Testimony of Justin Levitt before the Indiana Census Data Advisory Committee

This testimony lays out an overview of the need to change Indiana's redistricting process and details some important components of effective reform.

September 29, 2009
Testimony
of
Justin
Levitt, Counsel
Brennan Center
for Justice at NYU
School of Law

Before
the
Census
Data Advisory Committee
September
29, 2009

To download this testimony as a PDF, click here.

Good morning, distinguished Committee
members.  Thank you for the opportunity
to speak at this very important hearing.  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 and advocacy on redistricting reform, 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 Indiana draws the
boundaries for its congressional and state legislative 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
commend Secretary of State Todd Rokita, as well, for recognizing the importance
of the issue, and for drawing public attention to opportunities for change in
the process.  We further urge the
Committee to ensure that action - that is to say, meaningful reform - 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
effective reform should incorporate.  I
will describe the structure of the current system by which Indiana 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 Indiana must consider
the unique demographics and political issues that confront Hoosiers.   Still, we hope that the basic principles we
focus on today can provide useful guidance as your deliberations continue.

Indiana's redistricting system

Each state's redistricting system
is slightly different, in both design and implementation.  As you know, in Indiana, the state legislature has primary
responsibility for drawing the lines of both state legislative districts and
Congress, subject to gubernatorial veto. 
For congressional districts, if the legislature cannot agree on a plan
by the end of the session in the year that census data is released, a "backup
commission" is convened to take over the process: the commission consists of
the Senate and House majority leaders, the chairs of the Senate and House
apportionment committees, and one gubernatorial appointee.  The only further constraints on the process
are governed by federal constitutional and statutory law.

The net effect of the particular
manner in which Indiana's
redistricting system has developed is that, as you know, many Hoosier legislators
become extensively involved in determining the bounds by which they and their congressional
colleagues are elected.  Moreover,  this process often 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 districting process become enmeshed in the task of building
districts based on favored constituents and disfavored ones.  That is, representatives become involved in
the business of choosing their constituents, rather than the other way
around. 

Just as important is the way that
this process looks 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 Indiana's legislative
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 sometimes calls for
combining pockets of specific populations into irregularly shaped
districts.  However, some of Indiana's legislative
districts take twists and turns so strange that it appears that the most compelling
reason for the district's shape is simple electoral advantage; elections in
those districts, often without any major-party challenger, lend support to the
intuition that the districts have been drawn to protect particular insiders.  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, Indiana's recent electoral outcomes also
feed the intuition that the districts are drawn for self-protection.  After the last redistricting, for example, 50
out of the 100 state House 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 House were not even challenged after the last redistricting, by either
Republicans or Democrats.  This is at
least in part because, on average, those 50 districts were drawn so that they
leaned toward one party or the other by an average of 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 result in
districts that are less competitive. 
Moreover, legislators like Ron Herrell 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 Indiana
where party affiliation is more flexible. 
Still, half of the House districts without so much as a challenger is an
alarming rate for those concerned with democratic choice, and 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.  Indiana
currently presents virtually no criteria for the redistricting process, beyond
what federal law requires.  Such a blank
slate is decidedly outside of the national norm.

Nineteen
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, thirty-eight states require some accounting for political boundaries -
county, township, municipal, or ward lines - in state legislative districts;
thirteen states impose the requirement on 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-four
in all - use an even rougher proxy for common interest, by requiring their
legislative districts to be reasonably "compact"; thirteen states require
congressional districts to 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, many in the Midwest, 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, as in Indiana,
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.  Eight
states - California, Delaware, Hawaii, Iowa, Idaho, Montana, Oregon, and
Washington - prohibit 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 here in Indiana. 
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.
Recent research by Dr. Michael McDonald of George Mason University, for
example, suggests that in several states, 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.  These
sorts of effects will not always be the same nationwide, and it may be that
similar constraints produce different results in Indiana. 
The general point, however, holds: drawing district lines that are
ostensibly 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 Indiana 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 also been floated in Indiana in the past, many with positive
attributes.  I would like to close by
highlighting four components of the redistricting process in particular that we
believe to be crucial in the effort to restore constituents' faith in the
fairness of the districting exercise. 
All of these aspects can be implemented in various ways either through
constitutional change or through statutory reform within the current
constitutional structure.

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 Indiana - 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 two 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 Indiana,
but they will likely need to be adapted somewhat to Indiana's particular
political climate.  Differences between
states are meaningful for their redistricting institutions as well.

Two, the fact that Hoosiers 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
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.   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.[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
Indiana: 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
maximizing 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 Indiana's
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 believe that the state will be well served
by truly meaningful reform, and wish the Committee well in its efforts.  As with other states across the country, the Brennan Center stands ready to assist the people
of Indiana 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] Eight
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 or statutes.

[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).