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Redistricting
By Myrna Pérez – 08/11/09
In the inaccurately titled opinion piece ("Our Unconstitutional Census") published on August 9 in the Wall Street Journal, Messrs. Baker and Stonecipher, a constitutional law professor and pollster respectively, falsely claim that the current practice of counting undocumented persons in the census for the purpose of apportionment is unconstitutional.
The "Census clause" or sometimes called the "Enumeration clause" is found in Article I, 1, § 2, cl. 3 of Constitution. After taking into account the removal and additions that have occurred with later amendments, that clause reads as follows: "Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers . . . . The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." Further, Section 2 of the Fourteenth Amendment states that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."
The Constitution uses the word "numbers" or "persons" -- not "citizens," or "legal residents," or "those lawfully present" as the authors suggest. Moreover, the Constitution wholly and explicitly empowers Congress to sort out the details. The express delegation of the responsibility to Congress makes it odd that part of their opinion piece casts Congress fulfilling its constitutional obligations to make the policy determinations guiding the census as a bad thing.
In a move that is sure to irk "strict constructionists" the authors ignore the plain text of the Constitution and cite enabling legislation for support, arguing that the name of first census act used the word "inhabitant" and that the contemporaneous definition of that word were persons entitled to the privileges conferred by the state, which would exclude unlawful residents. The word "inhabitant," is not used in the Constitution's Census clause, but is instead used when describing qualifications of Representatives and Senators. In the Qualification clauses, the word "inhabitant" probably fairly means what the authors say it means. But, it is improper for the authors to import a word from other sections of the Constitution into a clause where the framers deliberate and purposely omitted that word and claim that the word is controlling.
Even if Congressional understanding of the Constitution trumps its plain text, the first census act actually suggests reaching a contrary conclusion because that act counted slaves and non-white free persons. It required the district marshals to swear or affirm an oath that they would undertake a "just and perfect enumeration and description of all persons resident within my district." Those facts mean that Congress at least had a more expansive view of "inhabitants" than the authors would allow, and as the Constitution indicates, Congress gets to make the call as to the details.
The authors invoke the Wesberry v. Sanders principle that there should be rough equivalents of voting citizens in state legislative districts. Justice Rehnquist, however, in an opinion in the mid-90s rejected the application of the Wesberry principle to Congress when conducting the census. He also noted that the Court had reached the same conclusion on two prior occasions because of the latitude given to Congress under the Constitution and because the districts at issue in Wesberry were intra-state, but federal apportionment required interstate review which could not be done with the same precision. Even the Supreme Court disagrees with the authors.
There are good policy reasons for including all residents in a state when conducting apportionment. A district's representation affects everyone in the district; moreover a district's representation is impacted by everyone in the district.
The authors may disagree that apportionments should be influenced by enumerations of undocumented persons, but it is false that the current practice of doing so is unconstitutional.
Tags: Democracy, Redistricting
By Justin Levitt – 06/24/09
Last week, Ohio voters got
a glimmer of hope for fixing a badly broken redistricting process.
In most states, legislators
get together every ten years, and carve state territory up into districts
of voters, more or less as they please. It's no surprise that
"self-regarding
interest is predominant over social interest":
most of the time, the legislators draw the lines to benefit themselves
and their colleagues, often at the expense of voters in real communities.
Neighborhoods are split, competing politicians are drawn out of contention,
groups of citizens are cracked
or packed or tacked
to break up or overconsolidate voting power. We like to think
that voters choose their politicians-but in the redistricting process,
politicians choose their voters.
The existing system for drawing
Ohio's state legislative districts is a bit different than the norm,
but suffers from many of the same problems. (For Ohio congressional
districts, the process is the same as the national norm, and just as
broken.) Instead of letting individual legislators tweak their
own districts, the state assigns the redistricting process to a five-person
commission: the Governor, the State Auditor, the Secretary of State,
one person chosen by the Republican legislative leadership, and one
person chosen by the Democratic legislative leadership.
This structure gives substantial
power to party leadership and statewide elected officials. And
because of the commission's setup, one party is always in complete
control of drawing the lines. That makes it even easier in Ohio
for one party to bend the process to its own designs. In the 1970s and 1980s, Democrats won; in the 1990s and 2000s, Republicans won. And for four
decades, real Buckeyes of all stripes lost.
Last week, an impressive partnership led by Ohio's Secretary of State,
three respected nonpartisan nonprofit organizations, political scientists,
and current and former legislators showed that there is a better way.
The group set up an open
process, inviting
members of the public to draw district maps according to a set of carefully negotiated
rules, and then
equipped participants with the data and the tools to put pen to paper.
The results were announced on Thursday - and
on most every metric, the plans that were submitted served Ohio voters
far better than the real districts that have partitioned the state for
the last ten years.
The Secretary's process was
a demonstration, not a legal change to the real-life districts, but
that does not mean that it was just an intellectual exercise.
As Heather Gerken has discussed (and discussed and discussed and discussed), with plenty of persuasive seconds, these sorts of model institutional
initiatives have real-world merit. They provide a solid baseline:
a means for the public, legislators, and even courts to gauge what equitable
redistricting might look like, rather than arguing about abstract principles
with no concrete foothold. They offer constituents and media a tool
to shame legislators into better performance, or at least into justifying
their decision to depart from the coalition's vision. And they
demonstrate that procedural reform is not merely hypothetically possible,
but pragmatically achievable, with tangible results. In the context
of a ballot initiative or a reform bill from within the legislature,
prospects of success get a lot better with the ability to point to a
model that has actually worked.
The particular process that
wrapped up last week in Ohio wasn't perfect; I've got a few quibbles
with the details, which I've laid out in these other posts. But those concerns shouldn't
obscure the substantial significance of the process overall.
The Secretary's model showed
that it's possible to open up the redistricting process by giving
members of the public the data and computer technology to draw and submit
their own proposed plans.
The Secretary's model showed
that it's possible to balance multiple, occasionally competing, objectives
in drawing districts.
The Secretary's model showed
that it's possible to improve the status quo with a few carefully
tailored constraints that still retain a "human
touch in choosing among the best plans."
And the Secretary's model
showed that it's possible to build a process for selecting public
servants that actually serves the public.
Which is likely the most important
lesson of all.
Tags: Redistricting
By Justin Levitt – 06/22/09
In an earlier
post, I praised a recent Ohio project giving citizens the tools to
draw their own congressional district maps according to a set of carefully negotiated
rules. The
exercise was particularly valuable in demonstrating that reform is possible
- and in demonstrating the degree of improvement that reform might
achieve.
The rules for the exercise
were straightforward. Moreover, they reflect a set of very sophisticated
choices, even when simplified to be accessible to the general public.
They began with a solid threshold:
a proposed plan would be tossed if it didn't live up to the two basic
redistricting requirements of federal law. The first is the U.S. Constitution, which requires that each district
have about the same population. The second is the Voting Rights Act, which keeps district lines from fragmenting
substantial minority populations to dilute their voting power.
So far, so good.
In addition to these two basic
rules, there are many other objectives that people try to satisfy when
they draw district lines, some of which are at odds with each other. One reform strategy is to lock in rigid priorities: first,
do X; then, if it doesn't conflict with X, do Y. Another strategy is to punt: choose trusted decisionmakers,
throw in a bunch of different goals, and let the decisionmakers work
out which is more important. The Ohio project chose still a different
path, and it's an intriguing way to acknowledge and resolve the tension
of multiple objectives.
The organizers chose four second-tier
goals: community preservation, compactness, competitiveness, and partisan
fairness (more about these, individually, here. They developed quantitative scales to evaluate plans
based on each goal, and weighted the goals by relative importance.
They then encouraged members of the public to find their own optimal
balance among the goals, scoring each plan as it came in. Some
plans, say, aimed more for compactness than competitiveness, or vice
versa. But each effort to balance the competing goals was aiming
for a high overall score. And notably, each offered an improvement
on the status quo, which didn't satisfy any identified goal particularly
well.
As I explain here, I have some quibbles with some of the goals that were chosen,
and with some of the particular means to measure progress toward those
goals. But the structure of the enterprise - an open competition
- is noteworthy. This isn't the first time that a competition
has been proposed: Sam Hirsch, among others, has suggested such a thing. But the Ohio exercise was a
competition with an unusual - and very thoughtful - ending.
I find it most impressive,
given the temptation in any contest to crown an ultimate champion, that
the organizers in Ohio refused to automate victory. Rather than
simply selecting the highest-scoring plan, any plan scoring in the top
25% was designated as a "winner." In the real world, a trusted
decisionmaking body would then have discretion to choose, from among
those winners, the map most beneficial for Ohio voters overall.
If you're going to have a
competition, this is an extremely thoughtful approach, for two reasons.
First, it recognizes that even with clear scores, there may not be one
clear "winner" (I owe a hat tip to Dan
Goroff for this
point). If two redistricting goals are equally important, but
in conflict, it's possible to have multiple winning plans with the
same score - one sacrifices a bit of goal 1 to improve goal 2, and
another does the opposite. In the math and economics worlds, this
is known as the "Pareto
frontier" -
a whole set of outcomes that all represent the best score in a competition
like the one that Ohio set up. By choosing the top 25%, the competition
acknowledges that there might be a tie.
Second, and probably more important,
we know that the scoring system won't be perfect. Even if it
were possible to get perfect consensus on all of the goals of the redistricting
process and their relative importance, translating that consensus to
a mathematical score will involve a bit of noise. Both the measurements
and the weights are approximate at best. Several of the traits being scored are just easily quantifiable proxies
for elements of meaningful representation that are harder to measure.
And there may be other intangible goals that don't really have good
proxies at all.
In this respect, the quest
for the "best" redistricting plan is like the quest for the "best"
supermarket produce. We'd want to take into account size, shelf
life, cost, color, taste, and probably a bunch of other factors.
Size and shelf life and cost can be easily measured and scored. There's a scale
for color, but
we might have different opinions about what "best" looks like, and
it's going to be tough to score color blends. And our measurements
for taste are approximate at best. If you're going to set up
a competition for the "best" produce, you'd want the results to
be flexible enough to account for imperfection in the measurements,
to get at the produce that's near the quantifiable "Pareto frontier,"
but perhaps not precisely on it.
So too with redistricting.
Some goals are easily measured, but for others, any measure we might
devise is at best a near miss. Since the score isn't a perfect
translation of the intended outcome, the highest score shouldn't automatically
win. In Ohio, the rules promote the top quartile of high scoring
plans - any of which improves on the status quo. Then a decisionmaking
body would take a look, to see if the number 4 plan actually serves
Ohio voters better than the three plans with a higher numerical score.
The decision to forego simply appointing a single winner works out to
be a big win for everyone.
Tags: Redistricting
By Justin Levitt – 06/21/09
In two earlier posts, I discussed
the existence of a recent redistricting competition
in Ohio, and its basic structure, and found much
to praise. The competition gave citizens the tools to draw their
own congressional district maps according to a set of carefully negotiated
rules. After
accounting for required federal law, the remaining rules represent policy
choices. Here, in the weeds, there may still be room for improvement
before translating the model directly to real-world reform.
Let's take a closer look
at each of the four subsidiary goals that the Ohio competition built
in to the process, and the means for measuring plans up against those
goals. (Each of these goals is examined in much more detail in A Citizen's
Guide to Redistricting.)
The first goal was preserving
communities: giving voters with similar interests meaningful representation,
by keeping them in the same district, rather than dividing them into
groups too small for candidates to care about. In my mind, after
the "one-person, one-vote" and minority rights concerns of federal
law, this is the single most important idea behind redistricting.
It's also one of the hardest to measure objectively.
The Ohio competition used a
common proxy: assume that a county represents a community, and then
split counties as little as possible. They also built in an important
exception for cities like Columbus that cross county lines: because
Columbus spills out of Franklin County into bits of Delaware and Fairfield
Counties, it's OK to keep the bits of Columbus outside Franklin together
with the bits inside Franklin, even if it means dividing some Delaware
or Fairfield residents from others.
The organizers described this
rule as "opening a dialogue" about the means to measure communities,
and I think that's exactly the right approach. After the competition,
the dialogue continued: the organizers looked at the results, and thought
that it made sense to add an additional condition. In some cases,
getting equal population within each district makes splitting a county
inevitable; when that happens, the lines should split municipal boundaries as little as possible. That
is, both counties and towns would be used as proxies for communities.
That's a welcome step, but
it should not be the end of the conversation. There's a real
opportunity to test how close the proxy comes to reality. In the
near future, we may be able to lay
out community borders
that are just as tangible as county lines, by aggregating lots of people's
perceived community boundaries - but we're not quite there yet.
Short of that, some states offer public hearings on proposed redistricting
plans, to let people articulate how a map would affect the communities
to which they belong - but Ohio hasn't yet joined that club either.
So I'd urge the organizers of the Ohio exercise to fill in those blanks,
soliciting public feedback on particular communities that cross county
or city lines. If there are few, the proxy works pretty well in
Ohio. If there are plenty, well, maybe the proxy needs adjusting.
The second goal was compactness:
keeping districts close to regular geometric shapes so that they don't
look "bizarre." In my mind, this is one of the most accessible,
but least useful, goals commonly cited in reform. We have a common
intuition that some districts look bizarre. So what? A district
that's a perfect circle is compact, by most any measure. So
what? Aesthetic appeal has little to do with the quality of representation. Maryland and Michigan have "bizarre" boundaries, but
voters in those states are not more poorly served because of the shape
of their borders than are voters in the rectangles of Colorado or Wyoming. And Illinois' fourth
Congressional district
is routinely cited as one of the most "contorted" in the country,
but it gave Illinois its first majority-Hispanic district. Whether
a district is pretty doesn't tell me anything about what it's doing
for the citizens within, or whether it fits the patterns of where people
actually live.
Most often, reformers seem
to turn to compactness to limit legislators' self-interest.
Because we don't trust the people drawing the lines, we suspect that
bizarre lines involve self-dealing, and we therefore look to geometric
rules to try to smooth the lines out. On its own, this is a legitimate
concern and an understandable, if blunt, response. Yet the Ohio
competition's push to preserve counties and cities already limits
the most unjustified spidery twists and turns. In the absence
of decisionmakers we trust, it may be worth contemplating a limited
role for compactness within a county - if a county is to be
split, there's a small reward for splitting it "nicely." But
as a hedge against self-dealing, broader compactness formulas don't
accomplish much that the community preservation goal above doesn't
already handle better.
Other reformers turn to compactness
to help keep districts regional: voters in the south of the state are
grouped with other southern voters, rather than with voters farther
away. This is a rough approximation of common interest, at best.
(For example, a district stretching along the Pacific may better represent
voters with a common
interest in that coastline
than a regional district joining them with voters farther inland.)
Moreover, the compactness measure that the Ohio organizers chose (there
are more
than 30 options)
doesn't fit this goal very well. The Ohio competition's measure
penalizes squiggly boundaries, which does little to stop spread, and
punishes plans for following borders of less regular "communities"
like Noble
County or Columbus. A better way to keep districts
regional would focus on the extent to which a district stretches out
from a central core, known in the trade as "dispersion."
The third goal was competitiveness:
creating districts where the voters are roughly half Democrats and half
Republicans. In part, this helps ensure that incumbents aren't
insulated from losing if they're not responsive to their constituents
... though even in a district that's wildly skewed to one party or
another, an unresponsive incumbent can be challenged in a primary.
More important, competitive districts set up an even playing field for
the political parties as a whole, allowing legislative delegations to
reflect changes in the partisan mood. If a fair number of districts
are roughly half Democrat and half Republican, a shift in the overall
partisan preference can theoretically translate to a shift in the control
of the legislature.
It's worth noting, however,
that because of candidates' name recognition, fundraising prowess, campaign skill, and a host of other
issues, competitive districts often don't deliver competitive elections.
That is, you can still get a lopsided election from a 50-50 district.
When Ohio's current congressional districts were drawn in 2001, 7
were "generally" or "heavily" competitive, with a partisan spread
of less than 55-45. Yet in those districts' first elections, not one race was within 10 points,
and the seven districts in question were won by an average of 65-35.
The fourth goal was representational
fairness, which measures the map as a whole rather than any individual
district: a plan does better if the number of expected winners from
each party is roughly in line with the total vote statewide. So
if the states' voters as a whole are 50-50, there should be the same
number of districts leaning Republican as those that lean Democratic;
if the state as a whole splits 70-30, so (more or less) should the state's
legislative delegation. Intuitively, this goal makes sense: a
fair system should try to make sure that the representatives of the
state, as a whole, reflect the state as a whole.
The particular rule used in
the competition has a curious twist, though: it cares whether a district
is leaning Republican or leaning Democratic, but not by how much.
That is, districts leaning Republican by .04% get the same credit as
districts leaning Republican by 40%, even though the former are much
more likely to end up with Democratic representatives. At the
end of the day, by looking only at whether a district is theoretically
on one side of the partisan divide or the other, plans that score quite
well on "representational fairness" could end up predictably giving
most of the legislative seats to the party that loses the statewide
vote. And that hardly seems representationally fair.
As the discussion above shows,
there's a fair amount of tension between drawing districts that are
individually competitive (nobody knows who wins which seats) and drawing
districts to ensure representative fairness (Dems win X seats, Reps
win Y seats). And to the extent that voters with common interests
tend to favor the same party, there's a lot of tension between drawing
districts that preserve communities (mostly one party) and districts
that are competitive (50-50). Rob Richie has proposed a system
of "accountability
seats" to try
to relieve these tensions, removing the need to move voters around in
order to get the partisan mix just right. The idea would allocate
a few reserved legislative seats based on the statewide vote, to balance
the legislative delegation so that it looks like the state as a whole.
The "accountability seat"
system could solve an awful lot of the current redistricting struggle,
but it also represents a fairly big structural change. Ohio's
recent competition process represents a different innovative way to
address goals that may be in conflict, by compromising a bit on each
objective. The critiques above - suggestions to give a goal
more or less weight, or to change the nature of the measurement slightly
- are quibbles on the margins, things to address now that the dialogue
has been opened. The partnership
behind Ohio's latest endeavor
deserves a strong vote of thanks for starting the conversation.
Tags: Redistricting
By Kahlil Williams – 03/21/07
*Cross-posted from ReformNY
Back in high school, my father coached my AAU basketball team- a
hodgepodge of players who were just good enough to get invited to
tournaments, where we would then get manhandled by teams with actual
talent. We had very little size, but we played solid, scrappy defense.
Unfortunately, we didn't get a lot of rebounds. This incensed my dad,
whose primary coaching tool was screaming "BOX!" (as in "box out") as
loudly as possible, whenever a shot would go up.
One day, after
a particularly disappointing game, he told us the story of some
barnyard animals who avoided all of the tasks necessary to prepare a
meal for themselves, yet they still wanted to partake in the feast. The
protagonist, Henny Penny, would ask them all "Who will pick the grain?"
or "Who will knead the dough?", and animals like Lucy Goosey and Turkey
Lurkey would summarily reply, "Not I!" Henny Penny was left to do all
of the work, but, predictably, the other animals were more than happy
to dig in once it was time to eat. The goal of the story was to point
out our team's reluctance to do the grunt work that needed to be done
(i.e, rebounding), even though all of us wanted to reap the rewards of
victory.
Enter Assemblywoman Barbara Lifton. Her guest column
on redistricting in the Ithaca Journal illustrates how Henny Penny and
Turkey Lurkey are sometimes the same creature. The beginning of her
piece is in the Henny Penny mold, presenting some important
considerations and questions for redistricting reform, including
compliance with Voting Rights Act, respecting communities of interest,
etc.
But these considerations begin to sound more like excuses
that undermine reform as the article goes on. For instance, Lifton
wonders aloud whether we could find non-partisans "who would be willing
to take on the complex task" of redrawing the boundaries for New York's
Congressional and state legislative districts, even though 2.3 million
New Yorkers are not registered to any
political party. And she struggles to understand how an independent
commission might be structured (as if one must be adopted out of whole
cloth) ignoring the fact that such commissions already exist elsewhere. In short, it's as if she's premptively saying "Not I!", a la Turkey Lurkey.
In fairness, I have no trouble with being cautious on redistricting
reform; we should be wary of recreating the current structure that
keeps the power to draw district lines, in essence, with the
legislature. Similarly, we must ensure that minority communities get a
fair shake. However, those who are facilitating the discussion should,
at the very least, present redistricting reform as an issue with
obstacles and substantial
benefits, not simply highlighting the negatives. Had Henny Penny
pitched the work as back-breaking labor to produce a meal that was
"pedestrian" or "lacking inspiration", the story wouldn't make any
sense. Who's going to give up a day of frolicking on the farm for that?
The Brennan Center salutes any and all who support meaningful and
effective redistricting reform, including Assemblywoman Lipton. But we
hope said supporters are converting more of our state's Turkey Lurkeys
into Henny Pennys, and not the other way around.
Tags: Democracy, NY Reform, Redistricting
By Kahlil Williams – 02/27/07
The lights in Hollywood shine a little bit brighter on
Oscar night, but who knew how much light they would cast on New York? Notwithstanding NY native
Martin Scorcese’s
victories for Best Picture and Best Director, several parallels can be
drawn between the Academy Awards and New York’s political process. The
state legislature, like the Academy, has voting practices viewed by
outsiders as mysterious, if not secretive. Reform efforts have been
ushered stage-right like an Oscar winner who’s thanked a few too many
people in a rambling speech. And the incumbency advantage of elected
officials combined with their control of redistricting ensures that,
like the awards show, that though the outfits change in the
legislature, the people wearing them rarely do.
Eileen Markey’s
article in City Limits
alludes to another parallel. The majority of our state's prisoners come
from downstate (New York City), but virtually all the state's prisons
are upstate. More importantly, those prisoners are counted as
"residents" of upstate towns in the decennial census, but they are
unable to vote. Thus, for the purposes of reapportionment and
redistricting in NY, prisoners are like seat fillers at the Oscars:
they give districts the appearance of being full, but they have
absolutely no clout.
This practice has meaningful economic and
political consequences. The resources diverted to districts upstate do
little to aid prisoners, while the actual residents get a
disproportionately large slice of the pie. In turn, less money is
directed to downstate districts that already lack resources and support
returning prisoners upon their release. Politically, this method has
favored Republicans, who are heavily concentrated upstate. By
allocating prisoners up north, redistricters respecting
one-person/one-vote doctrine must create more districts upstate; these
puffed-up districts have tended to elect GOP candidates.
There
are simple ways to change New York’s method of counting prisoners. Some
states simply do not count prisoners when redistricting. Others,
including Sen. Eric Schneiderman have proposed creating a database with
the last known addresses of prisoners, and counting them there. Either
proposal would bring more fairness to the system and help end the
current practice in NY which heaps insult onto injury: not only are
prisoners being used for partisan gain, but their home districts suffer
as well. Or, put another way, not only are they little more than
nominees with no chance at a statue, they're left without the coveted
swag too.
Tags: Democracy, NY Reform, Redistricting
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