News: CJ Exclusives

Redistricting Panel Not Silver Bullet

Experience in other states shows that partisanship, litigation remain

Two years ago, state Rep. Russell Capps, R-Wake, complained that his newly redrawn, Democrat-leaning district resembled the main course at a holiday dinner — sort of. “If you hold it upside-down,” Capps said at the time, “it looks like a turkey.”

But odd-shaped, gerrymandered districts are not unique to North Carolina. Reapportionment in Pennsylvania two years ago enraged state senators because of a resulting redistricting plan that was said to resemble a “mutated starfish.”

Lawmakers in Nevada likened their new 2001 legislative districts to: a battered cowboy boot; “one of those old telephones;” a Gila monster; a “big, ugly [coyote] that’s biting at itself;” and “a poodle trying to turn around and bite The Spaghetti Bowl” (a Las Vegas-area transportation project of entangled highway ramps and flyovers).

Capps’s district was changed after a successful GOP court challenge and he was re-elected in 2002. However, the North Carolina General Assembly is again causing aggravation, mostly for the majority of its Republican members, with maps it drew in November. Judges will review districts again soon to determine whether they meet the criteria for constitutionality laid out by the state Supreme Court in 2002.

Trying to avoid the tussle for power, some North Carolina legislators have proposed the establishment of a nonpartisan commission to handle redistricting duties. They argue that such panels minimize political considerations such as incumbency, and instead endeavor to follow constitutional guidelines such as compactness and communities of interest.

But a review of the practice in other states shows that commissions are usually still partisan, and are rarely the silver bullets that prevent court battles.

Twelve states employ some form of a commission that assumes the responsibility for redistricting, according to the National Conference of State Legislatures. Every state panel is constructed differently. Some have as few as three members, such as in Arkansas, or as many as 18 members, such as in Missouri.

While size doesn’t matter much, appointing power does. The states that assign independent mapmakers largely strive to designate an equal number from representatives of the two largest parties. But every commission requires someone to cast the winning vote, whether it is the odd-numbered final appointee, majority representation on the board, or some other designee. Those tiebreakers often cause the nonpartisan nature of the commissions to dissolve.
In fact, the purpose for many commissions has not been to prevent partisanship, but to avert or overcome deadlocks in legislatures over redistricting.

“The number one thing a commission does is make sure a plan is passed, because they’re always set up with some kind of tiebreaker,” said Peter Wattson, counsel for the Minnesota state Senate, and a redistricting analyst for the National Conference of State Legislatures. “Depending on what the partisan makeup is, that determines how you break the tie.”

Connecticut, Illinois, Mississippi, Oklahoma, and Texas employ backup commissions in case their government leaders can’t get legislative redistricting plans passed. Both Illinois and Texas, split almost evenly between Republicans and Democrats, had to resort to their backups in 2000.

In Texas, lawmakers failed to produce legislative maps by the May 28, 2001 deadline, leading to the creation of the Legislative Redistricting Board. The panel consisted of the lieutenant governor, the speaker of the House, the attorney general, the comptroller of public accounts, and the commissioner of the General Land Office — which produced a 4-to-1 Republican majority.

In November 2001 a three-judge federal panel approved the Texas board’s Senate maps and tweaked its House maps to comply with the Voting Rights Act. The U.S. Supreme Court affirmed the maps in June 2002. The result: 19-12 GOP control of the Senate; 88-62 GOP control of the House.

Illinois appointed an eight-member, bipartisan backup commission after its legislature failed to produce maps. Still stalemated, a tiebreaking ninth member was added in September 2001, who was chosen by lottery. The Illinois constitution requires the secretary of state to pick a name actually out of an Abraham Lincoln stovepipe-style hat to decide who is the tiebreaker.

The Democrats prevailed, and 20 days later passed maps favorable to them. Republicans filed several lawsuits objecting to individual districts, and even challenged the constitutionality of the lottery. A three-judge U.S. district court panel said the tiebreaker was constitutional. The state Supreme Court and federal courts approved the maps as well. Illinois Democrats lead the House 66-52, and the Senate 32-27.

The troubles for Texas and Illinois show that commissions often do not prevent partisan battles and court challenges.

“In states where partisan divisions are close,” Wattson said, “you’re going to have trouble whether it’s a commission or not.”

North Carolina’s desire to avoid seemingly endless litigation over redistricting is unlikely to be alleviated simply by recourse to a commission. At least half of the states with such panels produced maps that were challenged in court.

New Jersey and Colorado, both somewhat evenly split between Democrats and Republicans, were scrutinized by state and federal courts. But even commission states where legislatures hold solid partisan majorities have not been able to escape the courts. Alaska, Arizona, Idaho, and Ohio, with decisive Republican advantages in the legislature, created maps that led to litigation. Alaska had to correct its House plan to pass muster with its state courts, and the Idaho Supreme Court twice rejected plans for both chambers of its legislature, before approving its commission’s third attempt.

Not all states with redistricting commissions experienced turmoil. Hawaii, where Democrats dominate, historically has had maps approved with no conflict. Arkansas also has an overwhelmingly Democratic legislature, and only a lawsuit from the state NAACP challenged districts drawn by its panel. It was dismissed.

“I think one should avoid raising expectations unduly about [commissions],” said Daniel Polsby, associate dean for academic affairs and professor of law at George Mason University. Polsby is an advocate of using neutral criteria, such as mathematical measurements of compactness, to constrain gerrymandering. A commission to enforce such rules may be useful, he said, but “you’re not going to take the politics out of politics.”

Sen. Ham Horton, a Forsyth Republican, introduced a bill to create a redistricting commission for North Carolina.

“I think it would help restore the confidence of the electorate,“ he said. “They know that they are being toyed with in the legislature.”

But would a commission eliminate rancor or partisanship? “As long as your dealing with imperfect, sinful human beings, your going to have problems,” he said.

Paul Chesser is associate editor of Carolina Journal.