FEATURE CONTENTS I. THE EVOLUTION OF COMMISSION STRUCTURE A. Advisory Commissions B. Backup Commissions C. Politician Commissions D. The Independent Citizen Commission E. The General Trend II. ON THE FRONTIER OF REFORM: THE CALIFORNIA REDISTRICTING COMMISSION EXAMINED A. The Legacy of Failed Reform B. Purging Legislative and Political Influence C. Reaction to the CRC's Redistricting Plans III. THE ARIZONA INDEPENDENT REDISTRICTING COMMISSION REDUX A. The Path to a Commission B. The 2011 MRC Experience C. Lessons from the AIRC and CRC IV. LESSENING THE PARTISAN EDGE A. The Informal New Jersey Bargaining System B. Grafting the Bargaining System into the Independent Citizen Commission Structure V. THE PROMISE OF INDEPENDENT COMMISSIONS ASSESSED
Since Baker v. Carr, (1) state and federal courts have played a more active role in redistricting at all levels, reviewing the statutory and constitutional compliance of districting plans and serving as the redistricting body of last resort when political processes fail. The Supreme Court has taken divergent paths with respect to political and racial gerrymandering cases, outlining empirical tests for determining racial violations (2) but essentially failing to settle on a workable standard for partisan fairness. (3) Some legal scholars and political scientists continue to urge the courts to intervene more deeply into partisan and incumbent gerrymandering issues, (4) putting forward new refinements of formal redistricting criteria (5) or fairness formulas (6) for consideration. But others think this unwise and seek to lessen the current burden on the courts.
In particular, a new generation of legal scholars is more skeptical of the Court's ability to act as neutral redistricting referee and seeks instead to buffer the courts from excessive involvement in line-drawing controversies by "harness[ing] politics to fix politics." (7) The suggestions for improving redistricting politics are varied. For some, it means shaming politicians into more responsible choices through undesirable comparisons with "shadow" redistricting efforts. (8) Others believe that redistricting can be improved by greater public participation. They advocate for improving the public's capacity to develop and submit redistricting plans, (9) or for requiring that redistricting plans be approved by referenda or adopted by initiative. (10) Most radically, there are those who want to take the task of approving new district lines away from elected officials and give it to independent redistricting commissions. (11) The goal behind all these ideas is to lessen court involvement by improving the political processes that must determine the inevitable value and interest tradeoffs implicit in redistricting.
Realizing the ideal of a re-engineered redistricting politics, however, is not guaranteed for many reasons. There are many unanswered empirical questions. Do unfair comparisons with good government plans really shame elected officials into adopting better plans when political survival is at stake? Do new efforts at transparency and public input influence the contours of final district plans in any measurable way, or are they politely ignored? Do citizens know or care enough about line-drawing to act competently as redistricting deciders? Do independent redistricting commissions produce better redistricting plans than state legislatures and other types of commissions?
The Arizona and California independent redistricting commissions are the boldest departures from the traditional legislative redistricting model. They are also the natural experiments we can learn the most from because collectively they embody elements of almost every redistricting reform idea ever proposed, including greater transparency, options for third-party map submissions, citizen approval through direct democracy, careful vetting for conflict of interest, partisan and racial balance, lottery selection, a supermajority voting rule, and a proclivity towards so-called neutral criteria such as compactness, respect for city and county lines, and preserving communities of interest. By design, the combined effect of such features should ideally lead to better, less controversial redistricting plans, lessening the need for court intervention. But other features-especially supermajority rules, expedited review, the ability to trump a commission's product by exercising direct democracy options, the absence of clear criteria for staff selection, and questions about the impartiality of the so-called "independent" members-could just as easily lead to political stalemate, persistent venue shopping by losing interests, and greater public exposure to heated underlying political disagreements.
As the recent round of redistricting comes to a close, I assess the new independent redistricting commissions' performance and offer some observations about their prospects as effective court buffers. My basic points are as follows. First, commissions generally vary in their separation from elected officials and their ability to enact district boundaries autonomously. The independent citizen commissions are the culmination of a reform effort to limit the conflict of interest implicit in legislative control over redistricting. Second, to the surprise of no one who has studied redistricting closely, independent citizen redistricting commissions have not eliminated political controversy and partisan suspicions. This means that, to date, independent citizen commissions have not lessened the odds of redistricting-related litigation or the sore-loser incentive to try to get a better plan out of the courts. Third, I suggest that too much effort has been focused on the legislative conflict of interest problem and not enough on the problem of partisan tensions. Purity tests and careful vetting will never allay partisan doubts. Political actors will judge proposals by effects, not by the perception of neutrality. If the trend toward greater partisan polarization continues, supermajority rules and bipartisan composition could ultimately lead independent citizen commissions to political deadlocks, particularly if dissatisfied groups and political parties think they can get a better deal from the courts or the initiative process. This will weaken the desired buffer for the courts. Fourth, I argue that independent citizen and politician redistricting commissions should adopt a variation of the New Jersey's informal arbitration system as a means of reducing partisan stakes and encouraging coalition building among stakeholders. In the end, independent citizen and well-designed politician commissions offer the courts the best opportunity to defer to "reasonably imperfect" redistricting plans and to avoid the intrinsically political task of drawing district boundaries.
I. THE EVOLUTION OF COMMISSION STRUCTURE
Redistricting commissions in various forms have existed for several decades. Viewed over time and across states, there is an apparent evolutionary pattern leading to the creation of independent citizen redistricting commissions in reaction to the redistricting efforts by elected officials and their surrogates. Commissions broadly fall into four main types: purely advisory commissions to either the Governor or the legislature; backup mechanisms that kick into action if the legislature fails to enact a plan in a timely fashion; politician commissions; and independent citizen commissions. (12)
A. Advisory Commissions
Eight states currently have advisory commissions for either their state legislative or congressional lines. (13) They vary considerably in the degree of their independence from state legislators and other elected officials. Iowa's system, for instance, is closest to the independent citizen commission model in the sense that the legislature delegates the line-drawing to a bipartisan advisory commission and a nonpartisan Legislative Services Agency (LSA). (14) But critically, the Iowa model differs from the independent citizen commission because the legislature retains the power to approve or reject the plans produced by the LSA. For this reason, Iowa is really a "quasi-independent" commission model. It is independent in the sense that the members of the five-person advisory commission cannot hold a party position or partisan elected office, or be related to or work for members of the state legislature or Congress, and that the LSA consists of nonpartisan civil servants. It is not independent in the sense of having the power to enact a redistricting plan without legislative approval (i.e., autonomous power). Iowa's advisory commission is also bipartisan. Four commissioners are appointed by the majority and minority leaders from both houses of the legislature, and the fifth is elected to office by the other four. The bipartisan independent commission works with the nonpartisan LSA to develop congressional and legislative redistricting plans, which are then submitted to the legislature. The legislature can make suggestions for changes to the plans that it receives, but must reject the LSA's plans three times before it can substitute its own plan entirely. (15) As in the past, that did not happen in 2011. (16)
New York's advisory commission, by contrast, is closer to the pure legislative redistricting model than Iowa's. New York's commission, called a legislative task force in the statute, consists of four legislators plus two nonlegislators appointed by the majority and party leaders in both houses. The legislature can adopt, amend or ignore the commission's recommendations as it chooses. (17) In the traditional legislative redistricting model (used by thirty-seven states for their own legislatures and forty-two for Congress), new redistricting plans are developed by legislative leaders and members exclusively and are passed in the same manner as other laws. On a continuum of independence from elected officials, New York's advisory system is only different from a pure legislative redistricting method by the addition of a few nonlegislators: it is not independent in the sense of being separated from elected officials, nor does it possess the autonomous power to enact a redistricting plan.
The fatal flaw in the advisory redistricting commission model in the eyes of the reform community is that elected officials retain the power to adopt or reject the proposed new district lines. Nonetheless, some regard Iowa as a successful model because the legislature to date has largely deferred to the LSA's proposals and because the lines seem to comport well with neutral formal criteria such as compactness, respect for jurisdictional lines, and protecting communities of interest. (18) However, there is no definitive way of determining whether Iowa's success is due to its unique quasi-independent process or other factors such as the absence of substantial voting rights issues, a congenial political culture, and minimal regional or geographic variation. To this day, Iowa's system is more widely admired than copied.
B. Backup Commissions
Backup commissions, like the advisory commissions, typically lack independence from the influence of elected officials but do have the autonomous power to enact district boundaries by default. Eight states have some form of backup commissions, either for their state legislatures only (six states), (19) Congress (Indiana), (20) or both (Connecticut). (21) While the exact composition of the commissions varies considerably, in all instances the members are either elected officials themselves (often statewide officers such as the Attorney General or the Secretary of State) (22) or their designees. (23) Although the absence of initial line-drawing responsibility is a serious deficiency, the mere existence of a backup commission can be consequential nonetheless. Knowing that stalemated redistricting negotiations would throw the matter to a backup commission can alter the legislative bargaining strategies in certain circumstances. For instance, if a backup commission has a mandated bipartisan structure, as it does in Connecticut, (24) but the majority party controls both the legislature and Governor's office, then the specter of a bipartisan alternative can give the majority party leadership more leverage over individual majority party members (i.e., "hold this up by insisting on your selfish demands and we lose control of the process to the other party"). In states that designate the composition of their backup commissions by specific statewide offices, the partisan balance of the commissioners will depend on electoral fate (i.e., which parties win those offices).
C. Politician Commissions
"Politician commissions" are composed of elected officials or their designees. While they are not independent in the sense of being separated from the power and influence of elected officials, they are autonomous in the sense that they do not have to submit their plans to the legislature like advisory commissions or wait until there is a legislative breakdown like backup commissions. As the label suggests, the politician commission members are mostly elected officials or their designees. In three instances, the state courts also have a designee. (25) In five states, the politician commission draws the state legislative district lines only, (26) and in two states (New Jersey and Hawaii), their commissions draw congressional lines as well. (27) As with the backup commissions, there are two basic designs of partisan balance: allocation by office type with only the possibility of partisan balance if some of the designated offices are held by different political parties (28) and explicit party balance that mandates membership representing both the majority and minority parties. In addition, a few states (i.e., New Jersey and Colorado) require that their commissions reflect geographic balance or demographic diversity. (29)
Sam Hirsch has argued for a decade that well-designed politician commissions are a valid reform alternative, (30) and I concur with him on this point. Whereas the premise of the independent citizen commission is that improvement will come from a more disinterested redistricting body utilizing neutral formal redistricting criteria, the premise of the politician commission is that redistricting is a political enterprise that ideally leads to a bargained compromise between stakeholders. The New Jersey commission, which will be discussed in some detail later, consists of equally sized contingents of Democratic and Republican appointees chaired by a tiebreaking member selected by the commissioners themselves or the by the state supreme court if the commissioners cannot agree. The advantage of the New Jersey bargaining model is that it incentivizes both parties to compete for the tiebreaking member's vote much in the manner that electoral incentives often lead to a median voter result. In theory, the adopted plan should exhibit more moderation and consensus. In practice, the New Jersey system depends heavily on the perceived impartiality of the tiebreaking member, a feature that can be problematic. (31)
D. The Independent Citizen Commission
The last commission type is the "independent citizen" model. Its distinguishing features are the separation of the commissioners from elected officials and the ability to put district lines in place without legislative approval. The independent citizen commission design is the culmination of a reform effort aimed at …