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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.

Published: October 14, 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).