Redistricting Reform's Dead End

By Eli Rosenbaum
Copied in its entirety from the WASHINGTON POST Saturday, 29 October, 2005; A23

On Nov. 8 California and Ohio will vote on far-reaching reforms of their state redistricting laws. In the wake of Rep. Tom DeLay's infamous map-making antics before the 2004 elections, such efforts have been widely praised, even by this paper. Unfortunately for reform advocates, however, the notion of independent redistricting commissions doesn't live up to its billing. In practice, such commissions have not been nonpartisan, apolitical or effective.

Today six states use autonomous, bipartisan panels -- similar to those proposed for California and Ohio -- to draw and approve their congressional and state legislative maps. For state legislative redistricting, commissions make more sense, since the alternative is state legislators drawing their own districts, a clear conflict of interest. But with regard to congressional redistricting, in the three such states that have more than two House seats -- Arizona, New Jersey and Washington -- the performance of these panels has been less than encouraging.

Reformers argue that taking redistricting authority away from state legislatures would make congressional elections more responsive and competitive. Yet in the past two House election cycles, every incumbent in New Jersey, Washington and Arizona won. Since Arizona's panel was created in 2000, the average margin of victory for House races has skyrocketed: In 2004 every district in the state was decided by a margin of more than 20 percentage points. New Jersey and Washington, where panels were first used after the 1990 Census, tell similar stories. By the end of the 1990s, average margins of victory in both states were just as high as before the advent of their independent commissions, and there was almost no partisan turnover.

Of course the existence of bipartisan panels does preclude the sort of partisan gerrymandering that occurred in Texas, where the intent was to undermine the opposition. But Texas is the redistricting exception, not the rule. Much more often -- as in Indiana and New Jersey in the 1980s -- attempts to unseat minority-party incumbents through redistricting are unsuccessful. It's worth remembering that the first gerrymander -- carried out by Gov. Elbridge Gerry of Massachusetts when he drew a district so winding it was said to resemble a salamander -- failed to win the seat in question for his party.

So why don't independent commissions work? One big reason is that, as the current commissions demonstrate, equal representation on the panel for both parties tends to favor the status quo. The commission is indeed bipartisan, not nonpartisan, and each party's delegates on the panel are closely connected to their state parties and politicians. To avoid gridlock and approve a plan, commissioners must draw a map that is pleasing to both sides, and of course nobody on either side really wants a competitive district. Political scientists even have a name for this type of redistricting scheme: bipartisan gerrymandering.

The fact that they favor the status quo highlights another danger posed by independent panels: their independence. If voters are unhappy with a gerrymander enacted by the legislature, they can at least vote their state representatives out of office. In contrast, if citizens are upset with a commission's plan, they have nowhere to turn. The panel is the final district-drawing authority, and is defined as such by the state's constitution. Especially after electoral results become even more calcified, this can hardly be seen as democracy in the voters' hands.

Fear of giving unaccountable bodies control over elections is not an abstract concern. In Washington state, open-meeting laws failed to ensure that the commission's deliberations were truly open: Panelists got around the laws simply by conducting their most critical negotiations one-on-one. As the commission's independent chair put it, "The product that was developed was essentially done behind closed doors." In New Jersey, the commission worked closely with the state's congressional delegation, even scrapping one proposed map because it failed to win the support of key Democrats.

As the independent chair of Arizona's commission says, "What was promoted and sold to the public was not necessarily what was intended. . . . If your goal is competitive districts, I don't think this helps you get down that road very far."

More important, political scientists now theorize that Americans are becoming increasingly segregated on the basis of partisanship. The more this is so, the more likely it is that compact, contiguous districts will inevitably produce safe seats for both parties, for reasons having nothing to do with gerrymandering. Whoever does the redistricting, polarization in Congress may be increasingly unavoidable. Reformers would do well to spend more time exploring the rise of the incumbency advantage and geographic polarization and less time lobbying for commissions that will have no effect on either of these trends.

The writer is a graduate student in a joint program of Harvard's law school and its John F. Kennedy School of Government.

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