Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Redistricting, Electoral Competition, and Citizen Control

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October 25, 2005

Two weeks from today, Ohio voters will have the opportunity to vote on five ballot initiatives, four of them directed at changing the state's election system. As my colleague Dale Oesterle noted in his Oct. 11 Comment, by far the most transformative of these reform proposals is Issue 4, which would deprive elected politicians of the power to draw their own districts and instead create an appointed redistricting commission to draw districts according to a formula. As the hyperbole about Issue 4 heats up, it is worth taking a closer look at some of the key features of how this proposal would actually restructure Ohio politics.

The existing redistricting process is like letting corporate managers pick their friends to audit the company books. Under current law, the Ohio General Assembly controls the boundaries of all 18 Ohio congressional districts, and an apportionment board of five politicians controls the boundaries of all 33 districts in the Ohio Senate and all 99 districts in the Ohio House of Representatives. The legislature and the apportionment board are free to pack as many Republicans or Democrats as they want into any district, as long as the districts for each type of office contain equal populations, as determined from U.S. census data. As I have previously written in this column, the result has become a set of "safe" districts that protect incumbents of both parties, exacerbate political extremism, and dramatically reduce the competitiveness of the general elections. Or, as Dean Murphy, the New York Times' San Francisco bureau chief, wrote this past Sunday, "The drawing of legislative boundaries is one of the most politicized and corruptible practices in American-style government, and few people will say they approve of the gerrymandering it has unleashed."

A primary purpose of Issue 4 is to do away with these partisan and incumbent-protecting gerrymanders. Political districts ought first to reflect naturally occurring communities and geographic boundaries, and then, to the extent that additional considerations must also be taken into account in equalizing district populations, the district lines should be based on factors reasonably calculated to enhance (or at least to preserve) the strengths of representative democracy. In contrast, our current system of partisan gerrymanders - which some opponents of Issue 4 are defending as just an inevitable part of "politics" - operates to insulate incumbents from voters and to safeguard those in power from the democratic accountability that is at the heart of a healthy system of representative democracy. We should not continue to tolerate this "politics as usual" when it allows elected representatives to escape meaningful public scrutiny, any more than we would tolerate "business as usual" if it meant that corporations were not subject to independent auditing. Accordingly, doing away with partisan gerrymanders is in itself a sensible and worthy purpose.

Of course, in order to do away with the current redistricting system we must find something to replace it. Several states already are succeeding with various preferable alternatives, in which nonpartisan commissions draw political boundaries based on factors such as geographic compactness and existing communities of interest. California voters also will have the opportunity this fall to remove control over the redistricting process from the representatives themselves. But Issue 4 gives Ohio voters the opportunity to adopt a fresh approach, in which the primary criterion of the redistricting process would become the competitiveness of the districts. Above and beyond the justifications for scrapping the current system, this approach would further increase democratic accountability and revitalize our political discourse, as many presently "safe" districts would once again become "competitive" districts.

As Travis McDade has explained in a recent Election Law @ Moritz posting, under the Issue 4 redistricting system competitiveness would be measured according to a formula based on the percentage point spread between the two major parties in several recent elections. Any group of concerned citizens could submit a redistricting plan, and the redistricting commission would then apply the formula to determine the total competitiveness number of each submitted plan. The commission would then evaluate all the proposals in order to adopt the plan with the highest competitiveness number, provided that it also satisfies several other criteria, as discussed below.

Unfortunately, the impact of the competitiveness factor has been distorted by some opponents of Issue 4, who argue that it will only lead to a different type of gerrymandering, in which ridiculous boundaries continue to be drawn, this time to achieve competitive balance in as many districts as possible. For instance, under the caption "What Can Happen," one opposition group has publicized a congressional district map that it argues would be possible under Issue 4, and which includes several long, narrow districts running through dozens of Ohio counties and communities across large portions of the state. Other opponents argue that a focus on creating competitive districts will divide naturally occurring clusters of like-minded voters.

In fact, these alarmist accounts tend to overlook or distort how several additional requirements under Issue 4 constrain the competitiveness factor. Without these additional requirements, the number of potential ways that Ohio's 11,000 precincts could be arranged into 18 congressional districts, or 99 Ohio House districts, would be staggering. But the additional requirements significantly limit these possibilities. For starters, a qualifying proposal cannot divide any of Ohio's 88 counties between more than two districts. In addition, those Ohio counties large enough to contain within them an entire congressional district (or an entire Ohio House district) MUST contain an entire district. And all existing federal constitutional and statutory requirements remain applicable, including those that protect the equal opportunity of racial minority voters to elect representatives of their choice.

Even with these constraints, a number of qualifying configurations could still produce the same competitiveness number. But this fact only further enhances the strength of the Issue 4 process: If the redistricting commission has before it several qualifying plans each having the same high score, the commission must adopt the plan with the fewest county, municipal, and township fragments. As a result, the incentive will be to create competitive plans while minimizing the bizarre fragmentation that under the present system occurs purely for partisan reasons. Furthermore, after determining the prevailing plan, the commission then is empowered to make modest adjustments to it to further protect existing communities of interest, provided that the changes do not reduce the plan's overall competitiveness score by more than two points for the congressional map, and by more than four points for the Ohio House map.

Accordingly, district boundaries produced under Issue 4 are more likely to resemble a sample map just released by Issue 4 proponents, rather than to look like the hypothetical "What Can Happen" map described above. Notably, the proponents' sample lacks the distended districts sprawling most of the way across the state, and also splits in two far fewer counties than does the "What Can Happen" map. But it is also worth noting that no redistricting map can avoid a certain amount of what some might view as a gerrymandered appearance, if it must both establish districts of equal population and avoid splitting any one county into more than two districts. The important question, given these conditions, is to what end are various geographic areas being grouped together into districts.

Furthermore, it also is worth noting that the alarmist depiction of the impact of Issue 4 in fact is not much different from current reality. Indeed, the "What Can Happen" map seems similar to many of the misshapen legislative districts that now exist in Ohio and elsewhere. For instance, the current map of Ohio's 18 congressional districts, adopted by the General Assembly in 2002, itself has one long narrow district stretching from Youngstown to Wheelersburg. More fundamentally, the present redistricting process already permits the General Assembly to adopt precisely the hypothetical "What Can Happen" map - or maps even more extreme! - and to do so for far less admirable purposes than Issue 4's goal of making politicians more accountable.

Issue 4 provides a genuine method for achieving its worthy goal. Contrary to the opponents' hyperbole, it is the present system that deprives voters of any meaningful control over district boundaries, and in turn lets the politicians insulate themselves from electoral risks. In contrast, under Issue 4 ordinary citizens will themselves have the ability directly to shape the boundaries, and then will once again be able to select their representatives in more meaningful political contests. Furthermore, this restoration of electoral competitiveness need not result in a highly fragmented amalgamation of counties, municipalities, and other communities of interest. Rather, Issue 4 creates a mechanism for balancing the preservation of pre-existing boundaries with the creation of greater political competition.

At the very least, the Issue 4 proposal deserves a chance to show Ohio and the nation how redistricting can be improved to revitalize representative democracy, and in the process to show that "politics as usual" is not inevitable.