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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.

Free & Fair

Is Bipartisan Redistricting Reform Achievable?

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May 19, 2006

Democratic Party leaders in Ohio say they favor bipartisan redistricting reform but they have raised questions about details of the proposal put forward by Rep. Kevin DeWine and other Republican leaders in the state.

Here are some suggested modifications of the DeWine proposal that address the Democrats' concerns. If Republicans were to embrace these modifications-as they should-and the Democrats were still to object to the reform proposal, then one would have to question whether Democrats were truly committed to reform.

First, a vote of four members of the redistricting commission should suffice to adopt a map or the criteria that the commission establishes for choosing a map, as long as one of the four votes comes from one of the three so-called "neutral" members of the commission. (These three "neutral" members are selected by the other four, two of whom are appointed by the majority leadership in the General Assembly and two by the minority leadership.) This voting rule-that four is enough as long as one vote comes from a neutral commissioner-is a change from the DeWine proposal, as introduced, which would require five votes to adopt a map, including one vote representing the majority in the legislature and one vote representing the minority in the legislature, as well as one neutral vote.

The concern has been raised, not only by Democrats but also by the League of Women Voters and other independent "good government" groups, that the five-votes requirement in the current proposal might cause the commission to deadlock without being able to adopt a redistricting map. Fear of deadlock is a legitimate concern, as it has occurred in other bodies elsewhere in the country that have been structured to be bipartisan. The four-votes modification suggested here would substantially reduce this risk.

Moreover, the four-votes modification would assure that any map adopted by the commission would receive support from either at least one of the four partisan appointees or a majority of the neutrals whose appointments were equally acceptable to both sides. In other words, a map could be adopted any of the following combinations: 1 D, 3 Ns; 1 R, 3 Ns; 1D, 1R, 2Ns; 2Ds, 2 Ns; 2Rs, 2Ns ("D" being Democrat, "R" Republican, and "N" means neutral). Any of these combinations assures that the map is not a one-party gerrymander designed to maximize that party's advantage over the opposing party.

True, it is possible that both Democrats, or both Republicans, on the commission might oppose a map adopted by four votes, over their objections. But if the two Democratic commissioners, or the two Republican commissioners, are united in their opposition to the proposal, yet two out of the three neutral commissioners support the map, the most likely explanation is that the partisan objection is strategic, based on a preference for a different map that would increase that particular party's advantage. After all, both parties equally approved the three neutrals; therefore, if two of those neutrals are now favoring a map supported by the other side, the most likely explanation is that the map that receives four votes is on balance fairer to both parties than the map these two objecting partisans would prefer.

Additionally, the four-votes modification suggested here, with its requirement that one of the neutrals supports the map, guarantees that the two Democrats and the two Republicans cannot "gang up" on the three neutrals to impose a plan that would favor the incumbents of both parties, at the expense of the public at large.

Although much lower, the risk of deadlock does not completely disappear if this four-votes modification were adopted. This residual risk leads me to my next suggestion.

Second, the existing language of the DeWine plan should be clarified to make explicit that, in the event that the seven-member commission is deadlocked and unable to approve a map, the only authority that the Ohio judiciary (including the Ohio Supreme Court) has is to order the commission to resolve its intransigence, so that the commission complies with its constitutional duty to adopt a map. The Ohio judiciary would have no authority to decree the adoption of any particular map. But a judicial order that the commission resolve its deadlock could be backed up with the threat of significant sanctions, including contempt of court if the commissioners fail to do so. Whether this judicial order is called a "mandamus" or something else, the point is that the judiciary should have the purely procedural authority to insist that the commission carry out its constitutional obligation to adopt a map, but the state judiciary has no substantive authority over the content of the map itself. (Federal courts, of course, would retain their authority to require substantive compliance with federal law, including the Voting Rights Act, a point to which I'll return.)

The possibility that the four partisan commissioners might be deadlocked over the selection of the three neutrals can be handled, without judicial intervention, as follows. If they cannot agree on three names by a particular date, each side should be required to submit six names of individuals they would find acceptable. Of the twelve names submitted, three will be chosen randomly at a public meeting. Risk of losing this lottery should be sufficient incentive for both sides to agree on three names. But if one party for strategic reasons wants to force the other party into this gamble, the other party should be able to avoid the gamble by selecting two names from the opposition's list of six as well as one name from its own list. (If each side can find two acceptable names from the other side's list, yet they are unable to settle upon three names by consensus, then the lottery to be conducted is a random selection of three names from this narrowed group of four names.)

Third, the existing DeWine proposal should also be clarified to make explicit that the commission's first obligation, when considering what map to adopt, is to comply with the U.S. Constitution and any Acts of Congress adopted pursuant to thereto, including the Voting Rights Act. Adding this explicit reference to the Voting Rights Act, as well as the U.S. Constitution itself, will aid in causing the commission to focus first on its obligation to comply with federal law, thereby reducing the likelihood of successful litigation in federal court over the map that the commission adopts.

Fourth, and finally, the DeWine proposal should be modified to leave to the commission itself, rather than specifying in the state's constitution, how to prioritize among the following legitimate redistricting factors: (a) compactness; (b) protection of existing political boundaries; and (c) competitiveness. The constitution appropriately can confine the commission's deliberations, after satisfying the requirements of federal law, to these three factors-and thus preclude the commission from considering any partisan advantage or other inappropriate criteria. The constitution can also mandate that all districts be contiguous. But how to prioritize among these three legitimate factors is an issue upon which individuals devoted to the public good can reasonably disagree and upon which public opinion might change from one decade to the next. Therefore, the constitution should permit the commission to address this issue when it convenes each decade to adopt a new map. Likewise, the constitution should permit the commission to adopt its own metric for how to measure compliance with each of these three legitimate districting criteria.

Consequently, before the seven-member commission invites the public to submit proposed maps for its deliberations, the commission should conduct a public process by which it considers proposals for how to measure each of these three legitimate factors and how to prioritize among them. After considering those proposals, the commission should use the same four-votes rule described above to adopt its own standard for the evaluation of maps. This standard will set forth the commission's metrics for measuring each of the three legitimate districting factors and will establish how the commission will prioritize these factors. The commission will publicly announce its adopted standard and then invite public submission of maps to be evaluated pursuant to this standard. After submission of and deliberation upon these proposed maps, the commission will choose the map that best conforms to its previously announced standard.

If modified in these four ways, the DeWine proposal addresses the concerns raised by Democrats and should be acceptable to both sides. A fair proposal that gives neither party an advantage in the decennial districting process, it should be adopted by the General Assembly on a bipartisan basis and sent to the people for their approval on the November ballot.

As modified, this proposal does not invite additional litigation compared with the status quo. On the contrary, by confining the state judiciary to solely the procedural task of ensuring that the commission does its job, and by reminding the commission that its first obligation is to satisfy the requirements of federal law, this proposal as modified will reduce the likelihood of successful litigation and therefore discourage all but spurious lawsuits. Most importantly, this proposal will cure the cancer of partisan gerrymandering and, accordingly, must be pursued vigorously for the good of the body politic as a whole.

If Democrats continue to resist bipartisan redistricting reform, even if Republicans are willing to accept these modifications and show a willingness to negotiate in good faith, then it will be fair to characterize these recalcitrant Ohio Democrats as enemies of the public good.