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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

A Way to Rescue Redistricting Reform

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June 6, 2006

Redistricting reform in Ohio is not dead, but it is in intensive care.

As many readers of this column already know, on May 25 Democrats in the Ohio House of Representatives defeated not only a reform proposal put forth by Republicans but also one that they, the Democrats, had developed in 2005. In the wake of this obstructionism, these House Democrats have been widely and strongly condemned by editorials in the state's major newspapers.

"Blame the Democrats," blasted the Akron Beacon Journal. "Shameful," said the Dayton Daily News. "Hypocrites," cried the Cleveland Plain Dealer.

While it is tempting to pile on this criticism, it would be more constructive to explore whether there might be a way to save the dying patient.

Fortunately, there is still time. Democrats and Republicans, in both the House and the Senate, would need to agree on a proposal by August 9 in order to put it plan before the voters in November. Summer legislative sessions have been calendared in case they are needed. So, in this instance, the old cliché is true: where there's a will, there's a way.

But is there the will?

The Democrats say they favor redistricting reform, just not the particular version put forth by the Republicans. The reason they rejected their own proposal from May 2005? They've learned a lot, they say, as a result of the Reform Ohio Now campaign in November 2005, particularly about the importance of increasing the competitiveness of legislative races (more on this in a moment).

While many are skeptical of the Democrats' sincerity-they just want their chance to gerrymander again (now that they foresee victory this fall), these skeptics say-I would prefer to take them at their word. If they are indeed willing to negotiate in good faith with Republicans in an effort to achieve genuinely bipartisan redistricting reform, this willingness should be pursued, because if both sides come to the table in search of a plan that is fair to the legitimate positions of both sides, then an agreement should be achievable by the August 9 deadline.

The key sticking point is how to prioritize between two redistricting criteria: (1) preservation of community boundaries (counties, cities, and townships); and (2) competitiveness of legislative elections. Republicans value the first over the second, whereas the Democrats prefer the second to the first.

The Democrats defeated the Republican plan crafted by Rep. Kevin DeWine because it explicitly subordinated competitiveness as a redistricting factor to the goal of keeping community boundaries intact-just as Rep. DeWine led the successful Republican campaign last fall to defeat the Reform Ohio Now proposal because it elevated competitiveness over the integrity of community boundaries.

It is evident, then, that in order for redistricting reform in Ohio to be genuinely bipartisan-and in order for redistricting reform to succeed, since neither side has the political power to unilaterally impose its own preferred version of reform-it is necessary that the reform proposal give equal weight to both competitiveness and preservation of community boundaries.

There are two different ways to give these two redistricting factors equal weight, one we can call procedural, the other substantive. The procedural way would be to leave it to the bipartisan redistricting commission to balance these two factors as the commission thinks best. Because the proposed commission has an equal number of Democrats and Republicans, with the remaining members chosen with the equal input of both parties, the commission should be trusted to balance these two factors in a way that would be fair to both parties. (Because the Democrats have not voiced any significant objection to the structure of the proposed commission, as detailed in the amended version of Rep. DeWine's plan, this procedural approach to a bipartisan compromise might be the easier version to achieve.)

The substantive way would be write a rule into the redistricting plan that would require the commission to give equal weight to competitiveness and community integrity. This rule could be specified mathematically in the following way. First, all new districting maps under consideration by the commission would be scored according to the number of noncompetitive districts they contain. Although there are different ways to measure whether a district is competitive or not, one possible measure of noncompetitiveness is a district where the average gap between the votes received by the two major-party candidates is more than five percent. (This measure is the mirror image of the measure of "competitiveness" contained in the DeWine proposal, which defined a "competitive" district as one where the average gap between candidates was not more than five percent.) Second, all these plans would also be scored according to the number of fragmented political communities they contain. In other words, each segment of a county, city, or township contained within a legislative district that was not the entire county, city, or township would count as one fragment for the purpose of this second number.

These two numbers, then, would both be converted into percentages, so that they were comparable in scale. The number of noncompetitive districts would be divided by the total number of districts, with this ratio expressed as a percentage. Likewise, the number of community fragments would be divided by the total number of communities, with this ratio also expressed as a percentage. These two percentages would be added together to produce a combined "competitiveness/community-integrity" index. The plans with the lowest score according to this index would be the ones that did the best in terms of giving equal weight to the values of competitiveness and keeping communities intact.

An alternative method of putting the two factors on the same scale might be to measure the number of Ohio citizens affected by noncompetitive districts or fragmented communities. In other words, with respect to each map, one could total the number of citizens living in noncompetitive districts and then add up the number of citizens living in communities that are fragmented under the map in question. These two sums could be combined, and the maps with the lowest combined sums would be considered best. (Using this alternative method, it would be necessary to decide whether citizens should be considered twice if they are residents of two different communities fragmented by a map: for example, if both the city and county in which they reside are fragmented. Presumably not, since the point of a citizen-based formula for giving equal weight to competitiveness and community integrity is that each individual harmed by either kind of districting "flaw" should count the same in evaluating the relative merits of different maps.)

Perhaps using statistics there are even more sophisticated ways to express mathematically the equal consideration of these two redistricting factors. But the crucial point here is that it is possible to develop at least one way to do so. Therefore, it is possible to write a rule that embodies a genuinely bipartisan compromise between the Democratic and Republican positions on redistricting priorities.

My own preference would be to leave any specific rule of this kind out of the Constitution and let the bipartisan commission develop a rule of its own, according to the procedural solution described above. But if either side is distrustful of what the commission might do in the future, then it is possible to confine the commission to a substantive rule that is genuinely bipartisan in giving equal consideration mathematically to the two values that each party ranks in the opposite order of priority.

Either version of a bipartisan compromise-procedural or substantive-would be worthy of adoption in comparison with the current situation, which permits the party in power at the time of redistricting to subordinate both community integrity and competitiveness to the illegitimate manipulation of district lines in order to secure an unfair cushion of extra seats in the legislature. Because at least one of these two versions of bipartisan compromise ought to be achievable if both parties negotiate in good faith between now and August, if it turns out that one side nixes the deal because it would prefer a chance to manipulate the map, then that party truly would deserve to be condemned by all the newspapers of the state (as well as by all other institutions that speak out on behalf of the public interest).

What is more, that party's candidates-including its candidate for Governor-would deserve the electorate's retribution at the polls for blocking genuine bipartisan reform. Between now and August, both parties' gubernatorial candidates should be forced to take a stand on a genuine bipartisan reform proposal, either procedural or substantive, that gives equal consideration to the values of community integrity and competitiveness. And because neither candidate for Governor should wish to appear on the wrong side of this reform issue, both of these candidates should lean hard on the members of their party in the House and Senate, insisting that the General Assembly reach a bipartisan compromise to benefit the people of Ohio as a whole.

If the two gubernatorial candidates can agree on the details of a redistricting reform plan, and if they both announce that adoption of this compromise plan is essential medicine for curing the state's political system of the corruption that currently plagues it-and that therefore any candidate for a seat in the General Assembly who is against this compromise plan is an enemy of true reform-it would seem hard for members of the General Assembly seeking reelection to vote against this compromise in August.

It may be a long shot. But it is worth pursuing. Otherwise, redistricting reform in Ohio is dead.