Academic journal article William and Mary Law Review

Redistricting Transparency

Academic journal article William and Mary Law Review

Redistricting Transparency

Article excerpt

TABLE OF CONTENTS INTRODUCTION                                        1789 I.  STATE MODELS FOR TRANSPARENCY IN REDISTRICTING  1793     A. Redistricting Transparency Provisions in     1793        Noncommission States     B. Transparency and Redistricting Commissions   1805     C. Technological Innovation and Redistricting   1811       Transparency II. THE PERILS OF TRANSPARENCY IN REDISTRICTING     1817     A. The Problem of Transparency                  1818     B. The Problem of Redistricting Transparency    1821 III. REDISTRICTING TRANSPARENCY IN 2020: BEST       1828      PRACTICES     A. Clarify                                      1828     B. Consider Timing Carefully                    1829     C. Embrace Technology                           1831     D. Fear Technology                              1834 CONCLUSION                                          1835 

INTRODUCTION

For much of this country's history, the redistricting process--like so many other government processes--took place in proverbial (if not literal) smoke-filled rooms. (1) If legislative redistricting happened at all (which, for decades it did not, despite state constitutional commands), (2) the process included very little, if any, public oversight or input. (3) Practical realities prevented meaningful oversight. Few Americans were aware the process took place and lacked the rarified legal and technical expertise to understand redistricting's subtleties and evaluate legislative maps. (4)

In the 1950s and 1960s, public attention to inequities in redistricting, specifically malapportionment between rural and urban districts, gave rise to heightened public awareness of the issue generally. (5) Equipopulation concerns culminated in the Supreme Court's "one person, one vote" mandate in 1962, requiring that states redraw congressional and state legislative districts every ten years to account for changes in population. (6) According to public opinion polling at the time, the vast majority of members of the public (76 percent) agreed with the "one person, one vote" principle. (7) If the public conceptually absorbed and approved of the idea of "one person, one vote," intermittent polling thereafter established that the vagaries of the rest of the redistricting process remained largely removed from public consciousness. (8)

In the decades that followed Baker v. Carr, states dutifully completed the decennial redistrict. (9) But public participation and oversight of the process remained minimal. (10) State legislatures largely shrouded the redistricting process from public view and built in few public input mechanisms. (11) Cloaked processes and mounting fairness concerns later prompted reform efforts, particularly in states with direct democracy mechanisms. (12) In several states, reformers created independent redistricting commissions featuring a variety of transparency measures to make the process more open, participatory, and accountable. (13)

In the 2010 round of redistricting, many states saw an unprecedented level of public participation buoyed by a technological revolution in the way the public could engage in the process. (14) In the last round, any person with access to a computer, redistricting software, and basic knowledge of the line-drawing process could draw his or her own maps in several states using the same data legislative linedrawers used. (15)

This Article posits that these trends will be joined in 2020 by another more recent phenomenon: unprecedented levels of public interest in redistricting. Since the 2016 election and subsequent high-profile partisan gerrymandering cases in Wisconsin, Maryland, North Carolina, and Pennsylvania, public interest in the redistricting process is expanding. (16) The experience of the Virginia redistricting reform organization OneVirginia2021 is illustrative. The group formed in 2013 to press for reform amid public outcry following the 2010 round (which installed incumbent-protective maps resulting in only two seats changing party hands in the subsequent election). …

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