Redistricting Commissions: A Better Political Buffer?
Cain, Bruce E., The Yale Law Journal
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. …