Reinvigorating Representative Government
Effective representative government requires elections in which voters can exercise meaningful choice among political alternatives and can hold incumbents accountable for their performance in office. Unfortunately, in the United States political gerrymandering has promoted uncompetitive elections that insulate office-holders from electoral accountability. In doing so, it has significantly reduced the effectiveness of elections as a tool for popular rule. Thus, if one wishes to restore effectual representative government, one must address the process by which legislative districts are drawn.
The Problem
The Problem of Political Gerrymandering
Recent political history in California illustrates the problem of political gerrymandering. In 2004 in California, every incumbent running for reelection to Congress or to the state legislature was elected, and no seats changed party hands. Although extreme, the results in California reflect a nationwide pattern. In the 2000 elections, 25 percent of incumbents in the House of Representatives ran virtually unopposed, and in 2004 scholars concluded that only 30 congressional races-most involving open seats–could be classified as competitive. The absence of meaningful choice for voters reflects a simple fact. In most states, state legislators draw up districts for both houses of the state legislature and for the House of Representatives; and armed with advanced computers and access to sophisticated political and ethnic databases, they can redistrict state legislatures and draw the boundaries of House districts to seek partisan advantage and to determine election outcomes. They also create “sweetheart” districts for incumbents, thereby ensuring that changes in public opinion do not result in significant legislative turnover. At one time it could be said that constituents chose their legislators. Today, the reality is that legislators are choosing their constituents, sometimes even in mid-decade.
This pervasive legislative self-dealing has several detrimental effects. First, rigged districts undermine representative government. Voters can ensure accountability only if they have a meaningful choice among candidates, but districts with predetermined outcomes deprive voters of such choice. This frustrates voters and discourages political participation. It also encourages citizens to turn to other mechanisms for controlling legislators, such as term limits and the initiative. Second, partisan gerrymandering ensures that the make-up of legislatures fails to reflect fairly the partisan division within the electorate. In particular, gerrymandering means that the minority party typically wins fewer seats than would be expected based on its percentage of the total vote in the state. Third, districting abuses impede the flow of political talent into Congress and state legislatures, because districting that protects incumbents blocks opportunities for promising local leaders to run for office. And predetermined outcomes in legislative races make it difficult to recruit highly qualified opposition candidates. Finally, partisan gerrymandering encourages extreme partisanship and extreme positions. Safe seats mean that legislators do not have to seek the political middle, because their electoral prospects do not depend on support from independent voters and members of the opposing party. Rather, legislators and legislative candidates are driven to appeal to the most ideological members of their own parties, because those partisans turn out disproportionately in primaries, the only important races in a gerrymandered system.
Recent political history in California illustrates the problem of political gerrymandering. In 2004 in California, every incumbent running for reelection to Congress or to the state legislature was elected, and no seats changed party hands. Although extreme, the results in California reflect a nationwide pattern. In the 2000 elections, 25 percent of incumbents in the House of Representatives ran virtually unopposed, and in 2004 scholars concluded that only 30 congressional races-most involving open seats–could be classified as competitive. The absence of meaningful choice for voters reflects a simple fact. In most states, state legislators draw up districts for both houses of the state legislature and for the House of Representatives; and armed with advanced computers and access to sophisticated political and ethnic databases, they can redistrict state legislatures and draw the boundaries of House districts to seek partisan advantage and to determine election outcomes. They also create “sweetheart” districts for incumbents, thereby ensuring that changes in public opinion do not result in significant legislative turnover. At one time it could be said that constituents chose their legislators. Today, the reality is that legislators are choosing their constituents, sometimes even in mid-decade.
This pervasive legislative self-dealing has several detrimental effects. First, rigged districts undermine representative government. Voters can ensure accountability only if they have a meaningful choice among candidates, but districts with predetermined outcomes deprive voters of such choice. This frustrates voters and discourages political participation. It also encourages citizens to turn to other mechanisms for controlling legislators, such as term limits and the initiative. Second, partisan gerrymandering ensures that the make-up of legislatures fails to reflect fairly the partisan division within the electorate. In particular, gerrymandering means that the minority party typically wins fewer seats than would be expected based on its percentage of the total vote in the state. Third, districting abuses impede the flow of political talent into Congress and state legislatures, because districting that protects incumbents blocks opportunities for promising local leaders to run for office. And predetermined outcomes in legislative races make it difficult to recruit highly qualified opposition candidates. Finally, partisan gerrymandering encourages extreme partisanship and extreme positions. Safe seats mean that legislators do not have to seek the political middle, because their electoral prospects do not depend on support from independent voters and members of the opposing party. Rather, legislators and legislative candidates are driven to appeal to the most ideological members of their own parties, because those partisans turn out disproportionately in primaries, the only important races in a gerrymandered system.
The Solution
Craft a Solution to Partisan Gerrymandering
The key to combating partisan gerrymandering is reforming the process of redistricting. The Center’s project will focus on three questions basic to reform: (1) who should draw the lines for legislative districts? (2) what criteria should guide how they are drawn? and (3) if state legislatures are to be relieved of redistricting authority, how might that be accomplished?
In terms of drawing district boundaries, reformers in recent years have favored assigning this responsibility to independent commissions. The Center will investigate how effective these commissions have been, in comparison with state legislatures and state courts, in reforming districting and reinvigorating representative government. It will also assess alternative designs for those commissions, because currently commissions differ markedly in their selection and membership. In Arizona, for example, the initiative in 2000 that established the Arizona Independent Redistricting Commission designates the same panel that reviews the qualifications of potential judicial nominees to review the qualification of potential appointees to redistricting commission. From the pool of candidates that survives this scrutiny, legislative leaders in the state’s House and Senate choose two Republicans and two Democrats, and those four in turn choose a registered Independent to chair the commission. In Maine, in contrast, legislative leaders select commission members from sitting legislators without a preliminary vetting and also select the two public members, who in turn appoint a third public member. Therefore it is necessary to consider the advantages and disadvantages of the selection systems that have been instituted, as well as to identify alternatives to current selection systems.
The Center will also address the criteria to be used in redistricting. Federal law-“one person, one vote” and the Voting Rights Act-necessarily provides a baseline for redistricting efforts. However, the U.S. Supreme Court made clear in Vieth v. Jubelirer (2004) that it will play little role in addressing partisan gerrymandering, so the primary law affecting legislative districting will be state law. The factors to be considered in redistricting under state law may include: ensuring competitiveness within districts, providing opportunities for minority representation, securing partisan fairness, giving representation to communities of interest, respecting geographical and political boundaries, and ensuring compactness and contiguity in the design of districts. The Center will consider to what extent these goals are compatible, and insofar as they are not, offer guidance as to how to prioritize or balance these goals.
Finally, because legislators are likely to resist relinquishing the power to draw district lines, the Center will examine how one might go about instituting reform. In some instances, this will require the amendment of state constitutions. Even if a commission plan or other mechanism cannot be instituted, there may be ways to control self-dealing by the state legislature in districting. Three earlier Center publications-State Constitutions for the Twenty-first Century: The Politics of State Constitutional Reform (2005); “Getting from Here to There: Twenty-first Century Mechanisms and Opportunities in State Constitutional Reform,” Rutgers Law Journal (2005); and Constitutional Politics in the States (1996)–have explored in general terms alternative paths to constitutional reform. This project will bring this expertise to bear on the task of redistricting reform.
The key to combating partisan gerrymandering is reforming the process of redistricting. The Center’s project will focus on three questions basic to reform: (1) who should draw the lines for legislative districts? (2) what criteria should guide how they are drawn? and (3) if state legislatures are to be relieved of redistricting authority, how might that be accomplished?
In terms of drawing district boundaries, reformers in recent years have favored assigning this responsibility to independent commissions. The Center will investigate how effective these commissions have been, in comparison with state legislatures and state courts, in reforming districting and reinvigorating representative government. It will also assess alternative designs for those commissions, because currently commissions differ markedly in their selection and membership. In Arizona, for example, the initiative in 2000 that established the Arizona Independent Redistricting Commission designates the same panel that reviews the qualifications of potential judicial nominees to review the qualification of potential appointees to redistricting commission. From the pool of candidates that survives this scrutiny, legislative leaders in the state’s House and Senate choose two Republicans and two Democrats, and those four in turn choose a registered Independent to chair the commission. In Maine, in contrast, legislative leaders select commission members from sitting legislators without a preliminary vetting and also select the two public members, who in turn appoint a third public member. Therefore it is necessary to consider the advantages and disadvantages of the selection systems that have been instituted, as well as to identify alternatives to current selection systems.
The Center will also address the criteria to be used in redistricting. Federal law-“one person, one vote” and the Voting Rights Act-necessarily provides a baseline for redistricting efforts. However, the U.S. Supreme Court made clear in Vieth v. Jubelirer (2004) that it will play little role in addressing partisan gerrymandering, so the primary law affecting legislative districting will be state law. The factors to be considered in redistricting under state law may include: ensuring competitiveness within districts, providing opportunities for minority representation, securing partisan fairness, giving representation to communities of interest, respecting geographical and political boundaries, and ensuring compactness and contiguity in the design of districts. The Center will consider to what extent these goals are compatible, and insofar as they are not, offer guidance as to how to prioritize or balance these goals.
Finally, because legislators are likely to resist relinquishing the power to draw district lines, the Center will examine how one might go about instituting reform. In some instances, this will require the amendment of state constitutions. Even if a commission plan or other mechanism cannot be instituted, there may be ways to control self-dealing by the state legislature in districting. Three earlier Center publications-State Constitutions for the Twenty-first Century: The Politics of State Constitutional Reform (2005); “Getting from Here to There: Twenty-first Century Mechanisms and Opportunities in State Constitutional Reform,” Rutgers Law Journal (2005); and Constitutional Politics in the States (1996)–have explored in general terms alternative paths to constitutional reform. This project will bring this expertise to bear on the task of redistricting reform.