Testimony of Justin Levitt before the Illinois Senate Redistricting Committee

Justin Levitt provides an overview of the need for reform in Illinois and highlights some important components effective reform should incorporate.

October 13, 2009

Testimony
of
Justin
Levitt, Counsel
Brennan
Center for Justice at NYU School of Law

Before
the
Illinois
Senate Redistricting Committee

October
13, 2009

To download this testimony as a PDF, click here



.
  

Good morning, distinguished members
of the Committee.  I thank you for the
opportunity to speak at this very important hearing, and for your accommodation
in allowing me to join you from a distance.  My name is Justin Levitt, and I am an attorney
at the Brennan Center for Justice at NYU School of Law.  The Brennan Center is a non-partisan organization
that unites scholars and advocates in pursuit of a vision of inclusive and
effective democracy.  Toward that end,
the Center's Democracy Program promotes reforms that eliminate barriers to full
and equal political participation and that foster responsive and responsible
governance.  

In particular, the Brennan Center has been at the
forefront of research on redistricting procedures, both in the Midwest and
across the country.  We have extensively
studied redistricting practices nationwide, analyzed both successful and
unsuccessful attempts at redistricting reform, and produced materials to
educate the public about the benefits and consequences of various redistricting
methods.  We have testified with respect
to proposed redistricting legislation, and assisted advocates and elected
officials in drafting such legislation. 
In addition, we have participated as amici
curiae
in many of the major cases addressing the use of redistricting for
partisan gain or at the expense of minority voters.

We are
very pleased that the Committee has chosen to scrutinize publicly how Illinois draws
the boundaries for its state legislative - and, we hope, congressional -
districts.  We commend you for
prioritizing this critically important process, and for airing this debate
before the next redistricting cycle is fully upon us.  We also commend the Paul Simon Institute,
among others, for recognizing the importance of the issue, for drawing public
attention to opportunities for change in the process, and for understanding the
benefits of a fundamentally pragmatic approach.   We urge the Committee to ensure that
meaningful follows in a manner as timely as these hearings.

Today, I hope to briefly lay out an
overview of the need for reform and some of the more important components that,
in our review, effective reform should incorporate.  I will describe the structure of the current
system by which Illinois district lines are drawn, noting especially the
potential for legislators to influence their own districts' boundaries, and the
risks of such a system.  I will also
briefly lay out alternative structures for drawing district lines that are in
place in other states, some of which may prove to be useful models.

I will then propose several
specific elements that I suggest should guide you in considering reform,
directed at addressing the concerns above: meaningful independence, meaningful
diversity, meaningful guidance, and meaningful transparency.  We feel strongly that there is no single
redistricting archetype that fits all 50 states - a system for Illinois must
consider the unique demographics and political issues that confront Illinois
voters.   Still, we hope that the basic
principles we focus on today can provide useful guidance as your deliberations
continue.

The Illinois redistricting
system

Each state's redistricting system
is slightly different, in both design and implementation.  As you know, in Illinois, the state
legislature presently has primary responsibility for drawing the lines of both
state legislative districts and Congress, subject to gubernatorial veto.  For state legislative districts, if the
legislature cannot agree on a plan by June 30, a "backup commission" is
convened to take over the process: the commission consists of one legislator
and one non-legislator chosen by each of the legislative leadership.  If this commission does not produce a plan by
August 10, the Supreme Court submits the names of two individuals from
different political parties to the Secretary of State, who randomly selects one
of these nominees to become the commission's tiebreaker.  The random selection process was intended to
force compromise, but in each of the last three cycles, both legislature and
commission have deadlocked, and the parties have preferred to take a chance on
total control - with the resulting districts reflecting those partisan
ambitions.

Moreover, there are few constraints
on those who draw the lines beyond the particular process outlined above.  Congressional districts are subject only to
the particular limitations of federal constitutional and statutory law.  In addition to federal limitations, the
Illinois constitution requires that state legislative districts be contiguous
and "reasonably compact," though the latter standard has largely remained
undefined and unenforced.

The net effect of the particular
manner in which Illinois' redistricting system has developed is that, as you
know, many state legislators become extensively involved in determining the
bounds by which they and their congressional colleagues are elected.  Moreover, this process unfolds in ways not
readily transparent to the public.

Such a process contains substantial
flaws.  The process of drawing
legislative lines affects the interests of individual legislators, the
interests of political parties, and the interests of represented communities -
or, put differently, the public good. 
When legislators personally are able to set the lines by which they are
elected, there arises a natural temptation to conflate the three, even when
those officials act with the purest of motives. 
That is, even conscientious elected representatives might be tempted to
draw electoral lines that insulate their districts from effective challenge and
promote their party's fortunes - because they believe themselves and their
party best able to serve their constituents.

Such temptations - whether fueled
by self-interest or zealous advocacy - weaken the democratic process and blunt
the voice of the electorate.  By drawing
district lines to promote individual and party security, legislators with a
hand in the process become enmeshed in the task of building districts based on
favored constituents and disfavored ones. 
That is, representatives get into the business of choosing their constituents,
rather than the other way around. 

Just as important is the way that
this process appears to the public.  Even
if some individuals choose to forgo self-interested temptation, a system that
encourages legislators to design their own districts fosters the public
perception that improper self-dealing is at work.  

The appearance of rampant
self-interest is driven, in part, by visible outcomes: districts are drawn in
bizarre shapes, and elections are won with overwhelming margins.  Neither factor would likely be as worrisome,
alone or together, if legislators were not themselves responsible for drawing
their own districts.  However, with the
structural opportunity for self-interest, it looks to many as if the contest
has been rigged. 

First, consider
the appearance of Illinois' districts. 
In the abstract, a district's shape yields little information about the
population therein.  Communities
conducive to coherent representation rarely emerge in neat geometric
patterns.  Moreover, fair and effective
representation, particularly for minority voters, sometimes calls for combining
pockets of specific populations into irregularly shaped districts.  However, some of Illinois' districts, far
from areas impacted by the Voting Rights Act, take twists and turns so strange
that it appears that the most compelling reason for the district's shape is
simple electoral advantage.  If
legislators were not themselves involved in constructing the districts, the
shapes themselves would give rise to less suspicion.  But when legislators draw districts in a
process lacking any meaningful transparency, and the districts zig and zag for
no obvious reason to produce lopsided majorities, it is natural to assume that
the districts are intentionally designed to undermine effective political
challenge.

Second, Illinois' recent electoral
outcomes also feed the intuition that the districts are drawn for
self-protection.  After the last
redistricting, for example, 30 out of the 59 state Senate races were not
contested by one of the major parties in the 2002 elections.  This is worth repeating: half of the seats in the state Senate were not even challenged
after the last redistricting, by either Republicans or Democrats.  This is at least in part because, on average,
those 30 districts were drawn so that they leaned toward one party or the other
by an average of more than 30 percentage points.  With districts so heavily slanted, it is not
surprising that it is difficult to find candidates willing to mount a
meaningful challenge.

As with district shape, the lack of
effective competition might not be quite as disturbing if legislators were not
drawing their own lines.  In many cases,
constituents are undoubtedly pleased with the representation they receive, and
return incumbents to office by healthy margins. 
And in order to represent particular distinctive communities, it will
often be necessary to link like-minded voters together, which will usually
result in districts that are less competitive. 
Moreover, legislators like Senator Syverson have shown that it is
certainly possible to win an election in districts slanted toward the opposing
party, even outside of the portions of southern Illinois where party
affiliation is more flexible.  Still,
half of the Senate districts without so much as a challenger is an alarming
rate for those concerned with democratic choice.  When legislators are in charge of the
process, it is difficult to explain the lopsided district composition and the
resulting lopsided elections in terms that put the public interest
foremost. 

Alternatives

There are many alternatives to
the status quo already successfully implemented in other states.  Some of these alternatives concern the
process by which individuals are selected to draw district lines, or guidelines
governing where the lines are to be drawn, or both.

Who draws the lines

Five states, for
example, employ an advisory commission to help advise the legislature on where
state legislative lines should be drawn. 
The most widely analyzed of these is in Iowa, where the legislature's
bureau of nonpartisan civil servants, normally responsible for legal drafting,
budget analysis, and technical advice, is charged with preparing drafts of
redistricting plans.  This bureau
prepares a draft redistricting map, which the legislature may accept or reject
as is, but may not modify.  If the map is
rejected, the nonpartisan bureau will try again, with another opportunity for
the legislature to vote up or down without change.  If the legislature rejects two sets of plans,
and the nonpartisan bureau returns with a third map, the legislature is then,
on the third try, able to accept, reject, or modify the plan it has given.  Since the procedure was put in place in 1980,
the Iowa legislature has not used its authority to draw its own maps from
scratch on the third attempt.

Other states put
even more distance between individual legislators and the redistricting
process.  For example, seven states -
Arkansas, Colorado, Hawaii, Missouri, New Jersey, Ohio, and Pennsylvania - draw
state legislative districts with so-called "politician commissions," distinct
from the legislature but on which elected officials may serve as members.[1]  Each is designed differently.  In Arkansas and Ohio, specific elected
officials have designated seats on the commission.[2]  In the other states, the legislative or party
leadership nominates commissioners, usually with balanced numbers from each
party, and sometimes with a role for the Governor or Chief Justice of the state
Supreme Court to select nominees or appoint additional commission members.

Six other states -
Alaska, Arizona, California, Idaho, Montana, and Washington - draw state
legislative districts using an independent commission, with regulations
limiting direct participation by elected officials.[3]  No member of these commissions may be a
legislator or public official; each state also prohibits commissioners from
running for office in the districts they draw, at least for a few years after
the commission completes its work.  Some
of the states further limit commission members' direct link to the legislature:
Arizona and California, for example, also bar legislative staff from serving on
the commission; California, Idaho, and Washington bar lobbyists from serving on
the commission as well. 

Though each of
these states attempts to ensure that commissioners are not beholden to
particular legislators, that does not mean that the legislature has no role in
the process: each of the above models preserves some ability for either the
legislative leadership or the legislature as a whole to select individual
commissioners or modify commission lines on the margin.  The objective is not to remove politics
entirely from the process, but rather to insulate politicians with the most
direct self-interest from the appearance that their own personal or partisan
fortunes are put ahead of the well-being of their constituents.

Where the lines are
drawn

Other states also present different
models for giving guidance to whichever entity is tasked with drawing the
district lines, beyond the bare constraints of federal law.  Illinois currently presents few articulated
criteria for the redistricting process, beyond what federal law requires.  This is decidedly outside of the national norm.

Twenty-four
states, for example, ask redistricting bodies drawing state legislative
districts to consider preserving "communities of interest" - communities that
share common features relevant to the legislative enterprise.[4]  This represents an important means to enhance
vigorous representation, making it easier for legislators to speak for distinct
groups of constituents with shared preferences, rather than collections of
voters with little in common.  Such
communities are flexibly defined: in Kansas, for example, map drawers are asked
to consider "[s]ocial, cultural, racial, ethnic, and economic interests common
to the population of the area, which are probable subjects of legislation."[5]  Montana's guidelines are similarly broad: "Communities
of interest can be based on trade areas, geographic location, communication and
transportation networks, media markets, Indian reservations, urban and rural
interests, social, cultural and economic interests, or occupations and
lifestyles."[6]  Alabama adds the helpful reminder that "[it]
is inevitable that some interests will be recognized and others will not, [but]
the legislature will attempt to accommodate those felt most strongly by the
people in each specific location."[7]

There are also several coarse
proxies for representing communities of common interest that frequently appear
in state redistricting guidelines.  For
example, forty-two states require some accounting for political boundaries -
county, township, municipal, or ward lines - in state legislative districts;
eighteen states ask the same for congressional districts.  Municipal boundaries, in particular, often
approximate shared legislative interests; depending on the state, county or
township lines may have a similar function. 
Most often, state laws that 
require consideration of political boundaries in redistricting leave
flexibility in the mandate, instructing the redistricting body to maintain
political boundaries "to the extent practicable." 

Almost as many states - thirty-six
in all, including Illinois - use an even rougher proxy for common interest, by
requiring their legislative districts to be reasonably "compact"; seventeen
states ask that congressional districts be compact as well.  Here too, state law is usually flexible,
without a precise definition of "compactness." 
Most courts and commentators understand compactness to refer to a
district's geometric shape; in general, a district in which constituents live more
or less near each other is considered more compact than one in which they do
not, and a district with a regular convex shape is considered more compact than
one with multiple extended tendrils. 

When compactness is further
specified, as it is currently in six states, proposed measures can generally be
sorted into three categories.  Arizona
and Colorado, for example, elevate the importance of contorted boundaries, and
focus on the district's perimeter. 
Michigan and Montana instead focus on dispersion, or the degree to which
a district spreads from a central core. 
California elevates the importance of citizen housing patterns in
relation to the district's boundaries, giving more flexibility for district
tendrils if they exist in sparsely populated areas.  And Iowa embraces both a boundary measure and
a dispersion measure, without establishing a preference between them.

Fourteen
states, including Illinois and many of its Midwest neighbors, supplement the
criteria above with a "nesting" requirement, tying the district lines of a
state's two legislative houses to each other.  
In states with a nesting requirement, the districts of the upper house
are constructed by aggregating multiple lower house districts (usually two or
three), or the districts of the lower house are constructed by subdividing each
upper house district.  In contrast,
without nesting, the districts of each legislative house are wholly independent;
they may follow the same boundary lines, but they need not do so. 

In addition to
the above criteria, several states attempt to limit the impact of partisanship
in the redistricting process.  Nine
states - California, Delaware, Hawaii, Iowa, Idaho, Montana, Nebraska, Oregon,
and Washington - have prohibited their redistricting bodies from drawing state
legislative districts in order to "unduly" favor a candidate or political
party; all but California do the same for Congress.[8]  Five states - Arizona, California, Iowa, Idaho, and Montana - attempt to
implement the restriction by precluding the consideration of the residence of
an incumbent in drawing district lines. 
Arizona and Washington instruct their redistricting bodies to design
districts so that competition is affirmatively encouraged, when practicable,
and when doing so would not detract from other state priorities.[9]

Several of the
states above also limit the use of further political data, which I understand
has received significant attention in some proposals proffered in Illinois,
even to the extent of allowing a computer to draw lines without regard for
partisanship.  Iowa, Idaho, and Montana
purport to preclude the use of partisan voter history in drawing districts; New
Jersey allows the use of voter history but declares that it may not support
deviations from other districting principles; and Arizona states that "[p]arty
registration and voting history data shall be excluded from the initial phase
of the mapping process but may be used to test maps for compliance" with other
priorities.[10] 

In considering
limits on the use of partisan voter data, it is important to remember that it
will almost always be necessary to consider such data in assessing
responsibility under the Voting Rights Act. 
Only with partisan voter history is it possible to tell if racially
polarized voting exists to an extent that incurs liability under the Act; if
so, only with partisan voter history is it possible to know whether a
particular remedy will likely be effective. 
The Voting Rights Act's mandate will therefore supersede state law
restricting the use of political data, at least in regions where minority
populations present the possibility of Voting Rights Act obligations.

It is also worth noting that
restricting partisan voter data does not result in "neutral" partisan
consequences, even if it is assumed that those who draw the lines do not
understand the partisan implications of their decisions, with or without
precise data.  Every decision about where
to draw the lines will have partisan consequences, most of which are
predictable.  I know that you have
already heard testimony from Dr. Michael McDonald of George Mason University,
describing among other things recent research concerning Illinois and several
other Midwest states; his findings suggest that in Illinois, a strict
constraint to produce maps that follow county boundaries or that maximize
certain assessments of compactness will result in plans that produce a
statewide partisan imbalance - even to the extent of favoring the state's
minority party with a predictable statewide legislative majority.  Drawing district lines that are ostensibly
entirely blind to partisan consequences is not a way to produce districts that
achieve partisan fairness.

Prospects for reform

The above overview was intended to
lay out the basic landscape for redistricting, in Illinois and beyond.  There is much in the current process to
generate substantial public suspicion, and much in the process elsewhere in the
way of commendable alternatives.  I know
that various proposals have been floated in Illinois, some currently before the
Committee, and many with positive attributes. 
Analyses of two such proposals accompany this written submission. 

Although I am happy to comment on
particular attributes of particular plans that you are considering, my purpose
today is not to present a single preferred process for redistricting in
Illinois.  I believe that there are many
potential ways to change the status quo that would benefit Illinois voters at
the end of the day.  Rather, I would like
to close by highlighting four components of the redistricting process in
particular that we believe to be crucial in any effort to restore constituents'
faith in the fairness of the districting exercise.  

First,
an independent process
.  We have
already described the appearance of impropriety that results when legislators
are intimately involved in drawing their own district lines.  For the benefit of the institution as a
whole, and for the public good, we encourage the Committee to suggest placing
redistricting authority beyond the temptation of individual manipulation.  The authority responsible for redistricting
in Illinois - and just as important, the staff supporting that process - should
be meaningfully independent from undue legislative influence. 

We stress the limiting adjective
"meaningful" with the understanding that cosmetic independence will not
suffice.  Meaningful independence means
freedom from obligation, influence, and possibly even ex parte contact.  Furthermore, meaningful independence may
require multipartisan balance to enforce. 

There are at least three further
substantial caveats to implementing a system that guarantees those who draw the
district lines some measure of independence. 
First, I am not suggesting simply importing wholesale the procedure of
another state.  Elements of many of these
systems discussed above might be productively deployed in Illinois, but they
will likely need to be adapted to Illinois' particular political climate.  Differences between states are meaningful for
their redistricting institutions as well.

Second, meaningful independence is
not simply produced by bipartisanship, even if the bipartisanship in question
is meaningful.  (And on this score, I have
concerns that despite their best intentions, some of the pending proposals will
maintain or increase the opportunities for rampant partisanship, rather than
limiting its impact.)  The latest
Congressional map was widely understood to involve bipartisan compromise, but
cannot be said to have gained the confidence of the public that the map was
created primarily for the public good.

Third, the fact that Illinois
should benefit from a meaningfully independent redistricting body does not mean
that the state should be carved into neat automated rectangles or circles.  District lines serve a community only when
they reflect the community, and communities do not evolve with mathematical
exactitude.  There will still be ample
need for political compromise: the arbiters of district lines will be called
upon to seek fair and equitable representation for racial and ethnic
minorities, and grant representation to real communities of interest spread out
in irregular fashion.  Independence does
not attempt to take the politics entirely out of the redistricting
process.  Nor, indeed, does it attempt to
eliminate entirely politicians' role. 
The difference is that, in a body with independence, those with a
particular incentive to lock out competent challengers are not given unfettered
access to the keys.

Second,
a diverse representative body.
   The
need to reconcile competing and complementary interests in the redistricting
process demonstrates the second element of success: the redistricting body must
be meaningfully diverse.  An independent
body that is designed in an exclusionary fashion is not likely to represent an
improvement on the status quo, particularly in a state with the diversity of
Illinois.   Those responsible for drawing
district lines must reflect ample geographic, racial, and political diversity,
so as to prevent charges of self-dealing similar to those that have found a
foothold in the current system, but on a group level rather than an individual
level.  That is, the redistricting body
must be sufficiently diverse to be legitimate in the eyes of the citizens
districted by its action.  There is,
naturally, no lawful formula that will guarantee diversity across all
dimensions.  Nevertheless, in a body of
substantial size, with some part of the selection process in the hands of those
with a political incentive to foster diversity, it should be possible to
provide a rich array of constituent representation. 

Third,
meaningful redistricting criteria

We recommend a diverse and independent redistricting body, because
without the right set of arbiters, well-tailored goals will fail to produce
desirable results.   Similarly, without a
set of meaningful and workable goals, the ideal group of line-drawers will be
left unmoored.  A redistricting body must
be guided by specific criteria, to adequately assess whether any given plan has
succeeded in achieving the public good.

Certainly, any attempt to draw
district lines must at least conform to applicable federal law.  This includes the Constitutional
equipopulation requirement, and the obligation to justify disparities even
within a 10% deviation for state legislative districts.[11]  It also, of course, includes all of the
protections of the Voting Rights Act. 
However, even within these bounds, there are endless permutations of
district lines.  Any redistricting body
requires further agreed-upon criteria to guide its choices and render them
legitimate in the eyes of the population. 

There are many available
options.  Some present affirmative
requirements, such as the mandate to hew to pre-existing political geography,
to develop districts that are reasonably compact, or to draw lines in order to
further the representation of particular communities of interest.  Others are negative injunctions, such as the
obligation to avoid drawing lines in order to disadvantage a particular
incumbent or challenger.  One stands out
as particularly important in the context of the current conversation in
Illinois: given our American political commitment to the fundamental principle
of majority rule, it is necessary to pay some attention to the likely partisan
balance of a redistricting map, so that a minority of the state's population
does not reliably and durably control the majority of the legislature. 

The need for clear governing criteria
should not be confused with a demand that the criteria in question dictate a
particular result.  It is a common, but
mistaken, instinct to attempt to bind a redistricting body to maximize one or
two readily quantified factors; such a mandate usually produces undesirable
unanticipated consequences in particular portions of a state.  Rather, the criteria should retain enough
flexibility to allow trusted decisionmakers - the diverse and independent
redistricting body mentioned above - to apply the overall state priorities to
peculiar local circumstances, sensibly and in the broader public interest.

Fourth,
meaningful transparency
.  At the
moment, most citizens feel excluded from the redistricting process, which
concerns not merely public policy, but the aggregation of group interests that
are the foundation of all policy discussions.  
Communities are splintered and electoral fortunes tailored, by and
large, without meaningful opportunity for input.

The legislature should commit to
making the redistricting process more transparent in 2011 and 2012, with the
components common to basic due process protections: public hearings and open
meetings, and the opportunity to respond to drafts before they are
enacted.  The redistricting body should
endeavor to make data and even redistricting software broadly available, and
allow citizen members of the public to submit full or partial proposals, to
inform the primary body's deliberations. 
These are modest steps indeed for a process so fundamental to democratic
representation.

* * *

In reviewing the way in which
Illinois' districts are drawn, this Committee has set itself a commendable and
necessary task.  Citizens strongly
support the need to promote independent decisionmaking and remove the taint of
potential self-dealing.  We understand
the need for pragmatic solutions, and do not wish to allow the perfect to
become the enemy of the good ... but we also firmly believe that the state will
be well served by truly meaningful reform, and wish the Committee well in its
efforts directed at that end.  As with
other states across the country, the Brennan Center stands ready to assist the
people of Illinois and their representatives with comparative research, legal
analysis, and drafting of particular provisions - among other services - in the
interest of furthering redistricting reform. 
I thank you very much for your time - and I am more than happy to answer
any questions that you may have.


[1] Hawaii
and New Jersey also draw their congressional districts through "politician
commissions."

[2] In
Arkansas, the commission consists of the Governor, Secretary of State, and
Attorney General.  In Ohio, the
commission consists of the Governor, Secretary of State, and State Auditor, as
well as one member chosen by each major party's legislative leadership.

[3] Arizona,
Idaho, and Washington also use independent commissions to draw congressional
districts.  California allows its
legislature to draw congressional districts; Alaska and Montana have only one
congressional representative, and therefore do not need to draw district lines.

[4] Twelve
states do the same for their congressional districts.  In general, fewer states articulate distinct
criteria for drawing congressional lines, simply because the congressional
districting process is seldom reflected in state constitutions, statutes, or
legislative guidelines.

[5] See Guidelines and Criteria for 2002
Kansas Congressional and Legislative Redistricting , at
http://skyways.lib.ks.us/ksleg/KLRD/Redistrct/documents/Guidelines.pdf.

[6] Mont.
Districting and Apportionment Comm'n, Criteria and Operational Guidelines for
Legislative Redistricting, April 18, 2001, at
http://tinyurl.com/montanacommunities.

[7] Ala.
Reapportionment Comm. Guidelines for Legislative, State Bd. of Education &
Congressional Redistricting, § IV, at
http://www.legislature.state.al.us/reapportionment/Guidelines.html.

[8] Idaho's
formulation of the requirement is that counties may not be divided in order to
protect a party or incumbent.  Idaho Code § 72-1506(8).  If a county must be divided for other reasons
(including the equal population mandate), however, it is not clear that a redistricting
body would be precluded from drawing these lines for partisan benefit.

[9] Ariz. Const. art. IV, pt. 2, § 1(14)(F);
Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting
Comm'n, 208 P. 3d 676, 686-87 (2009); Rev.
Code Wash. § 44.05.090(5).

[10] Ariz. Const. art. IV, pt. 2, § 1(15).

[11] See, e.g., Cox v. Larios, 542 U.S. 947
(2004).