elected, any redistricting is virtually certain to be dominated by personal and political interests, or at least to be affected by the tension between such interests and the official criteria and policy imposed by the charter or state or federal law.[50]

The public interest should be determined strictly by the express criteria established in the state constitution, city charter and federal law. This position avoids the insoluble disputes over whether either partisan or incumbent-protection gerrymandering is a normative good or evil, whether partisan gerrymandering causes polarization among the elected representatives, and whether ideologically “pure” districts give voters a more meaningful choice at the polls.[51] If approved by the voters of a jurisdiction, then such gerrymandering is in the public interest. If not, it has no proper role in the process. However, in the absence of such approval, more is required. Express criteria alone do not free redistricting from the effects of self-interest. The self-interest remains in the face of express criteria; although its manifestation may be less obvious. It is equally foolish to think that a commission chosen by those officials or their political party is free from the influence of such interests. Therefore, as discussed in Part V, only a truly independent commission can be expected to reliably draw districts according to such express public interest criteria.

Part III
State redistricting commissions

Although this article is focused on redistricting commissions at the municipal level, a brief overview of the structure and use of state redistricting commissions is helpful. State commissions provide many different potential models that a city might adapt for use in council redistricting. Moreover, an overview of state commissions is useful in assessing the effectiveness of different structures in removing political self-interest from the redistricting process.

Sources frequently differ about how many states actually use redistricting commissions. This confusion arises from the diversity in the jurisdiction, power and purpose of these different commissions and the reality that the number of state commissions is constantly changing.[52] At present, 23 states have legally formalized some mechanism (usually by constitutional amendment) for officially drawing redistricting plans outside the state legislature. Twenty-two of these states use commissions.[53] However, six of these commissions are backup commissions that exist only if the state legislature fails to timely adopt redistricting plans.[54] Three of the other states use only an advisory commission, with the final authority over redistricting remaining with the state legislature.[55] Two more commissions consist primarily of state officials and have no authority over redrawing congressional boundaries.[56] All of the remaining 11 commissions are autonomous and have authority over redistricting of state legislative districts without legislative inaction or oversight[57], but only six have authority over the drawing of both state legislative and congressional boundaries.[58]

The following is a brief description of the structure for redistricting in the 23 states that in the 2011-2012 redistricting cycle had a mechanism required by law for drawing redistricting plans outside the state legislature.

Iowa—[59] This state deserves its own category because its redistricting mechanism is different from any other state and because the state is often cited incorrectly as using a commission to draw state legislative and congressional districts.[60] Since the 1980s, redistricting plans for the state legislative and congressional districts are prepared by nonpartisan staff (Legislative Service Bureau) without consideration of certain political or election data.[61] The state assembly can only vote to accept or to reject each staff plan, but not to amend any plan.[62] Ultimately the legislature and the governor have control of the final redistricting plan because if the staff proposed plans are rejected twice, the legislature can then amend or substitute for the third staff plan as with any other legislation.[63]

Advisory commissions—Several states utilize a commission to advise on redistricting (often submitting a suggested districting plan), but the ultimate responsibility remains with the legislature.[64] These advisory commissions may be required by law[65], or created ad hoc[66]. In some states, there even is a second commission to advise the commission actually charged with redistricting.[67]

Backup commissions—The state constitution of six states provides for a “backup” commission to be created if the legislature does not timely adopt redistricting plans.[68] At one time, such backup commissions were considered an important part of redistricting reform.[69] In theory, the existence of such a commission provides an incentive for a legislature to act. In reality, however, the situation is much more nuanced because the political and personal interests of the elected officials may vary.[70]

State officer commissions—In two states, Arkansas and Ohio[71], the commission with authority to redistrict state legislative seats consists wholly or primarily of state officials. Such commissions are ripe for political considerations in redistricting, especially since the commission composition is not required to be bipartisan.[72]

Bipartisan commissions—Ten states[73] have commissions that sometimes are called independent commissions[74], but really are designed to be bipartisan (i.e., there is some effort to balance the membership of the commissions between the two major parties). In six of the states with bipartisan commissions, an additional member or chair of the commission is selected by vote of the other members, or, if the members deadlock, the decision on the member or chair is made by an outside “unbiased” source.[75] This method of selecting the commission chair or odd-numbered member is designed to avoid partisan gridlock on the commission and to increase the likelihood of approval of a plan free of extreme partisan politics by appointment of a neutral or unaffiliated person as the commission’s deciding vote.[76].History has demonstrated that the use of a bipartisan commission is no assurance that a plan adopted by that commission will be nonpartisan or emphasize the public interest over political or personal interests. In some instances, the “unaffiliated” commission member provides the vote that allows one party’s commission members to gerrymander districts to the detriment of the members from the other party.[77] In this regard, a member of the Colorado commission has called that state’s bipartisan commission in 2011 a “total failure” because the “Democrats totally dominated the process and instituted one of the severest gerrymanders in state political history.”[78] He explained that “whichever political party has a six-vote majority can do whatever it wants and always does.”[79] In other circumstances, a bipartisan commission’s plan is the result of a (perhaps unspoken) agreement by the representatives of the two major parties to adopt a plan that equalizes the opportunity for the two major parties by protecting incumbents of both.[80] A plan that emphasizes partisan compromise between Republicans and Democrats may avoid extreme partisan bias in favor of one of these parties, but at the cost of sacrificing the interest of the largest plurality of the populace that now describe themselves as being unaffiliated or independent rather than aligned with either of the two major parties. Such a plan places incumbent and political party self-interest above the public interest as expressly established by the state constitution. In this redistricting cycle alone, at least five state supreme courts have already invalidated redistricting plans drawn by bipartisan commissions as violating the state’s constitution.[81] The only apparent reason for these plans not complying with state law was the bipartisan commission’s effort to achieve a plan that pleased the incumbents of both parties. In holding the redistricting plans of the Pennsylvania Legislative Reapportionment Board invalid, the Pennsylvania Supreme Court, in January, 2012, found that the commission “could have easily achieved a substantially greater fidelity to the (state constitutional) mandates” of compactness, contiguity, and integrity of political subdivisions.[82]

Independent commissions—The only state commission classified by me as independent is the California Citizens Redistricting Commission. This commission was approved in 2008 through initiative and referendum to redraw the state’s legislative, congressional and board of equalization districts in 2011 and beyond.[83] A complex commissioner selection process[84] is designed “to produce a commission that is independent from legislative influence and reasonably representative of this State’s diversity.”[85] Each of the final plans must be approved by the vote of at least nine members of the 14 member commission, including at least three of the five members registered with each party and at least three of the four members not registered with one of the two major parties.[86]

Pundits and critics of the California commission described the commissioner selection process as “Rube Goldberg-like” and the requirement of at least three affirmative votes from commission members affiliated with each political party to approve each plan as unworkable.[87] Many predicted disaster. However, the redistricting process and redistricting plans adopted by the California Citizens Redistricting Commission in 2011 have generally received very good grades.[88] It held over 30 public hearings across the state. The commission approved three of the redistricting plans by a vote of 14-1. A vote of 13-2 approved the congressional plan. All four plans won the required approval from a majority of each category of commission members. The districts in the congressional and state legislative plans are visibly more compact, more clearly follow geographical and communities’ lines, and are devoid of obvious efforts at retaliation against any particular incumbent than in past legislative-drawn plans.[89] Subsequently, the commission’s final plans were submitted and received preclearance under Section 5 of the United States Voting Rights Act.[90]

Republicans have split about the outcome.[91] Some Republicans[92] filed legal challenges in state court[93] to two of the commission’s redistricting plans and also sought to overcome the commission’s senate plan through a referendum. On September 16, 2011, the California Supreme Court unanimously denied the challenges to the commission’s congressional and senate plans.[94] A similar lawsuit in federal court was dismissed by that court.[95] On January 27, 2012, the California Supreme Court unanimously ruled that even if the referendum to overturn the commission’s senate plan was certified for the statewide ballot, the 2012 elections would occur under the commission’s plan because “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.”[96]

Part IV
City redistricting commissions

I was surprised to find that there apparently is no compilation of the cities in this country that use redistricting commissions. Even the National League of Cities does not maintain this information. Therefore, I surveyed the 50 largest cities through use of city websites, news stories, and telephone interviews to determine the cities that use a redistricting commission and the structure of those commissions. The following is based on that survey.

Some cities continue to elect their city council at-large. Five of the 50 largest cities elect all members on the city council at-large from the city as a whole.[97] Twelve of the 50 elect part of the council members at-large from the city as a whole or from “super districts,” but also elect part of the council members from single-member districts.[98] Therefore, 45 of the largest cities must redistrict as necessary (usually once per decade unless required after an annexation) to equalize the number of persons in each election district. Most cities furnish a map of the existing districts on the city website or a map is available from media sources.[99]

Of these 45 cities that must periodically redistrict, the overwhelming majority allow the city council to draw its own districts. Of the 50 largest cities, only five have autonomous redistricting commissions. These commissions are specifically discussed below. Also as discussed below, several other cities have utilized advisory commissions at least during the latest redistricting cycle.

Cities with redistricting commissions generally utilize a local form of one of the same types of redistricting commissions that are found nationwide at the state level. However, cities generally are home-rule jurisdictions; each with its own unique charter allowing it to adopt a redistricting structure, process, or criteria different from its neighboring cities and without any need for state legislation to authorize it to do so.[100] As a result, whether a state has a commission is not necessarily indicative of whether a city within the state uses a commission or of the structure of the city commission. Since cities also are geographically smaller than states and have limited jurisdiction and authority, most state models are useable at the local level only if modified. Moreover, in most cities, members of the city council are selected in nonpartisan elections so the use of bipartisan commissions is problematic.

Racial and ethnic minorities generally are present in a larger proportion in urban areas than in a state as a whole. Given even a modicum of polarized voting, the ability of these minority voters to elect a person or persons of their choice to a city council is affected by the composition of the election districts. Compliance with the U.S. Voting Rights Act is necessary even in jurisdictions not covered by Section 5 of the Act. It is not surprising therefore that the consideration of the rights of these minority voters often dominates the drawing of city council district lines. This task is made more difficult in the context of multiracial cities in which two or more significant minority groups advocate for conflicting district lines. With the addition of the desires of other community groups (such as neighborhoods, religious groups, or organizations like gay and lesbian voters) and incumbents, the municipal redistricting process can be complex and tumultuous.

The Dallas Morning News described its city’s redistricting plan as bearing “all the marks of a map gerrymandered with sprawling, snakelike boundaries aimed at keeping incumbents in place.”[101] The final redistricting plans of other cities contain similar misshapen districts. It is impossible in this article to even speculate about the extent to which the district lines in any specific city have been shaped by political and personal self-interest.[102] However, such self-interest is clearly perceived as playing a significant role when the city council draws its own districts.[103]

By contrast, autonomous commissions independent of the city council have generally won public plaudits. For example, the result in the City of San Diego has been openly applauded, with the commission described in 2011 as “behaving honorably” and the city plan described as “admirable.”[104] In Minneapolis, the proposal for an independent commission was adopted in 2010 because the earlier bipartisan commission (adopted in 1980) “seems to invite partisan influence and cronyism in drawing district lines.”[105]

The following is a brief discussion of cities that have redistricting commissions.

Advisory commission—Many cities and other local governments that retain authority over redistricting from time to time use a commission to advise on redistricting and propose a map.[106] Most of these commissions may be created without the need for any city charter amendment. Like other local commissions on a variety of issues, they serve a useful function by conducting frequent public hearings that might otherwise be difficult for the city council to hold given the council’s other duties. However, as indicated in Part I of this article, such public hearings rarely determine redistricting. This ineffectiveness of public hearings can be expected to increase if the hearings are conducted by an advisory group rather than the city council itself and public testimony must be communicated to the council through a third party. As a result, an organization (such as a neighborhood committee) will often directly lobby the council members in favor of a particular district configuration.

The Dallas Charter requires creation of an advisory commission. However, The Dallas Morning News was very critical of the entire 2011 process, including the work of the commission. With regard to the commission, the paper observed “The redistricting commission must be depoliticized by changing its makeup. Because each council member makes one appointment, commissioners are essentially representing particular districts—instead of considering the entire city’s best interests.” [107] In regard to the council incumbents, the newspaper lamented, “Nothing in the law says incumbent politicians have a right to protect their seats. In fact, incumbency isn’t even supposed to be considered.”[108]

Often the advisory commission produces a map that embeds the political or personal interests preferred by a majority of the city council since it was the members of the council that appointed them. Rather than wait to adopt a different plan, the members of the city council simply interact with the members of the advisory commission to influence the commission to produce a politically satisfactory map. An even greater probability of council member influence exists when the city staff is utilized to draw a redistricting map. Often the city staff is given the unenviable task of balancing the personal (mostly private) requests of the council members against the requests of other members and the legal requirements for redistricting.

The reverse may also occur—e.g., members of the city council may find themselves in conflict with the members of the advisory commission over district configurations. Often the reason is politics. Appointments to the commission are usually driven by political considerations and are frequently seen by the city council as a means of granting favors to individuals or groups. On the other hand, members of the commission are often themselves politically ambitious. They may see membership on the commission as an opportunity for public exposure, not solely for public service. The result can be pure showmanship.[109]

A variation of the advisory commission approach is to make the advisory commission’s plan final if the city council does not adopt a redistricting plan in a specified length of time after receiving the one proposed by the advisory commission. Such an approach is similar to the process used in Iowa and Ohio and proposed in New York State. In Baltimore, the mayor proposes a redistricting plan that becomes final unless the city council adopts a different plan within 60 days of receiving the mayor’s plan.[110]

None of these variations of an advisory commission approach prevent political or personal self-interests from prevailing over the public interest. In fact, they often encourage politics. There are many avenues through which political considerations can permeate the advisory commission process. Ultimately, of course, the advisory commission’s dominant characteristic is that it is only advisory; it may recommend a map to the city council, however, the city council is free to make changes in the recommended map or to substitute another plan entirely.

Autonomous commissions appointed by the city council or other local officials—The City and County of San Francisco uses an autonomous commission (i.e. The Redistricting Task Force) to redraw city council districts, but allows the mayor, board of supervisors, and city elections commission to appoint the members of the commission.[111] In the views of some media, appointments to the commission are heavily influenced by “the power circles of business, politics, labor and nonprofit groups.”[112] In 2011, the appointing authorities agreed on certain minimum criterion for appointments, including that an appointee could not be currently a “direct hire” of an official of the City and County of San Francisco. However, such ad hoc criteria can be crafted to sound meaningful but to have only a limited effect on the appointing authorities’ discretion and do little or nothing to prevent commission members being affected by political considerations.

Bipartisan commissions—Two cities out of the 50 largest have autonomous bipartisan commissions. Both also have partisan elections.[113]

The City of New York charter provides for creation of an autonomous Districting Commission to draw the city council districts. The members of the commission are appointed by the council delegation of the major parties (five from the largest party; three from the second major party) and the mayor (7 appointments) so that “individuals enrolled in a single political party shall not be a majority of the total number of members of the commission.”[114] No city officials or employees, or registered lobbyists or their employees, or elected officials may serve on the commission. The mayor is responsible for screening potential commission members to assure that racial and language minorities covered by the U.S. Voting Rights Act are represented on the commission in proportion to their population in the city.

The City of New York has used this structure for redistricting since the 1990s. It was adopted after a federal court held that the City’s governing board needed to represent districts of approximately equal population instead of solely political units, such as boroughs.[115] The current charter retains some of this prior representation of political subdivisions by directing that council delegation appointees must come from different boroughs. Also, it requires that neighborhoods and communities with established ties of common interest and association should be kept intact. Districts are to be compact (no more than twice as long as wide), contiguous (at least connected by a tunnel, etc.), and are not to cross county or borough lines or be drawn so as to divide concentrations of voters enrolled in the same party.[116]

The New York Districting Commission submits its plan to the city council, which by majority vote within three weeks may object to the plan. If the city council objects to this initial commission plan, it returns the plan along with its objections to the commission. The commission prepares a revised plan. However, the commission remains responsible for drawing and submitting the final plan for redistricting of the city council.

The council elections in the City of Tulsa, Oklahoma are also partisan. The city’s nine council districts are drawn by an autonomous commission, the Electoral District Commission. The Commission consists of three members: one appointed by the mayor (with the approval of the council) and one appointed by each of the two largest political parties.[117] No elected official is eligible to serve on the commission. The presiding judge of the district court appoints the members if these appointing authorities do not do so by January 31st every ten years. Any registered voter in Tulsa may challenge the commission’s redistricting plan in the district court.

Independent commissions—There are several existing examples of city redistricting commissions that are autonomous and are not selected by the mayor, city council or the political parties.

In 1992, the City of San Diego adopted amendments to its charter that set up an autonomous Redistricting Commission. Appointments to the commission are made by municipal judges[118] and shall include:

“women and men who will give the Redistricting Commission geographic, social and ethnic diversity, and who, in the opinion of the appointing authority, have a high degree of competency to carry out the responsibilities of the Commission. The members shall include individuals with a demonstrated capacity to serve with impartiality in a non-partisan role.”[119]

The city council can become the appointing authority if the municipal judges refuse to serve. This has never happened. No redistricting plan may be drawn for the purpose of “advantaging or protecting incumbents.”[120]

The City of Minneapolis charter gives authority for the redistricting of city wards to the Minneapolis Charter Commission.[121] Under state law, each city in Minnesota may have such a commission. The members of a charter commission are appointed by the chief judge of the local judicial district. The decision in 2010 to vest redistricting authority for the City of Minneapolis in this separate board was made expressly for the purpose of reducing the effect of politics on the city’s redistricting process.[122] The neighboring city of St. Paul also vests its charter commission with similar authority.[123] However, not all cities in Minnesota use a charter commission for this purpose. Interestingly, before 2010, redistricting for the City of Minneapolis was done by a special bipartisan commission with two of its members appointed by the city council and the other members selected by the charter commission from lists submitted by the two major parties.[124] In 2011-2012, the Minneapolis Charter Commission unanimously approved a redistricting plan for the city. There were no court challenges.

Part V
The argument for an independent redistricting commission for cities

Discerning with certainty the best method for lessening partisan and personal self-interest on a city’s redistricting process is problematic for at least three reasons. First, redistricting occurs basically only once every ten years. There are few data points for study. Second, every experience in every state or local jurisdiction is unique. The diversity in political, racial and ethnic makeup among jurisdictions can make an enormous difference. Third, redistricting generally occurs suddenly and simultaneously at every level of government—making a comprehensive study difficult.

Nevertheless, several lessons are clear. Redistricting by officials that must seek election in those same districts has shown itself to be unsatisfactory at the state and city level. Officer or backup commissions only concentrate the authority in fewer persons while being subject to the same or greater political influence. Bipartisan commissions have, in some circumstances, reduced partisanship, but only by increasing incumbent protection at the expense of express public interest guidelines. The search for an effective reform continues.

Three recent trends are identifiable in redistricting reform. Although they are most obvious at the state level, each trend can be applied to city redistricting. One, patterned generally after the process in Iowa, envisions a redistricting plan drawn by an outside body (e.g., a nonpolitical staff or commission) that takes effect unless rejected or changed by the state or local legislative body.[125] A second trend (e.g. Florida) is toward leaving the redistricting process to the legislature or city council, but imposing strict limitations on any plan adopted by that body, such as a requirement that a redistricting plan may not be drawn with the intent of favoring or disfavoring any political party or individual.[126] This approach depends for effectiveness on an engaged judiciary.[127] A third trend (e.g. the State of California and the City of San Diego) is toward an independent citizen commission designed to remove politicians and self-interest from the redistricting process.

Redistricting need not be quintessentially a political process. City election districts can be drawn on the basis of criteria clearly established by the city charter as being in the public interest; not on the basis of politics. However, this result is only achievable by separating the redistricting process as much as possible from politicians and political influence. As this article shows, there are many examples of how states and cities have attempted to limit the effect of these interests. Some limitations have worked better than others. There are lessons to be learned from each example. Ultimately, I believe that an independent commission works best.

An independent commission addresses every problem explained in Part I of this article. An autonomous, apolitical commission on which the members are competent, impartial, engaged and diverse is much better able to act in accordance with the legal and objective guidelines of redistricting than any incumbent politician that must seek election from those districts, or a commission beholding to the council or politically ambitious on its own part. Once the redistricting process is controlled by the distorting prism of personal or partisan self-interest, the public interest is lost. In my opinion, the public does not need to accept the inevitability of this self-interest.

Part VI of this article examines how a city redistricting commission can be made independent of political self-interest by providing examples of how different jurisdictions have attempted to limit the effects of partisan and personal self-interest on the redistricting process by choosing a nonpolitical means of selecting the members of the commission, limiting those eligible for serving on the commission, limiting input from the city council or legislature, preventing the members of the commission from using their position for their own benefit, and establishing clear criteria for the commission to follow. The best requirements to include in a city charter for assuring the necessary independence will vary by jurisdiction. What one jurisdiction sees as overkill, may seem reasonable and appropriate by another.

Critics oppose independent commissions for several reasons. Some insist that the “pluralist” process of redistricting under influence by a legislative body is preferable to redistricting by an “insulated” commission.[128] Other writers suggest that redistricting reform should come by deferring the implementation of a redistricting plan, or requiring a public referendum on every redistricting plan.[129] Professor Bruce E. Cain offers some thoughtful analysis of an independent commission in his recent law journal article, but ultimately concludes that the best reform is through a bipartisan commission in which political parties bargain and compromise.[130] I disagree. Redistricting reform needs more emphasis on the public’s interest; not more incentives for partisan compromise or incumbent protection.

Critics suggest that “ordinary citizens” lack the same capability as politicians for understanding the complexities of redistricting.[131] My 35 years of experience tells me otherwise. I think that these critics underestimate the ability of persons on an independent commission to make informed decisions. In California, ProPublica released a story[132] online that characterized the members of the state’s citizen redistricting commission as “amateurs” and accused them of being influenced by a “stealth” campaign of public testimony organized by the Democratic Party.[133] In rebuttal to the ProPublica article, a Republican member of the California Commission pointed out that the commission “is a diverse group of highly educated and experienced individuals including small-business owners, educators, former city council members, a former mayor, lawyers, consultants, an urban planner, an architect—and myself, a former director of the U.S. Census Bureau” and that “the commission was well aware that incumbent politicians would try to circumvent an open and transparent process to benefit their own interests.”[134] There are many smart, engaged Americans that are unwilling to become involved in “politics,” but want to contribute to our democracy. An independent citizen redistricting commission provides that opportunity.

One of the greatest assets of an independent commission is its ability to react responsibly to public comment without first weighing political considerations because the members of the commission have no personal or political agenda to defend in the drawing of districts. Often when presented with an unexpected proposal for changing a tentative plan, a city council may be resistant because any change from the tentative plan would reopen the political compromises or accommodations that had made the tentative plan possible. An independent commission should not have this reaction. The willingness of an independent commission to listen and try to find a solution is important in winning the public trust.[135]

There is another possible source of partisan gaming of the system. Redistricting consultants should be apolitical, but they mostly are not. Consulting firms nationwide are organized primarily with a tie to one political group or another because they are accustomed to seeking employment in an environment in which the hiring decision is made at least partially on the basis of partisanship. However, dependency on consultants for redistricting is lessening. As recognized recently by the Florida Supreme Court, technology now makes it possible for a court to assess redistricting plans on the basis of actual data rather than on the basis of data filtered through findings of fact or an expert witness.[136] The same is true of a commission.[137] Technology may make the redistricting consultant less important or even obsolete by 2021. At least it may hopefully make the need for objective consultants greater.[138]

Even jurisdictions with independent commissions must be alert to the effort of politicians to game the process. Commission members and citizens both must be alert. The alleged effort of the Democratic Party to orchestrate public testimony to sway the California Commission is discussed above. In Arizona, the Republican governor attempted to remove the chairman (and only unaffiliated member) of the redistricting commission because the governor disagreed with her votes.[139] In San Diego, a city council member suggested that the independent commission track the boundaries of the city’s land-use “community plans” for its election districts. These plans had been drawn by the city council and the suggestion indirectly put the council back in the election district line-drawing business. The suggestion was dropped amidst claims that it ran afoul of the reason that the citizens of San Diego adopted an independent commission and “effectively leaves the fox to guard the chicken coop. ….”[140]

Part VI
Designing an independent redistricting commission for cities

For a redistricting commission to be effective both in producing redistricting plans in the public interest and in winning public trust, it must be immunized against the problems discussed in Part I. It must be free of the partisan and personal self-interests that affect the integrity of the redistricting process and final plans. The extent to which a redistricting commission is independent of the partisan and personal self-interests present in redistricting by a city council can be affected by several factors. The existing state and city commissions provide examples for how this independence can be achieved.

Who selects the commission—The initial step toward designing an independent commission is to find a truly fair and apolitical means of choosing the members of the commission. If political or party officials have this responsibility (as occurs with most bipartisan commissions), their natural tendency is to select someone because the person is strongly partisan, not because the person is nonpolitical. This increases the partisanship on the commission.

In an obvious effort to ameliorate this tendency and effect, several states use the presumed impartiality of the judiciary as a means of screening potential members of a bipartisan commission or as a check on the partisanship of these commissions. For example, several states use the judiciary to select a deciding vote and chairman for a commission, especially when the other members of the commission cannot agree on the additional commission member. Arizona has such a provision, but also gives the task of assembling pools of potential appointees (from which the legislative leaders chose) to the state commission on appellate appointments.[141] In Alaska and Colorado the state judiciary actually picks some members of the redistricting commission.[142] Some state constitutions give the state’s supreme court original jurisdiction to consider redistricting plans, or even mandate that a state’s redistricting plan must undergo review by the state’s highest court.[143] In Missouri, a panel of six justices from the state courts of appeal is appointed by the legislature to draw a plan if the state’s bipartisan commission fails to do so. Cities lack the authority to give a state court this authority or to compel members of the state judiciary to serve in a capacity in the city’s redistricting process. However, the City of San Diego has attempted a similar effect by providing that the city’s senior municipal judges would select the members of its redistricting commission. The city used retired municipal judges in 2011.[144]

By analogy to the California independent commission[145] selection process, a city auditor or a panel of certified professionals may be viable tools for screening applicants at the city level and grouping qualified applicants into subpools. In Austin, Texas, a recently proposed amendment to the city charter (Proposition 3 on the November 6, 2012, ballot) follows this route.[146] However, for cities that are nonpartisan (like Austin), qualified applicants must be grouped according to some criteria other than partisan affiliation. Grouping qualified applicants according to geography or residence in pre-existing election districts (county or city) may be useable.[147]

Once a balanced pool or pools of qualified applicants exists, the actual commission members must be selected from these pools. Random selection of at least the initial members of the commission equally from these applicant pools avoids the possibility of politics or personal self-interest affecting the choice. Several existing jurisdictions provide models for allowing these initial members of a commission to select the other members of the commission.[148] These further choices are made from the pools so that the jurisdiction’s diversity in race, ethnicity, gender, geography, etc. is reflected in the final makeup of the city commission.

Who is eligible to serve on the commission—Avoiding political influence means limiting membership on a redistricting commission to competent persons interested in governance but unlikely to be driven by either their own political agenda or one set by other politicians. The following are criteria utilized today by cities (or adapted from state requirements) to define the qualifications of a person who can serve on a city redistricting commission:[149]

• A person must be a United States Citizen;

• A person must be a registered voter and have been registered for a specified number of years;

• A person must have voted in a prescribed number of recent city elections;

• A person must have demonstrated an ability to serve with integrity and impartiality;

• A person must have a high degree of competency to carry out the responsibilities of the commission;

• A person must have a flexible schedule for attending commission meetings;

• A person must have a general knowledge of the city and its neighborhoods;

• A person is ineligible if he or she is, or has been an elected official, or a candidate for any elected office;

• A person is ineligible if he or she is, or has been a registered lobbyist;

• A person is ineligible if he or she is, or has been an appointed official, or served as a paid staff member or consultant for a political party or city official;

• A person is ineligible if he or she has contributed more than a specified amount to a candidate for city office;

• A person is ineligible if any member of his or her immediate family would be ineligible for one of the four reasons immediately preceding this one.

The tougher the criteria for eligibility, the harder the potential task may be for finding persons to serve on a commission. An effective outreach program is essential for attracting potential applicants, including those in underserved communities.

Precedent exists outside this country for similar restrictions on eligibility for a redistricting commission. For example, British law limits persons who can serve on the United Kingdom Electoral Commission. A person is ineligible for appointment if he or she has held office in a political party, been employed by a political party, or made a sizeable donation to a political party within ten years of the appointment.[150]

Although some form of all of these limits on eligibility now exist at a state or municipal level, it is possible that one or more of these exclusions could be challenged under the First or Fourteenth Amendments to the U.S. Constitution. Federal courts have frowned on such limits when used to define who may vote in federal, state or local elections[151] or be employed by government. On the other hand, courts have recognized that the people have the power generally to prescribe the qualifications of its elected and appointed officers and the manner in which they shall be chosen[152] and that such limits (especially when approved by a vote of the persons in a jurisdiction) “will not be overturned … unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the (people’s) actions were irrational.”[153]

Criteria for selecting members of a commission—Mandating the selection of a city’s commission members to assure diversity is important and common. The charters of the City of San Diego and City of New York require such diversity for the commissions in those cities. The same is true for the California citizens commission, which is expected to reflect the racial, ethnic, geographic, gender and political diversity of the state.

While racial, ethnic and political diversity are important, geographical diversity may also be important. A city could require that a commission include a member from each existing city district or other clearly delineated geographic area (e.g. county districts or boroughs). For example, in New York City, the commission must have at least one person from each borough. In San Jose, the city’s advisory commission on redistricting must have one member from each existing council district.

The most important criteria for selecting members of a commission are competency, impartiality and integrity. Although an independent commission may be balanced among Democrats, Republicans, and unaffiliated (independent) voters in a jurisdiction with partisan elections, this partisan requirement should not lead to the choice of persons with strongly held partisan feelings. One of the most serious problems with bipartisan commissions is that the members are selected by political leaders as soldiers for and representatives of their party in the redistricting process. Members of an independent commission should be selected with the objective of having a diverse commission of informed and engaged persons willing to follow only the express criteria.

What provisions exist for participation by the city council—In designing an independent commission, one consideration must be the extent of formal input (if any) that the members of the city council should have in the selection process. Although it is essential that the members of the commission must not be embroiled in city politics, some formal role for members of the city council may be appropriate. The provision for the California state commission provides one alternative; the leaders of the legislature (each major party) are entitled to eliminate a total of eight persons from each of the subpools of qualified applicants before the initial members of the commission are selected by random from those subpools. At the same time, however, the members of the panel selecting the persons in the subpools “shall not communicate with any State Board of Equalization member, Senator, Assembly Member, congressional member, or their representatives, about any matter related to the nomination process or applicants prior to the presentation by the panel of the pool of recommended applicants….”[154] Most city charter and state redistricting provisions are silent on the issue of communications from the city council to the persons responsible for the selection process. The charter amendment being considered in Austin does not give the city council any right to strike persons from the subpools of applicants.

Once the commission is selected, the issue becomes the extent to which communications that should be allowed between any member of the city council and any member of the commission outside of a public hearing. Most city charter and constitutional provisions are silent on this point. However, provisions for the California commission indicate that “Commission members and staff may not communicate with or receive communications about redistricting matters from anyone outside of a public hearing.”[155] This prohibition does not, of course, prevent such communications between members of the commission, commission staff, consultants, etc. if otherwise allowed by law.

What restrictions exist on the commission members after serving—To assure fairness and prevent the influence of politics on the decision-making of the commission, it is important to avoid allowing a member of the commission to possibly use redistricting to further his or her own political ambitions or to be tempted with promises from affected politicians or political groups. A means for achieving this goal is to restrict what a member can do after serving on the redistricting commission.

Several states[156] and cities impose such limitations. For example, the charter for the City of San Diego prohibits a member of the commission from seeking city public office for five years. Any such limitation on the future activities of a member of the commission is also likely to discourage a person with political ambitions from applying to serve on the commission.[157]

What legal criteria are used in redistricting—As indicated above in Part II, the public interest for redrawing city council district lines should be established through specific legal criteria set in the city charter or controlling state or federal law. Much has been written about these criteria, at least at the state level.[158] Therefore, this article does not dwell on these criteria.

It should be noted, however, that although federal legal constraints on redistricting automatically take priority[159] many state constitutional and city charter provisions on redistricting expressly recognize the preeminence of these overriding legal constraints.[160] Although legally unnecessary, this recognition of the overriding federal law or constitutional principles in city charters is desirable. However, expressly providing similar legal standards in a charter itself may have unintended consequences or expand the protection beyond what is available under federal law.[161]

Many state constitutions or city charters also impose other criteria that must be followed in redistricting. The most common requirements are that districts (to the extent possible subject to the overriding federal requirements) be compact[162] and contiguous and recognize the integrity of certain units of local governments.[163] Some city charters require that a redrawing of city council districts must recognize or maintain the integrity of local neighborhoods and communities of interest.[164]

These criteria are sometimes at odds.[165] This is especially true of a requirement for compactness and the duty imposed by federal law under the Voting Rights Act to protect minority voting rights. This is a significant potential problem for cities because many have substantial minority populations. A focus primarily on compactness can cause the creation of urban districts that pack minority voters together in violation of federal law. The federal law prevails. Any commission must have competent, objective legal advice on complying with federal law, especially the Voting Rights Act.

Applicable charter provisions should also expressly limit the possibility of political influence on the map-drawing process. There are several examples of how jurisdictions have tried to achieve this result. The statute implementing the citizen commission in California prohibits the commission from considering the residence of any incumbent or candidate for office during the map drawing process.[166] This type of limitation appears in several redistricting provisions.[167] A third tact is shown in the charter of San Diego. It prohibits a redistricting plan from being drawn to advantage or protect an incumbent.[168] The three approaches are not exclusive of each other.

An independent commission is an effective means of dealing with the dilemma of using election data and incumbent residences because the commission members are apolitical. Moreover, the inevitability of a commission member having at least some general knowledge of some a politicians’ residence does not necessarily mean that that knowledge is used to draw a district for the advantage or disadvantage of that incumbent.

It is unwise, however, to attempt to prevent all use of election data. A determination on the effect of any proposed redistricting plan on racial and ethnic minorities protected under the Voting Rights Act requires on a functional analysis of voter cohesion, the degree of racial polarization in past elections, and the ability in a redistricting plan of racial and language minority voters to elect the person of their choice. Such an analysis depends on the examination of endogenous and exogenous election results.

It also is problematic to mandate that districts be drawn to be competitive. Such an objective is not clearly subject to definition, while at the same time it is an invitation to gerrymander district shapes.

How open and transparent is the process—Provisions in a city charter or state constitution often provide that the redistricting process must be public. A truly open and transparent process means much more than public hearings and final action in an open meeting. It also means a process in which deliberations and the redistricting dilemmas faced by commission members are public as well. Technology makes the possibility of public awareness of and participation in redistricting far greater today than in the past. Means are available for timely notifying the public of meetings, the agenda for those meetings, and the results of those meetings. Moreover, there is technology that makes a commission meeting fully available to persons not present at the meeting and makes it possible for these persons to actually participate in the proceedings. This technology should be utilized fully. In ten years (the next time redistricting is certain to come around again), this technology may allow for even greater public participation.

Census data can be readily available in a form that permits members of the public to construct possible redistricting plans (whole or partial) for consideration by a commission.[169] Some academics have suggested that allowing members of the public to draw maps and submit those to the legislative body or commission is a proper route for redistricting reform.[170] While I think such public input is appropriate, I disagree that it is a solution. Over the past 35 years I have seen hundreds of redistricting maps submitted by members of the public to a court, legislature, or city council. Since few persons have the time or technical expertise to draw redistricting plans, the public maps have generally come from activist organizations dealing in their own special interest for a part of the jurisdiction or as a part of some academic exercise, such as maps produced by students or as a result of a map drawing competition. Most such maps are deficient in some way. Moreover, neither group has standing to represent the broader public. Such offerings should be encouraged, but there must be an arbiter that puts the law and all forms of public input together and is accountable for the result. An independent commission serves this purpose.

One of the greatest assets of an independent commission is its ability to react responsibly to public comment without first weighing political considerations. Therefore, of equal or greater importance than the necessary public hearings is the opportunity for persons and organizations to specifically respond meaningfully to a commission’s draft plans. Such an opportunity must be offered many times through the repeated dissemination of maps online, and by print as the drafts are changed in response to public comment. Public deliberation along with a real time visual display of the effects of moving of census geographic units among districts is not only technologically possible, but increasingly important for building public trust.

As mentioned above, drawing election districts with equal population is a zero-sum process. No plan pleases absolutely everyone. Under such circumstances, making the process fair and open is as critical to winning trust from a skeptical public or activist organization as the specifics of the final plan itself. An independent commission and the smart use of technology make this possible.

Conclusion

The voters of this country are increasingly skeptical and discouraged about a political system that seems trapped in a mindless gridlock. The largest plurality of voters now denies affiliation with either of the two major political parties. Yet, when redistricting scholars write about reform, they generally focus on how best to achieve political “fairness” between the Democrats and Republicans. This is a narrow and wrongheaded view that inspires gridlock and entrenches these two parties and their affiliated incumbents. Reapportionment should be a periodic process that changes the boundaries of voting districts to reflect population changes and does so in accordance with express requirements that define the public interest. Nothing more! No political party or group, individual or incumbent should be allowed to use the process to further their own self-interest.

Redistricting through an autonomous commission is a step in the right direction, but not enough alone to eliminate political and personal self-interest from the process. The autonomous commission must also be independent of such self-interest. An independent commission provides the best hope for protecting the public interest and eliminating or controlling the influence of such self-interest in redistricting. Part VI of this article identifies the key criteria for achieving this independence.

Critics of an independent commission mistrust the general public and think that only politicians and their partisan supporters and consultants know how best to redistrict. History has shown that entrusting redistricting to the politicians elected from those districts, or their surrogate commissions, has been a mistake.

State legislatures and city councils have generally been reluctant to willingly give up authority over redistricting. The changes in San Diego and Minneapolis came only after intense public and media campaigns aimed at eliminating political self-interest from the redistricting process. Often such campaigns are not enough. Sometimes, when available, voters must effectively cut a self-interested city council out of the approval process through initiative and referendum amendment of the city charter.[171] This alternative must remain as a viable option for change.

This article focuses on cities because few writers have done so previously and because cities remain a fertile ground for adopting redistricting reforms. This article has attempted to not only show that independent redistricting commissions are the best alternative to redistricting by a city council, but also how such a commission can be achieved through a charter provision that carefully delineates who appoints the members of the commission, who is eligible to serve on the commission, how members of the commission should be selected, what future restrictions apply to anyone that serves on the commission, what criteria should govern the commission’s drawing of election district boundaries, and the need for an open and transparent redistricting process. Any charter provision must be tightly drawn both to prevent the commission’s members from being tempted by political or personal interests and the influence of political parties or factions, or incumbents on the process. Many different examples of such provisions exist at the state and local level to provide models, but there is no single existing version that I suggest should be taken and enacted verbatim. The specifics of each charter provision must be designed specifically for each city. However, it is important that any selection of wording from among these different versions be guided by the primary objective of making the commission independent of all self-serving personal and political interests.

Steve Bickerstaff wishes to thank Professors Patrick Wooley and Joseph Fishkin of the UT School of Law for their thoughtful recommendations during the preparation of this article.

[1] State legislatures and local governing boards (e.g. city councils) are discussed together throughout much of this article. Both constitute the elected legislative bodies for their respective state or local jurisdictions. The basic problem of allowing elected officials to draw the districts from which they must seek election is the same or similar at both levels of government. Some differences are discussed later in this article.

[2] Another deficiency in the understanding of redistricting commissions is the failure to clearly distinguish between autonomous “bipartisan commissions” and truly “independent commissions” at the state level. What some observers and politicians herald as independent commissions are really autonomous bipartisan commissions designed to reduce partisan conflicts and to increase the likelihood of compromise between the two major political parties. Bipartisan Commissions are autonomous of the legislature (or city council). Thus they are sometimes considered “independent.” However, as discussed herein, these bipartisan commissions largely remain under the control or influence of politicians. The public loses with a bipartisan commission because, even if partisan discrimination is lessened, this commission often entrenches the major parties through incumbent protection plans that forsake the public interest for the self-interest of the elected officials and their political affiliates. Already in this redistricting cycle, state supreme courts in at least five of the ten states with autonomous bipartisan commissions have struck down one or more of the commission’s redistricting plans. Moreover, these bipartisan commissions operate to favor the interests of Republicans and Democrats at a time when most voters claim to be unaligned with either of these two parties. The goal of redistricting reform should not only be to reduce or to eliminate the direct influence of lawmakers on the redistricting process, but to take self-interest and bias out of a process in which they have no legitimate role. This is the meaning and goal of “independent commission” as used in this article.

[3] Some election law scholars urge that this is not a new view. I agree. Others cynically see it as a naive “good government reform.” I do not think that this characterization does justice to the view. This view has been instrumental in the public movement behind adoption of independent commissions and other reforms at the state and local levels. However, law journals and scholars have not given it the rigorous review and attention it deserves. This article sets out to correct this deficiency because, after many years in the political thicket, I truly believe this view is the best.

[4] Over the past 36 years I have represented over 100 jurisdictions on redistricting matters, including during the redistricting process, or before the U.S. Department of Justice, or in state or federal courts. These jurisdictions include the State of Texas (in three different decades) and various local governments (cities, counties, school districts, community colleges and special districts) in Texas and elsewhere. The electoral systems of these jurisdictions have included wholly at-large, wholly single-member and hybrid or mixed (partially at-large) election structures. The observations in this part of the paper on the problems of allowing officials to draw the boundaries of the districts from which they are elected are derived largely from my own experience.

[5] U. S. Constitution, Art I, Section 2. See, Wesberry v. Sanders, 376 U.S. 1 (1964). Initially, the U.S. House of Representatives met this constitutional mandate by adding members to that legislative body as population changed (e.g. slaves counted as whole persons in the census) and new states were added to the union. When allowed by their state constitutions, many states did likewise with their state legislatures as population changed. After the 1920 census, Congress deadlocked and failed to reapportion. When a reapportionment act finally was passed in 1929, it fixed the size of the House of Representatives permanently at 435 representatives. This meant that every ten years, each state might gain or lose representatives in Congress according to population changes shown in the census. To avoid the possibility of future political gridlocks over this shift of congressional seats among states, the Apportionment Act of 1929 fixed a methodology that automatically allocated the seats among the states.

[6] Although often used interchangeably, the words “apportionment” and “districting” are not synonymous. To apportion seats in a representative body is to allocate the seats among usually predefined, stable geographical areas or jurisdictions (e.g. states for seats in Congress; counties for seats in a state legislature). With the advent of the court-imposed rule of one person, one vote, states could no longer exclusively use political subdivision boundaries to define congressional, state or local election areas; thus the process of apportioning seats among political subdivisions gave way to the drawing of districts based on population. The periodic redrawing of these districts became redistricting.

[7] The state constitutions usually required that such reapportionment occur decennially. At least 48 states required reallocation of legislative seats at least every ten years. Reynolds v. Sims, 377 U.S. 533, 583 (1964). In Reynolds, Alabama had not redrawn its state legislative seats since 1901. Id.

[8] 377 U.S. at 566

[9] See, e.g., Bruce E. Cain, Redistricting Commissions: A Better Political Buffer? 121 Yale L.J. 1808 (2012), Heather Gerken, Getting from Here to There in Redistricting Reform, 5 Duke J. Const. L. & Policy 1 (2010); Symposium: Drawing Lines: The Future of Redistricting in America, 5 Duke J. Const. L. & Policy (2010); Steven Huefner, Don’t Just Make Redistricters More Acceptable To The People, Make Them The People, 5 Duke J. Const. L. & Policy (2010); David G. Oedel et al, Does the Introduction of Independent Redistricting Reduce Congressional Partisanship, 54 Vill. L. Rev. 57 (2009); Michael Kang, De-rigging Elections: Direct Democracy and the Future of Redistricting Reform, 84 Wash. U.L. Rev. 667 (2006); Adam Cox, Designing Redistricting Institutions, 5 Elec. L. J. 412 (2006); Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 644 (2002); Ryan P. Bates, Note, Congressional Authority to Require State Adoption of Independent Redistricting Commissions, 55 Duke L.J. 33, 338-39 (2005); Jeffrey C. Kubin, Note, The Case for Redistricting Commissions, 75 Tex. L. Rev. 837 (1997).

State legislatures and local governing boards (e.g. city councils) are discussed together throughout much of this article. Both constitute the elected legislative bodies for their respective state or local jurisdictions. The basic problem of allowing elected-officials to draw the districts from which they must seek election is the same or similar at both levels of government. Some differences are discussed later in this article.

[10] David Zahniser, “Panel Passes L.A. City Council Redistricting Plan,” Los Angeles Times (February 12, 2012). See, Fox, “Politics is at the Heart of Redistricting says L.A. Commission Chairman,” (February 21, 2012). (The link is no longer functional.)

[11] Hal Dardick, Kristen Mack and John Byrne, “New ward map from old politics,” Chicago Tribune (January 20, 2012). One explanation was: “There’s quite an unfortunate history of this on the council—a period in the 1980s known as the Council Wars, where a group of white aldermen led by ‘Fast’ Eddie Vrdolyak faced off against Mayor Harold Washington’s allies (who were mostly black, along with several reformist white aldermen from lakefront wards). Washington, of course, was Chicago’s first black mayor—it was also during this period that Barack Obama got his start as a community organizer. The Council Wars were resolved after a lengthy lawsuit (that ruled the initial 1980s map in violation of the VRA) in 1986.” Daily Kos Election (December 11, 2011).

[12] Editorial: “Council Should Learn from Flawed RedistrictingDallas Morning News (November 22, 2011). See, “Dallas redistricting process tainted by politics, backroom deal-making,” Dallas Morning News (September 12, 2011).

[13] City council districts were once more commonly called “wards.” Some cities, such as Chicago, continue to do so. I use the words interchangeably in this article.

[14] At one time, most states elected all congressmen statewide. The first effort by Congress to change this practice was in 1842, but some states refused to change. Even by the 1960s some states continued to elect at least some of their members of Congress statewide. In 1967, the practice of statewide elections in multiple representative states was ended by further national legislation. See, Tory Mast, “The History of Single-member Districts for Congress;” Wesberry v. Sanders, supra, note 5, 376 U.S. at 8. On many occasions, a legislature’s redrawing of congressional district boundaries may be seized as an opportunity for a member of the state’s legislature to exact revenge on a member of Congress, to barter for favors from members of Congress, or to design a congressional district in which he or she has an advantage in winning election to Congress. The periodic redrawing of congressional districts is the one time when members of the U.S. House of Representatives come to the state legislator “hat in hand.” General theories about “preserving state seniority in Congress” do not accurately describe the personal and partisan self-interest games that really dominate the redrawing of congressional districts.

[15] Congress in 1920 even failed to apportion seats among the states as expressly required by the U.S. Constitution. In Reynolds v. Sims, the court acknowledged that the spate of malapportionment cases filed and decided since 1962 “amply shows” that the problem of legislative malapportionment “is perceived to exist in a large number of states” and that the malapportionment in Alabama is “symptomatic of the seriousness of this problem in a number of states.” 377 U.S. at 556 and 569. See, Steve Bickerstaff, “Reapportionment by State Legislatures: A Guide for the 1980’s,” 34 Southwestern Law Journal 607 (1980) in which I discussed the effect of the Reynolds decision nationwide. See, e.g., Avery v. Midland County, 390 U.S. 474 (1968) (county election districts). During this time, many cities elected their officials at-large from the city as a whole and were reluctant to change. See, e.g. Wise v. Lipscomb, 437 U.S. 535 (1978). Cities were required to meet the one person, one vote standard. See, e.g. Board of Estimates of the City of New York v. Morris, 489 U.S. 688 (1989).

[16] Efforts were made in Congress to stay court proceedings or to relieve federal courts of the jurisdiction to review reapportionment enactments, but these efforts failed. R. McKay, Reapportionment: The Law and Politics of Equal Representation 6, (1965). By the end of the decade after Reynolds, every state had had to redraw the districts in at least one chamber of the state legislature. Generally this occurred only after court intervention. The Council of State Governments, Reapportionment in the Seventies 3, (1973). See, 18 The Book of the States, 1970-71, (1970); Sixty-Seventh Minn. State Senate v. Beens, 406 U.S. 198, n.10 (1972).

[17] Several writers have assumed that the objective of redistricting reform is to reduce the role of courts. E.g. Cain, supra, note 9 at 2011. I disagree. One of the few bright spots about redistricting in this country (especially by comparison to elsewhere in the world) is the willingness of state and federal courts to enforce standards intended to provide equal and effective representation. Removing politics from the redistricting process is likely to have the effect of reducing the need for court intervention, but reducing the role of courts is not the objective of reform.

[18] Local factions in nonpartisan city elections often divide largely along major political party lines even in a nonpartisan election. However, the political party itself is not a player in nonpartisan races.

[19] This interest may be evidenced in many ways in addition to the drawing of a district with friendly voters. For example, the interest in reelection may include the desire of the elected official to include certain businesses, donors or family within his or her district, to exclude potential opponents (even from the same political party or group) from the district, and to include certain high-profile institutions (e.g. universities, hospitals, etc.) within the district.

[20] Sometimes an incumbent does not want to keep his or her old district intact if the incumbent thinks that demographic trends are adverse to his or her interest and that changes to the district’s boundaries might improve his or her chances of reelection. Thus, an incumbent from the controlling political party or faction may want his or her old district redrawn to include voters that are more likely to support his or her reelection.

[21] See, e.g., White v. Regester, 412 U.S. 755 (1973).

[22] See, e.g., White v. Regester, 412 U.S. 755 (1973).

[23] The possible reasons why a district may not perform as expected are many. For example, although Tom DeLay was largely successful in his effort to defeat Democratic incumbent congressmen through a 2003 redrawing of congressional districts in Texas, he did so through tactics that ultimately caused him to resign from the U.S. House of Representatives in the middle of the 2006 general election campaign. As a result, a Democrat, Nick Lampson, won election in the congressional district drawn to reelect Tom DeLay. See, Bickerstaff, Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay, 98-108, 262-273 (University of Texas Press 2007).

[24] In a non-homogeneous jurisdiction, a controlling political party or faction may draw districts to minimize the overall success of another political group by identifying where this group’s most reliable voters reside and packing them together in as few districts as possible. This means that there are necessarily fewer of the political faction’s likely voters to be spread among the other districts, thereby increasing the likelihood that those districts can be drawn with a satisfactory majority of voters likely to support the controlling group’s candidates. The controlling faction can go further by combining disparate areas of friendly voters to increase its majority in a district. The result often is a plan in which the districts appear irregular in shape and meander through local political subdivisions and communities in a quest for like-minded voters that the controlling political party or faction or party thinks will maximize its success in future elections.

[25] The requirement that election districts be approximately equal in population has an enormous, but often overlooked effect. Some writers see the higher than average turnover rate among incumbents after a redistricting as evidence that gerrymanders do not work. See, Nathaniel Persily, “In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders,” 116 Harv. L. Rev.649, 663 (2002). Gerrymanders do not always produce the desired result, but the biggest factor at work is the unavoidable change needed to equalize population in districts statewide. A gerrymander’s purpose may be to keep a district safe for the incumbent, but there is only so much that can be accomplished even with the most outlandish of district shapes while operating in an equal population regime. For example in 2011 Republicans totally controlled both houses of the Texas Legislature, including 102 Republicans out of 150 total members of the Texas House of Representatives. The Republican majority could draw districts as they wished except as limited by law. Despite this power, Republicans could only squeeze approximately 85 safe Republican seats and keep the districts within even arguably legal bounds. Of course, even this effort was “a bit close to the wind” as the redistricting plan was found to violate Section 5 of the Voting Rights Act. State of Texas v. United States, Civil Action 11-303 (Final Judgment) (Aug. 28, 2012).

[26] At least one writer has urged that a “gerrymander” does not exist when district lines are manipulated to advance policy preferences. See, Huefner, supra, note 9 at 61n.102. This is a dangerous exception without defining what constitutes a “policy preference.” Local factions often coalesce around a policy, such as environmental protection or no new taxes. It is difficult to distinguish gerrymanders designed to advance such policies (e.g. protect an incumbent that votes consistent with the policy) from other disfavored line manipulations. I am not sure what Professor Huefner had in mind as a policy preference. Anyway, for purposes of this article, no manipulation of district lines would be deemed in the public interest unless required by federal law or expressly authorized by the city charter.

[27] One of the clearest examples of gerrymandering to serve both partisan and personal interests is found in the shape of Texas’ congressional districts drawn by a Republican- controlled legislature in 2003. See Bickerstaff, supra note 23. The Republican-controlled Texas Legislature both redrew congressional districts in an attempt to defeat all ten of the non-Hispanic white Democratic incumbent congressmen and to increase the reelection chances of a Republican incumbent that had narrowly prevailed in 2002 in a district with a majority Hispanic voters. Republican incumbents were asked to lessen the percentage of dependably friendly voters in their own districts to allow these objectives to be achieved. All did so, but with a cautious eye toward their own reelection.

[28] In a 2010 statement to my law school class, an experienced guest legislator explained that during a “redistricting session” the most commonly heard response from a member of the legislature to the legislative leadership’s request for an affirmative vote on appropriations or other substantive legislation is “First, Show Me the Map.” The practice of trading votes is common among members of a legislature or governing board, but seldom as prevalent as during redistricting.

[29] In a large city, the major activist and political organizations, and many of the members of the governing board “lawyer up” during a consequential redistricting. Moreover, many of the council members are themselves attorneys. The result is a sea of potentially conflicting legal opinions. Many of these legal opinions are based on the political alignment of an attorney or on the potential effect of a legal issue on an attorney’s employer. I have seen this occur many, many times at the state and local levels. For example, Republicans brought the general counsel of the National Republican Committee to Austin in 2001 in an ultimately unsuccessful attempt to persuade Republican members of the Texas Legislative Redistricting Board that certain proposed changes would not adversely affect Hispanic voters under the Voting Rights Act. Democrats similarly have relied on Washington counsel rather than accept nonpartisan legal advice from counsel retained for that purpose. Minority members of a legislature or local governing board often receive legal advice from lawyers associated with various minority organizations.

[30] See, Sam Issacharoff, supra, note 9 at 623-24. Professor Issacharoff, along with his frequent co-authors, Pam Karlan and Richard Phildes, is one of the most insightful writers on election law issues.

[31] See, e.g. Cain, supra, note 9 at 1840; Bickerstaff, supra, note 23 at 130; Opinion, “New York’s Redistricting Charade,” New York Times (Oct. 26, 2011). Dallas advisory commission member, Domingo Garcia, admitted that he had stopped attending the commission’s public hearings because as he said they were “tedious.” He began negotiating in private. Dallas Morning News Editorial: “Dallas redistricting process tainted by politics, backroom deal-making,” (September 12, 2011).

[32] See, Martinez v. Bush, 234 F.Supp.2d 1275, 1297 (S.D. Fla. 2002). See also, Robert Loevy, “Confessions of a Reapportionment Commissioner,” at 103 (Dec. 16, 2011); New York Times Editorial: “New York’s Redistricting Charade,” (October 26, 2002).

[33] See Bickerstaff, supra note 23, at 247-48. According to one Republican legislator, a major donor who urged an aggressively partisan redistricting plan in 2003 explained to the legislator that “Redistricting is not an issue, it is the issue.”

[34] See, e.g. LULAC v. Perry, 548 U. S. 399 (2006); Easley v. Cromartie 532 U.S. 234 (2001). See, Persily, supra, note 25 at 653.

[35] See, Simone Wilson, “Gays and Asians Fight for Own City Districts in Los Angeles Redistricting Battle,” LA Weekly (January 13, 2012).

[36] Simone Wilson, “The Five Most Furious Reactions to the Redistricting of Los Angeles,LA Weekly (January 31, 2012).

[37] See, e.g. supra, notes 10,11 and 12 and footnote 97, infra.

[38] See Perry v. Perez, 132 S.Ct. 934, 941 (2012);

[39] In re: Senate Joint Resolution of Legislative Apportionment 1176, 2012 WL 753122 at *9 (Fla.) (March 9, 2012)

[40] In Davis v. Bandemer, 478 U.S. 109 (1986), a majority of the United States Supreme Court found that partisan gerrymandering is justiciable in federal courts, but a failure of the members of the Court to agree on the standards of such a cause of action have prevented even a single successful federal lawsuit. See LULAC v. Perry, supra, note 34 at 413-423; Gaffney v. Cummings, supra, note (Upholding a plan that created safe seats based on a theory of partisan fairness). The Supreme Court has indicated that a state has a legitimate interest in drawing congressional districts to maintain “member-constituent relations” in the interest of keeping the seniority of the state’s delegation in the U.S. House of Representatives. White v Weiser, 412 U.S. 783 (1973).

[41] E.g. Vieth v. Jubelirer, 541 U.S. 267, 285-86, (2004) (indicating that partisanship is an “ordinary and lawful motive” in redistricting); Martinez v. Bush, 234 F. Supp. 2d 1275, 1297 (S.D. Fla. 2002) (indicating that the “raw exercise of majority legislative power does not seem to be the best way of conducting a critical task like redistricting, but it does seem to be an unfortunate fact of political life around this country”).

[42] Reynolds v. Sims, supra, note 7.

[43] White v. Regester, supra, note 22.

[44] 42 U.S.C. Sections 1973 et. see, Thornburg v. Gingles, 478 U.S. 30 (1986).

[45] 42 U.S.C. Section 1973(c); Georgia v. Ashcroft, 539 U.S. 461 (2003); Beer v. United States, 425 U.S. 130 (1976)

[46] See Shaw v. Reno, 509 U.S. 639, 647 (1993); Gaffney v. Cummings, 412 U.S.735, 752n.18 (1973).

[47] In re: Senate Joint Resolution of Legislative Apportionment, supra, note 39 at 3.

[48] See e.g. cases cited infra at footnote 79.

[49] Nor are “political fairness,” “proportionality,” or “competitiveness” appropriate criteria for redistricting. Such criteria enhance the role of partisanship and have no meaning except through the biased prism of ideological, political or self-interests. For example, former congressman Tom DeLay’s mantra in 2003 was “proportionality” and “fairness” for Texas Republicans when he led the effort to defeat 10 incumbent non-Hispanic Democrats in Congress through redistricting. Yet, once Republicans had won a majority of the Texas House of Representatives, the call for proportionality and fairness for Democrats was ignored. See, Bickerstaff, supra. note 23. The objective of “maximizing competitiveness” has a similar problem. The objective is vague, its value disputed, and its effect is to see redistricting through primarily a major political party prism. See Persily, supra. note 25. There probably is some normative good to be gained if redistricting on the basis of express, objectively verifiable criteria increases the number of districts that actually become competitive after a redistricting, but, if so, this is a worthwhile effect, not an objective of proper redistricting.

[50] Nevertheless, some scholars urge that politicians should be allowed to control the redistricting process. In “De-rigging Elections: Direct Democracy and the Future of Redistricting Reform,” supra. note 9, Professor Michael Kang urges that “Pluralist politics through the legislative process, not through insulated courts or committees, usually offer the best venue for this articulation and aggregation of societal interests into the compromise of public policy.” Id. at 696. He believes that redistricting reform is headed in the wrong direction in search of apolitical solutions for what is quintessentially a political problem. Id.at 716. He suggests that the solution is the use of direct democracy (e.g. a public referendum on redistricting plans). Written before approval of the initiative and referendum creating the new citizen commission in California, I believe that this article underestimates the potential of such an independent commission for “public deliberation” and the practical impossibility (e.g. timing, future changes, etc.) of making redistricting plans subject to a public referendum. I believe that Professor Kang is mistaken to concede that redistricting necessarily need be quintessentially a political problem.

[51] Compare, Issacharoff, supra, note 9 at 622-23 with Persily, supra, note 25 at 669. See also, Justin Buchler, “The Inevitability of Gerrymandering: Winners and Losers Under Alternative Approaches to Redistricting,” 5 Vill. J. Const. L. & Pol. 17 (2010).

[52] Several states are in the process of possibly changing their redistricting process. In New York, the legislature in 2012 adopted a constitutional amendment that awaits voter approval or rejection. See, Press Release, “Governor Cuomo Announces Passage of Constitutional Amendment and Legal Statute That Permanently Reforms the Redistricting Process,” (March 15, 2012). The amendment proposes creation of a 10-member commission with authority over state legislative and congressional redistricting. This is essentially a bipartisan commission with eight of its members selected by the leaders of each house of the legislature and the final two agreed upon by the first eight. This bipartisan commission replaces the state’s advisory task force. The commission would function like the Iowa Legislative Service Bureau, see, infra, footnote 57, to prepare maps that the legislature could not amend unless it rejects the commission’s plans twice. The amendment contains provisions designed to “prohibit” partisan gerrymandering and to protect minority rights. North Carolina is studying a similar reform proposal. See, James Siegel, “Leaders Optimistic about Redistricting Reform,” The Columbus Dispatch (April 7, 2012). Other state legislatures or voters have refused to create a commission for redistricting. Two of the most notable failures were in Ohio and in California before 2008. See Nicholas Stephanopoulos, Issue Brief, “Reforming Redistricting: Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail,” (March 7, 2007); Huefner, supra, note 9. (Both describe the failed efforts to adopt commissions in Ohio and California). Recently, however, a proposition has been submitted by referendum for Ohio to change to an independent commission similar to the one in California. The proposition is on the November ballot.

[53] The twenty-two states are Alaska (Alaska Constitution, Art 6), Arizona (Arizona Constitution, Art. 4, pt. 2, Sec. 1), Arkansas (Arkansas Constitution, Art. 8), California (California Constitution, Art. XXI), Colorado (Colorado Constitution, Art. V, Sections 47 and 48), Connecticut (Connecticut Constitution, Art III, Section 6), Hawaii (Hawaii Constitution, Art. IV), Idaho (Idaho Constitution, Art. III, Section 2), Illinois (Illinois Constitution, Art. IV, Section 3), Indiana (Indiana Code, Title 3, Art III, Sec. 2), Maine (Maine Constitution, Art. IV, pt. 3, Section 1-A), Mississippi (Mississippi Constitution, Art. 13, Section254), Missouri (Missouri Constitution, Art. III, Sections 2 and 7), Montana (Montana Constitution, Art. V, Section 14), New Jersey (New Jersey Constitution, Art. IV, Section 3), New York (Laws of New York, Legislative, Art 6-a, Section 83-m), Oklahoma (Oklahoma Constitution, Art. V, Sections V-11A-V-11E), Ohio (Ohio Constitution, Art. IX), Pennsylvania (Pennsylvania Constitution, Art. II, Section 17), Texas (Texas Constitution, Art. III, Section 28), Vermont (Vermont Statutes, Title 17, Section. 1904), and Washington (Washington Constitution, Art. II, Section 43).

[54] These states with backup commissions are Connecticut, Illinois, Indiana, Mississippi, Oklahoma and Texas. Supra, note 51.

[55] These three states are New York, Maine and Vermont. Supra, note 51. Some jurisdictions from time to time have created special commissions to advise on redistricting or other electoral matters (e.g. Utah). In such circumstances, the legislature or governing board is neither required to create such a commission nor to follow the commission’s recommendations. For purposes of this article, such special advisory commissions are not counted among the commissions required by law.

[56] These two states are Arkansas and Ohio. Supra note 58.

[57] The states are Alaska, Arizona, Colorado, California, Hawaii, Idaho, Missouri, Montana, Pennsylvania, New Jersey, Utah and Washington. Supra note 51.

[58] The commissions in Alaska, Colorado, Missouri, and Pennsylvania lack jurisdiction over congressional redistricting. Supra, note 51. In Montana, the commission arguably would have jurisdiction to redraw congressional district lines, but, like Alaska, Montana has only one seat in the U.S. House of Representatives. The five states in which an autonomous commission routinely redraws both state legislative and congressional district lines are California, Hawaii, Idaho, New Jersey, Utah and Washington. Id.

[59] Iowa Code, Chapter 42.

[60] A Temporary Advisory Commission has been used to advise the staff and to hold public hearings on staff proposals after they are submitted to the state assembly.

[61] Iowa Code at Sec. 42.4; the law prohibits the use of addresses of incumbent legislators or members of Congress, political affiliations of registered voters, previous election results, and demographic information, other than population head counts, except as required by the Constitution and the laws of the United States.

[62] An approved plan then goes to the governor, who can veto it.

[63] However, the staff proposed plans have always eventually gained legislative and gubernatorial approval. The Iowa Legislature accepted the staff’s third plan in 1981, its first plan in 1991, its second plan in 2001 and its first plan in 2011.

[64] These states are Maine, New York and Vermont. Supra, note 53.

[65] The Constitution of Maine creates a commission to advise the state legislature on redistricting. The 15 members of the Maine commission are principally appointed by the state’s legislative leaders (majority and minority leaders), but there is also provision for three “public members.” In New York and Vermont the legislature has provided by law for an advisory commission that proposes a plan to the legislature—which the legislature can accept or amend. The five members of the Vermont commission are appointed by the Chief Justice (one member, who serves as chair), the governor (two members; one from each party that received over 25 percent of the vote in the last gubernatorial election) and the members selected by the governor (one by each of the members selected by the governor). No member of the Vermont Commission may be a member or employee of the legislature. In New York, the six members of the Legislative Task Force are selected by the legislative leadership. The majority leader of each house selects two members of the commission. The minority leader of each house selects one. See Diaz v. Silver, 978 F.Supp.96, 98-99 (EDNY 1997) (describing how the New York state legislature created a redistricting task force to redraw congressional districts, but the task force deadlocked over partisan politics).

[66] E.g., in 2011, the governor of Virginia by executive order and the state legislature in Rhode Island created an advisory commission for the 2011-2012.

[67] Ohio uses an advisory commission to assist its legislature redraw congressional districts and its state officer commission redraw state legislative districts. Ohio Code Sec. 103.51. The Hawaii Constitution provides for a bipartisan redistricting commission, but also provides for creation of an apportionment advisory council from the different islands to assist the commission. Hawaii Constitution, Art. IV, Section 28.

[68] The states are Connecticut, Illinois, Mississippi, Oklahoma, Texas and Indiana. Supra, note 58. In Mississippi and Texas, the commission consists of state officers. In Illinois, Oklahoma and Connecticut, the members of the commission are principally selected by the legislative leadership of the two major parties. Oklahoma changed from a state officer backup commission to a bipartisan backup commission in 2010. In Connecticut, an additional member is chosen by lot from two persons named by the Chief Justice if the bipartisan backup commission fails to timely agree on a plan. In a sixth state, Indiana, a backup commission of primarily legislative officers convenes to redraw congressional districts whenever the legislature fails to timely do so or “if at any other time for any reason the state finds itself without a valid congressional district law.” Although it does not involve a commission, a seventh state constitution (Oregon), provides that the state secretary of state shall prepare plans for redistricting the state legislative seats if the legislature fails to do so timely and shall file them with the state supreme court. Oregon Constitution, Art. IV, Sec. 6 (3). Similarly, although Missouri has a bipartisan commission, it too has a backup mechanism. If the bipartisan commission is unable to agree on a redistricting plan in six months, the state supreme court appoints a six person committee consisting of judges from the courts of appeal to redistrict the respective houses of the state legislature.

[69] For much of the first half of the 20th Century, many state legislatures failed to pass legislation redrawing state legislative or congressional districts. Backup commissions were envisioned as a means for curing this problem. Proponents thought that such a commission would provide both an incentive to the legislature for timely getting its job done and a means of redistricting by the state if the legislature did not do so.

[70] For example, if a state’s commission is clearly controlled by one party, individual lawmakers may obstruct passage of a legislative plan believing that they can obtain a more partisan plan or a plan that better fits the individual lawmaker’s interest from the commission. A state’s governor may be persuaded to veto redistricting legislation for the same reason (i.e., to get the issue of redistricting to the commission). The reverse side of this circumstance is that a statewide official who serves on a backup commission may value the opportunity to seize the spotlight afforded by the commission and to parcel out favors to affected lawmakers. As a result, he or she may look favorably on legislative inaction or gubernatorial veto. In the instance of a backup commission that is designed to be bipartisan, it may be in the interest of lawmakers in the minority party to block unfavorable legislative action. Potential personal and partisan self-interest is rife throughout.

[71] Supra, note 53. In Arkansas, redistricting of the state legislature is the task of a commission consisting of the governor, attorney general, and secretary of state. All three are statewide elected officials. In Ohio, the commission consists of the governor, auditor, secretary of state, and two members selected by the legislative leaders of the two major political parties. The Ohio governor, auditor and secretary of state are elected statewide. In both states, the legislature retains authority to redraw congressional districts. In November, however, Ohio voters consider a constitutional amendment that will adopt an independent commission similar to the one in use in California.

[72] The 2011 state legislative plans presented by the governor in Arkansas won approval of that state’s commission on a vote of 2-1, with the secretary of state dissenting because the plan allegedly reduced the number of black opportunity districts in the state house of representatives. See, Arkansas News article John Lyon, Board of Apportionment Members Clash over Black-Majority Districts (July 19, 2011).

[73] The states are Alaska, Arizona, Colorado, Hawaii, Idaho, Missouri, Montana, Pennsylvania, New Jersey, Utah and Washington. The commissions in Alaska, Arizona, Missouri, and Pennsylvania lack jurisdiction over congressional redistricting. Supra, note 53. In Washington, the state legislature reserves the right to amend its commission’s plan, but only on two-third’s vote of the membership of each house. Washington Constitution, Art. II, Sec. 43. In view of this requirement for an extraordinary legislative majority, I have categorized Washington among the states with bipartisan commissions instead of an advisory commission.

[74] Some writers have characterized the bipartisan commissions as independent commissions. I strongly disagree. These commissions are autonomous in the sense that the redistricting plans do not require legislative enactment before becoming law, but they are not even arguably independent of political influence. Allowing elected or party officials to select members of a redistricting commission based on partisan affiliation cannot result in a commission independent of politics or officeholder influence. The addition to the commission of one or more persons unaffiliated with the major parties may prevent the worst of partisan gerrymanders, but does little or nothing to minimize incumbent protection in a plan or to assure that a redistricting plan embodies only the public interest. At least one other writer has urged that, to the extent these commissions consist of politicians or their designees, they should be called “politician commissions.” Sam Hirsch, “Unpacking Page v. Bartels: A Fresh Redistricting Paradigm Emerges in New Jersey,” 1 Election L.J. 1 (2002). He urges that such commissions are a valid reform alternative because redistricting is a political enterprise and the commission may lead to compromise among the stakeholders.

[75] These states are Arizona, Hawaii, Montana, New Jersey, Pennsylvania, and Washington. Supra, note 53.

[76] In the case of the Arizona Commission, if the four members of the commission named by legislative leaders are unable to agree on a fifth, nonpartisan member to serve as chair of the commission, the choice of this fifth member is made by the state commission on appellate appointments. Arizona Constitution, Part 2, Section 1. This effort to select an unbiased chairman was tested in 2011 when the Republican governor, Jan Brewer, sought to remove the chairman for “gross misconduct” as being biased for Democrats. The Arizona Supreme Court reinstated the chairman. Mathis v. Brewer, No. CV-11-0313-SA (Ariz 2011).

[77] See, e.g. Joseph Goodman, “Why Redistricting Commissions Aren’t Immune from Politics” (January 12, 2012) available at Pew Center; Richard Perez-Pena, “New Districts Seen as Aiding Democrats in New Jersey,” (April 3, 2011) (drawing state legislative districts); “New Jersey Redistricting Panel Picks G.O,P. Congressional Map,” (drawing congressional districts).

[78] Loevy, supra, note 32- at 105.

[79] Id.

[80] A bipartisan commission designed to assure fairness between the major parties may operate to freeze out other parties. For example, the City of Minneapolis charter provided that members of its redistricting commission were to be picked from lists submitted by parties that obtained 5 percent or more of the vote for governor. Although two members of the city council in Minneapolis were from the Green Party, the party had no representation on the local redistricting board because the party had not run anyone for governor. The resulting redistricting was adverse to the interests of the Green Party incumbents. See, Johnson-Lee v. City of Minneapolis, 170 Fed. Appx 15 (8th Cir. 2006). The city subsequently changed its method of redistricting.

[81] Holt v. 2011 Legislative Reapportionment Commission, 2012 WL 360584 (Pa, January 25, 2012). The Colorado Supreme Court did likewise in 2002, In re: Reapportionment of Colorado, 45 P.3d 1237 (Colo. 2002) and again in 2011, In re: Apportionment of Colorado General Assembly, ___ P.3d ___, 2011 WL 5830123 (Colo. Nov. 15, 2011). The Idaho Supreme Court rejected that state’s commission plan in 2012, Twin Falls City v. Idaho Commission on Redistricting, ___ P3d ___, 2012 WL 130416 (Idaho, Jan. 18, 2012). The Missouri Supreme Court struck down the commission’s senate plan. State v. Carnahan, SC92237 (January 18, 2012). The Alaska Supreme Court did so as well with its state commission plan. In re: 2011 Redistricting Cases, S-1471 (May 10, 2012).

[82] Holt, supra, note 79 at 8. The Court also held that the commission was not the legislature and therefore its plans were not entitled to the same deference as those passed by the legislature and were not presumed to be constitutional. Id. at 37

[83] Proposition 11 (2008) codified as California Constitution, Art. XXI and California Government Code, Section 8252-8253.6. A subsequent initiative and referendum in 2010 (Proposition 20) extended the commission’s jurisdiction to include congressional districts. Another proposition in 2010 to do away with the commission (Proposition 27) failed when over 59 percent of the voters supported keeping the commission.

[84] Under the legislation implementing this amendment, the California state auditor is required to remove all applicants for service on the commission who violated any one of a long list of conflicts of interest, including “staff and consultants to, persons under a contract with, and any person with an immediate family relationship with the Governor, a Member of the Legislature, a member of Congress, or a member of the State Board of Equalization.” A stringent screening process (utilizing a subsequent application, the composition of four essays, letters of recommendation, etc.) in 2011 reduced the number of applicants to 4,547 persons. Pursuant to the implementing legislation, the state auditor also must establish a panel of independent auditors that, from the applicants remaining after the conflicts screening, selects the 60 “most qualified” applicants and groups them in three subpools of 20 applicants according to those registered in the largest political party in the state, those registered in the second largest party in the state, and those not registered in either of these two political parties. These subpools are to be “created on the basis of relevant skills, ability to be impartial, and appreciation for California’s diverse demographics and geography.” During this stage of the selection process, the members of the selection panel are prohibited from communicating with certain elected officials, or their representatives, about the selection process or the applicants. The legislative leaders are given an opportunity to strike a maximum of eight persons from among the 60 in the pools. Subsequently, the first eight members of the commission are chosen at random by the state auditor—three from each of the pools of the major political parties and two from the third pool. These eight commissioners then select an additional six members (two from each subpool). These additional commissioners must be selected to assure that the 14 member commission reflects the state’s diversity, including the racial, ethnic, geographic, gender and political diversity. California Government Code, Section 8252. In 2011, the commission was diverse with respect to at least party affiliation, race, gender and ethnicity. Cain, supra, note 9 at 1825.

[85] California Citizens Redistricting Commission Report on 2011 Redistricting 2 (2011).

[86] The constitutional provision directs that if the commission does not adopt a plan by the requisite vote, the secretary of state is to petition the state supreme court for the appointment of masters to adjust the plan in accordance with the constitutional criteria.

[87] See, Daniel Lowenstein, “Opposing View on Redistricting: Tinkering Does No Good,”USA Today (Oct.21, 2010). (Professor Lowenstein led an unsuccessful effort in 2010 to repeal the proposition creating the commission; calling the independent redistricting commission “untested, unnecessary, and wasteful)”; John Wildermuth, “Californians of the Year: Redistricting Commissioners,” (December 20, 2011); Marquecee Harris-Dawson, “California Redistricting Preserves Black Voice in State Politics,” Vol. 18 Race and Poverty 25 (Issue 2, 2011).

[88] Cain, supra, note 9 at 1821-1829. See generally, the various articles in Volume 2, Issue 6 of Race and Poverty (2011).

[89] See generally, Cain, supra, note 9 at 1824-1829; Vladimir Kogan and Eric McGhee, “Redistricting California: An Evaluation of the Citizens Commission Final Plans,” (2011) at 21and 33-36. However, in the view of some writers the commission’s plans kept the political status quo. See, Juliet Williams, “California Electoral Reforms Yield No Big Changes,” San Francisco Chronicle (June 6, 2012).

[90] Letter from Assistant U.S. Attorney General Thomas Perez to California Attorney General Kamala Harris (January 17, 2012).

[91] Initially, some Republican members of the commission disputed the commission’s choice of staff. See, Jim Sanders, “Redistricting Panel Chooses Mapmaker after Spirited Debate,” The Sacramento Bee: Capitol Alert (March 21, 2011). One Republican commission member, Michael Ward, voted against each of the commission’s four plans and alleged that the commission “broke the law.” See, John Harbe, Mike Ward: “Redistricting Panel Broke LawCal Watchdog (May 21, 2012, The written statement from Mr. Ward is part of this news story). Despite Mr. Ward’s opposition, however, each plan won a majority of the five votes of the Republican members of the commission. Republican Commissioner Vincent P. Barabba (a former director of the Census Bureau), disputed claims that the commission members were naive and manipulated by testimony orchestrated by the Democrat Party. He observed “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….” Vincent P. Barabba, “Redistricting Commission Did Its Job and Followed the Law,” (January 8, 2012) (originally written for the San Jose Mercury News).

[92] It is unclear whether the final plans actually disadvantage Republicans. Several writers have suggested that the loss of apparent Republican seats in the commission plans was due to the incumbent protection plan adopted by the legislature in 2001 that effectively “kept the Republicans in the game” and the demographic changes and drop in Republican registration that occurred in the state since the 2000 census. David Dayen, “Redistricting Maps Don’t Create Moderate Seats, They Create More Democratic Ones,” FireDogLake (June 13, 2011). See Cain, supra, note 3 at 1829 n.81; Kogan and McGhee, supra, note 126 at 33.

[93] Vandermost v. Bowen, S196493; Radanovich v. Bowen, S196852.

[94] See, Judicial Council of California Release, “Supreme Court Denies Challenges to Redistricting Maps,” (Petition denied Oct. 26, 2011) and “California Supreme Court Denies 2 Redistricting Challenges,” (CBS/AP Oct. 26, 2011).

[95] Radanovich v. Bowen, 2:11-cv-09786-SVW-PJW (unpublished opinion).

[96] Vandermost v. Bowen, 269 P. 3d 446 (January 27, 2012). Under the California constitution, any statewide redistricting plan can be subject to a referendum.

[97] These cities are Austin, Tucson, Columbus (Ohio), Portland and Seattle. Portland actually has a commission form of government. The City of Detroit changed from at-large to single-member districts in 2012. The National League of Cities report, “Partisan vs. Nonpartisan Elections,” shows that in 2001 between 40 percent and 50 percent of small and medium size cities used at-large systems.

[98] These cities are Jacksonville, Indianapolis, Charlotte, Detroit, Memphis, Boston, Denver, Kansas City, Virginia Beach, Colorado Springs, Raleigh and Arlington. A combination of at-large and single-member elections of members of a city council (other than the mayor) is commonly called a “mixed” or “hybrid” election system.

[99] To see the map for Chicago, click here. To see the map adopted in Dallas, click here. To see the map proposed by the advisory commission for Los Angeles, click here. (These links are no longer functional.)

[100] This flexibility is enhanced in many cities by the ability of voters through initiative and referendum to amend a city’s charter without the approval of the city council.

[101] Editorial: “Council Should Learn from Flawed Redistricting,” Dallas Morning News (November 22, 2011).

[102] The council district lines in many cities are misshapen on their face. However, it is impossible from such facial examination to know if the shape of a district is attributable to a verifiable legitimate interest (e.g. compliance with the Voting Rights Act) or to politics or incumbent protection.

[103] See news articles cited at supra, notes 10, 11 and 12 , In Hulme v. Madison County, 118 F. Supp. 2d 1041, 1044 (S.D. Ill. 2001) the court observed that the local redistricting (county) in that case was full of “threats, coercion, bullying, and a skewed view of the law” with a process “so far short of representing the electorate that it seems the citizens of Madison County were not so much as an afterthought.”

[104] George Hawkins, “S.D. Commissioners deserve credit for creating fair redistricting map,” San Diego Source (Dec. 6, 2011).

[105] Editorial: “Yes to Minneapolis charter question,” Minneapolis StarTribune (October 29, 2010).

[106] Among the cities that have used advisory commissions during the 2011-2012 redistricting cycle are Los Angeles, Dallas, Albuquerque, Sacramento, Mesa, and San Jose.

[107] Editorial, “Council Should Learn from Flawed Redistricting,” Dallas Morning News (November 22, 2011).

[108] Editorial, “Dallas redistricting process tainted by politics, backroom deal-making,” Dallas Morning News (September 12, 2011).

[109] Since the advisory commission’s map is only a recommendation to the city council, the members of the commission can pursue political goals without bearing responsibility for a plan’s ultimate legality. Thus theatrics by a commission member brings few penalties. Moreover, in many circumstances this problem is exacerbated because the cost of expert legal advice means that such advice is saved for the city council and is unavailable in equal amounts to the advisory commission. In other circumstances, a conflict may occur because the advisory commission plan does not meet the partisan or personal interest demands of the incumbents.

[110] City of Baltimore Charter, Art. III, Sec. 7.

[111] City of San Francisco Charter, Sec. 13.110 (d).

[112] See, Rachel Gordon, “Redistricting Task Force Gets 3 More Nominees,” San Francisco Chronicle (June 24,2011).

[113] Twenty of the 30 largest cities have nonpartisan elections. National League of Cities Report, “Partisan vs. Nonpartisan Elections.”

[114] City of New York Charter, Chapter 2-A, Section 50. If all of the council members are from the same political party and there is no council delegation for the second party, this second largest party submits names to the mayor for appointment. Id.

[115] Board of Estimates of the City of New York v. Morris, supra, note 15.

[116] City of New York Charter, Chapter 2-A, Section 50, Paragraph 7b1 and Section 52.

[117] City of Tulsa Charter, Article VI, Sections 10.1-10.5.

[118] The charter provides that the chief municipal judge shall make the appointments, or if the chief judge is unwilling to do so, then the municipal judges are to select one of their numbers to do so. If they refuse to do so, a panel of three members is selected at random from among retired municipal judges is to make the appointments. However, the city has done away with municipal courts and the city manager. The redistricting in 2011 used retired judges to make the appointments to the commission, but the city will need to revise its charter. See, “Redistricting Process needs to be Updated,” LaJolla Patch (June 5, 2012).

[119] San Diego Municipal Code, Art. 7, Sec. 27.1403.

[120] City of San Diego Charter, Art II, Sec. 5.1.

[121] City of Minneapolis, Minnesota Charter, Chap. 1, Sec. 3.

[122] See, Editorial, “Yes to Minneapolis Charter Question,” Minneapolis StarTribune (Oct. 29, 2010); E-mail from Barry Clegg, the chairman of the charter commission in 2012, to the author (March 19 , 2012). The commission in 2011 appointed an advisory group to assist on redistricting. Id.

[123] Id.

[124] Id. A reason for the change was that a major party was defined as one that received at least 5 percent of the vote for governor. This requirement made it impossible for the Green Party to submit names for appointment to the commission. See, Johnson-Lee, supra, note 80.

[125] Supra, note 57. This also is the method followed by the state of New York in its proposed commission. Supra, note 50.

[126] E.g., Florida Constitution, Art. III, Sec. 21. Such attempts at reform “have encountered skepticism because they would leave the institution’s (e.g. city council) partisan structure intact.” Huefner, supra, note 9 at 52.

[127] See, e.g. the decision of the Florida Supreme Court, supra, note 39.

[128] See Kang, supra, note 9. See also, Heather Gerken, “The Double-Edged Sword of Independence: Inoculating Electoral Reform Commissions Against Everyday Politics,” 6 Election Law Journal 184,185 (2007) (Indicating “The solution to the problem of political infection, then, is not to quarantine electoral reform commissions from everyday politics, but to inoculate them”) and Nathaniel Persily, supra, note 25 at 668 (Indicating that redistricting by incumbents is the lesser or equal of all evils.) In his recent article, Bruce E. Cain urges that value and interest tradeoffs are “inevitable” and “implicit” in redistricting and that the goal behind proposals to reform redistricting is to “lessen court involvement.” Cain, supra, note 9 at 1811. For the reasons advanced in this article, I believe that Professor Cain overstates the inevitability of political logrolling and misunderstands the reasons for reform. Moreover, all of these suggestions increase politicization of the redistricting process.

[129] See, e.g. Kang, supra, note 9 at 686 (“Redistricting is an inherently political question that ultimately requires political answers); Cox, supra, note 9; Note, “A Federal Administrative Approach to Redistricting Reform,” 121 Harvard Law Review, 1842 (2008).

[130] See, Cain, supra, note 9 at 1821-1829 (2012). In reviewing the conduct and plans of the California Citizen Commission, Professor Cain seems at times to be endorsing rather than criticizing the commission. He sees the commission as “diverse with respect to race, gender, and ethnicity” and the commission’s plans as adhering “fairly closely to the constitutional criteria, producing boundaries that were more compact and more competitive than the lines they replaced.” Id. at 1827. He acknowledges that the commission maps were greeted with the “generally favorable judgment of the press and public” and were “an improvement over the status quo and within the parameters of reasonably balanced efforts.” Id. at 1828 and 1829. Despite these successes, Cain concludes that the California Commission could have done better, and argues for incorporating the independent citizen commission with what he calls the “New Jersey bargaining system.” Id. at 1838-1841. The New Jersey system consists of a bipartisan commission in which all but one of the members of the commission is appointed by the political parties. To Professor Cain, this system provides a model in which the emphasis is on political compromise. He sees incentives for partisan compromise as the future for redistricting reform. I disagree. Missing from Professor Cain’s analysis is any discussion of the inability of bipartisan commissions in general to produce redistricting plans that generally win public applause or adhere to the public interest. Redistricting reform needs greater emphasis on the public’s interest; not more incentives for partisan compromise or incumbent protection.

[131] Professor David Lowenstein attacked the idea of an independent commission in California by arguing “when you try to take a political process and put it in the hands of bureaucrats who are supposed to be nonpartisan, it’s a fraud and it’s not going to work.” James Koren, “Some Democrats Seek to Roll Back Citizen Control of redistricting,” InlandPolitics.com (Feb. 17, 2010). I do not think any characterization of the California commission as composed of bureaucrats is fair. The simple answer is that Professor Lowenstein’s prediction of disaster for the commission was wrong.

[132] Olga Pierce and Jeff Larson, “How Democrats Fooled the California Redistricting Commission” ProPublica.org (December 21, 2011). ProPublica later acknowledged that Republicans made similar attempts, but allegedly were not as well organized as the Democrats. See, Olga Pierce, Jeff Larson and Lois Beckett, “Answering Your Questions on Our California Redistricting Story” ProPublica.org (Dec. 23, 2011).

[133] The reality, of course, is that political parties and political groups almost always try to influence redistricting, often through testimony supposedly aimed at protecting ill-defined “communities of interest.” This is common nationwide regardless whether redistricting is done by a commission.

[134] Baraba, supra, note 91. The chairman of the California commission issued a statement: “Of course partisan political interests tried to influence the Commission’s independent process, but that goes with the territory, and the Commission had its eyes wide open and was very aware of that possibility. The important point is that the Commissioners were not unduly influenced by that.” “Statement from California Redistricting Commission Responding to Our Story,” ProPublica.org (December 23, 2012). Common Cause and several other organizations challenged the ProPublica story. See, e.g., “California Common Cause Responds to the ProPublica Redistricting Report,” (December 21, 2011); Robert Cruickshank, “ProPublica’s Absurd Attack on California Redistricting,” Calitics (December 22, 2011); John Meyers, “The Frenzy Over ProPublica’s Redistricting Report,” KQED News (Dec. 22, 2011).

[135] The willingness of the California redistricting commission in 2011 to readily make changes to its initial plans in direct response to public comments and the law won support from organizations that often litigate redistricting issues The California Commission’s initial redistricting plans drew numerous and vigorous complaints, especially from the Hispanic community. It is clear that the commission’s first plans were drawn without adequate attention to the Voting Rights Act. The commission’s response actually shows one of the greatest strengths of an independent commission. Rather than rejecting or minimizing the suggested changes to its first plan to protect partisan or incumbent interests as often occurs with legislative or bipartisan commission plans subject to similar criticism, the California commission in good faith got expert legal advice on complying with the Voting Rights Act and made changes to resolve the complaints. This responsiveness won the favor of most of those diverse groups that had complained and sought changes.

[136] In re: Senate Joint Resolution of Legislative Apportionment, supra, note 39 at *12-15.

[137] The California commission in 2011 took a hands-on approach to drawing lines rather than relying exclusively on staff or consultants to generate the options. Cain, supra, note 9 at 1834. Compare this approach to the alleged effect of partisan staff in Colorado. Lois Beckett, “Colorado Redistricting Had Inside Help,” ProPublica.org (Feb. 9, 2012, first published in the Denver Post).

[138] The independent redistricting commission in the City of San Diego “took care to avoid hiring any individual too closely tied to local political parties, political officials or organizations.” Letter from the 2011 Redistricting Commission to the 2020 Redistricting Commission Re: “Recommendations for 2010 Redistricting Commission 5,” (October 25, 2011).

[139] A similar provision allowing the governor to remove commissioners for gross misconduct also exists for the California Commission. Such a provision probably is desirable.

[140] Cory Briggs, Opinion: “Redistricting Commission Risks Lawsuits,” VoiceofSanDiego.org (July 13, 2011).

[141] Supra, notes 51 and 74.

[142] In 2005, a proposal in California to create a redistricting commission panel consisting of three retired judges failed.

[143] E.g., Maryland Constitution, Art III, Sec. 5; Oregon Constitution, Art. IV, Sec 6; Florida Constitution, Art. III, Sec.16(c). Altogether 19 state constitutions provide exclusive state court jurisdiction to the state supreme court. In four of these states, the review is automatic. Critics of such provisions suggest that requiring or expediting supreme court review encourages litigation. See, Cain, supra note 9 at 1837and 1842. However, such litigation is a valuable means of securing a prompt determination of whether redistricting plans violate the state constitution.

[144] Supra, note 120.

[145] Approximately 26,000 persons were judged to have met the basic qualifications for serving on the California Commission. This number was further reduced to 4,547 through stringent testing. The most qualified of these applicants were then divided into three sub-panels of 20 according to their self-identified political affiliation. See, supra, note 84.

[146] The organization that obtained the signatures to put the proposition on the ballot is Austinites for Geographic Representation (AGR). The proposition is for the city to change from at-large elections of its city council to a 10-1 system, with the districts drawn now and in the future by an Independent Citizens Redistricting Commission patterned after the California state commission.

[147] E.g., The City of New York requires that certain appointees must come from separate boroughs.

[148] California, Arizona, Pennsylvania and Washington each selects some members of its redistricting commission in this fashion; although it is usually only one member, often the chairman. In California, the initial eight members of the state commission (chosen at random from the pools of qualified applicants) select the other six members of the commission. Supra, note 51.

[149] The limitations on member eligibility among state bipartisan commissions provide some examples. Some of the limitations on eligibility are geographic. For example, Colorado requires that at least one of the appointees must reside “west of the continental divide.” Others are political. For example, several states prohibit public officials or employees from serving on the commission or cap the number of legislative members or staff that may serve. These states include Alaska (Alaska Constitution, Art. VI, Section 8), Arizona (Arizona Constitution, Art IV, Part 2, Section 1), Idaho (Idaho Constitution, Art. III, Section 2), Pennsylvania (Pennsylvania Constitution, Art II, Section 17) (requiring that the chairman not be a public official) and Washington (Washington Constitution, Art. II, Section 43). The. Colorado Constitution (Art. V, Section 48) caps the number of public officials that may serve on the commission. In New York City, the mayor and political parties are limited on who may be chosen to serve on the redistricting commission. See, City of New York Charter, Chap. 2-A, Section 50. An example of a single provision that contains these limits on eligibility is the Arizona Constitution. Article IV, Part 2, Section 1 reads:

. . . Of the first four members appointed, no more than two shall reside in the same county. Each member shall be a registered Arizona voter who has been continuously registered with the same political party or registered as unaffiliated with a political party for three or more years immediately preceding appointment, who is committed to applying the provisions of this section in an honest, independent and impartial fashion and to upholding public confidence in the integrity of the redistricting process. Within the three years previous to appointment, members shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer, and shall not have served as an officer of a political party, or served as a registered paid lobbyist or as an officer of a candidate’s campaign committee.

[150] Political Parties, Elections, and Referendums Act, 2000, c.41, s 3(4).

[151] E.g., Kramer v. Union School District, 395 U.S. 621 (1969).

[152] Sugarman v. McDougall, 413 U.S. 634, 647 (1973), quoting from Boyd v. Thayer 143 U.S. 135, 161 (1892). In Sugarman, the Supreme Court struck down a New York civil service law that provided that only citizens may hold a permanent position in a competitive class of state civil service. In doing so, however, the Court emphasized that it was not holding that a state could not require citizenship as a qualification for office. The Court noted that this power to prescribe qualifications for persons holding elective or important nonelective positions goes “to the heart of representative government.” 413 U.S. at 647.

[153] Gregory v. Ashcroft, 501 U.S. 452, 471 (1991), quoting Vance v. Bradley, 440 U.S. 93, 97 (1979).

[154] California Government Code, Sec. 8252.

[155] Id.

[156] In Missouri, the members of the state’s redistricting commissions are prohibited thereafter for four years from serving in the state assembly. Similar limits on future office exist in Hawaii and Montana. The California Constitution makes a redistricting commission member ineligible for five years to be a candidate for elected office, or to serve as paid staff or a paid consultant for a party or officeholder, or to register as a lobbyist. Supra, note 53.

[157] A concern voiced about these criteria and those on eligibility is that such criteria might make it difficult to find enough qualified applicants for service on the commission. Probably not. Over 4,500 persons qualified for the California Commission despite the state’s rigorous application approval process and future limitations on those who served on the commission. The City of San Diego has had ample applicants (51 in 2011). The simple fact is that our society is filled with informed persons willing to become engaged in our democratic institutions; this is true of a redistricting commission if the commission is autonomous (not merely advisory) and the search for possible commission members reaches beyond the usual suspects active in politics.

[158] See, e.g., Huefner, supra note 9; Justin Levitt, “A Citizens Guide To Redistricting,” Brennan Center for Justice, Nov. 29, 2010.

[159] Every redistricting must comply with the United States Constitution and the Voting Rights Act of 1965, even if there is no mention of this federal law in the city charter.

[160] E.g., The Constitutions of Arizona [Const. art IV, pt. 2 Sec. 1(4) (A)] and California [Const. art XXI, Sec. 2(d) (2)] expressly require compliance with the Voting Rights Act.

[161] For example, the constitutional amendment adopted in Florida in 2010 provides that “districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.” Florida Constitution, Art. III, Sec. 20 . This wording conflates two different parts of the text of the U.S. Voting Rights Act. In re: Senate Joint Resolution of Legislative Apportionment 1176, supra, note 37 at *21. This wording in the Florida Constitution is a combination of wording in Sections 2 and 5 of the Voting Rights Act, thus its effect could be different than either of these provisions. As a result, it may go beyond the applicable parts of this Act in Florida by applying statewide whereas Section 5 of the Voting Rights Act applies in only a few Florida counties. The Florida constitutional provision also provides that state legislative districts must be as equal in population as “practicable” (i.e. the traditional standard for congressional districts) meaning that “any deviation from the goal of mathematical precision must be based upon compliance with other constitutional standards.” Id.

[162] The state constitutions that expressly require compactness are those in Alaska, California, Colorado, Hawaii, Illinois, Maine, Maryland, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin. Many city charters do so as well. E.g. San Diego City Charter, Art. II, Sec. 5.1.

[163] See, Pearson v Koster, 359 SW3d 35, 38 (Mo, 2012) (Indicating that the purpose of a provision requiring that districts be contiguous, compact, and nearly equal in population is “to guard, as far as practicable, under the system of representation adopted, against a legislative evil, commonly known as ‘gerrymander.’”).

[164] These terms are elusive, but worthwhile if adequately defined. The charter for the City of New York provides that “neighborhood and communities with established ties of common interest and association should be kept intact.” City of New York Charter, Chapter 2-A, Sec. 50.

[165] In some instances, the applicable provision of the constitution or charter sets a priority among these requirements in the event of conflict.

[166] California Civil Code, Section 8252. The constitutional amendment adopted in Florida in 2010 similarly prohibits the consideration of such data and prohibits any plan or district from being drawn with the intent to favor or to disfavor a political party or incumbent. Supra, note. The constitutions of nine states, including California, prohibit such favoritism or discrimination, although the wording, scope, and effect of these provisions vary.

[167]. In Iowa, the Legislative Service Bureau is forbidden to consider election data when drawing a redistricting plan Supra, note 57. Article III, Section 20 of the Florida Constitution similarly prohibits the consideration of such data during redistricting..

[168] San Diego City Charter, Art. II, Sec. 5.1. The Florida, Arizona and California Constitutions contain a similar provision that prohibits a redistricting plan designed to favor or disfavor an incumbent. Supra, note 51.

[169] Many states already provide the data and software necessary for this opportunity for public participation. The Florida Supreme Court recently noted that technological advancements have made it possible for courts to objectively evaluate both enacted and alternative redistricting plans without the necessity of traditional fact-finding. All parties were able to evaluate plans using the same statistical analysis and data reports. Supra, note 39 at *12-15. This is also true of the public. Every jurisdiction should make this technology available in the future.

[170] See Huefner, supra, note 9 at 58.

[171] In California, the state’s citizen redistricting commission was submitted to the voters in 2008 through an initiative petition after supporters of the commission idea had tried unsuccessfully for three years to win legislative approval of a constitutional amendment creating such a commission. See Gerrymandering, The Movie (2010). The initiative and referendum process is available in many cities to achieve redistricting reform when the city council refuses to act. The voters of the City of Austin are voting November 6, 2012, on whether to change to a 10-1 single-member election system and to create an independent commission. This ballot proposal is the result of an initiative petition drive organized by the group, Austinites for Geographic Representation (AGR). The Austin City Council also placed on the same ballot a proposition to change to an 8-2-1 system of electing the mayor and two council members at-large and eight council members from geographic districts.