Testimony to the Legislative Branch and Executive Branch Committee for the Constitutional Modernization Commission

 

 

 

 

 

 

February 3, 2016
 

The Brennan Center for Justice at New York University School of Law appreciates the opportunity to submit these comments to the Legislative Branch and Executive Branch Committee regarding congressional redistricting reform in Ohio.

 

As the Committee considers whether to alter the congressional redistricting process in Ohio, the Brennan Center believes that the experiences of other states with redistricting reforms offer insights that could be useful to the Committee in deciding how to structure any additional reforms in Ohio.

 

Among the areas that merit consideration are:

 

Citizens increasingly feel that the political process is rigged. They are deeply cynical about our elected officials, especially those in Washington, D.C. While many factors have caused this unfortunate political atmosphere, partisan gerrymandering has almost certainly played a large role. Gov. John Kasich recently called partisan gerrymandering “the biggest problem we have” and Secretary of State Jon Husted has long been a proponent of reform. Even President Obama called attention to this problem in his State of the Union Address when he said “we’ve got to end the practice of drawing our congressional districts so that politicians can pick their voters and not the other way around.”#3

 

With the overwhelming approval of Issue 1 last November, Ohio’s citizens gave resounding support for redistricting reform. The effort in Ohio presented a model and encouraged advocates and elected officials in other states, like Illinois, Indiana, and Michigan, to follow Ohio’s lead as they begin to consider reforms in their states.#4

 

 

 

With passage of Issue 1, Ohio joined states like Arizona, California, and Florida in expressly prohibiting drawing a redistricting plan “to favor or disfavor a political party.”#5 Requirements like this have proven in other states to be powerful tools to make it possible to police the worse of partisan linedrawing abuses notwithstanding the absence, to date, of an enforceable federal anti-gerrymandering standard.#6

 

While Ohio’s restriction applies to political parties alone, other states have expanded the scope of their anti-gerrymandering language to also prohibit drawing districts to benefit individuals, including candidates and incumbents, in addition to political parties.#7 The Constitutional Modernization commission should consider whether similar language could provide further protections against partisan gerrymandering in Ohio.

 

Two other aspects of Issue 1 are noteworthy and may be worth extending to congressional redistricting in some form.

 

First, Issue 1 includes not just a ban on partisan gerrymandering but a number of objective rules governing how redistricting is to be done. These detailed rules include things like preventing political subdivisions from being divided between multiple districts and could help increase the redistricting commission’s accountability. The experience in other jurisdictions is that objective redistricting criteria are often more effective in preventing gerrymandering abuses than intent-based criteria. It is typically easier, for example, to police based on results than the redistricting process. The rules included in Ohio’s new constitutional language provide a clear set of guidelines that may help courts review future redistricting lawsuits or even prevent litigation altogether and similar rules for congressional redistricting could be beneficial.

 

Second, Issue 1 implemented another mechanism that attempts to ensure partisan fairness. The new constitutional language states that the redistricting commission must attempt to draw districts such that “the statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.”#8 Serious consideration should be given to extending these rules to congressional redistricting.

 

 

Issue 1 does not include language to protect minority groups and communities of interest from being split among multiple districts. Many reforms in recent years have included such language and the Constitutional Modernization Commission should consider whether it would be worthwhile to include similar language in Ohio. Some examples of language protecting communities of interest are set forth below.

 

CAL. CONST. art. XXI, § 2(d)(4):

 

The geographic integrity of any city, county, city and county, local neighborhood, or local community of interest shall be respected in a manner that minimizes their division to the extent possible without violating the requirements of any of the preceding subdivisions. A community of interest is a contiguous population which shares common social and economic interests that should be included within a single district for purposes of its effective and fair representation. Examples of such shared interests are those common to an urban area, a rural area, an industrial area, or an agricultural area, and those common to areas in which the people share similar living standards, use the same transportation facilities, have similar work opportunities, or have access to the same media of communication relevant to the election process. Communities of interest shall not include relationships with political parties, incumbents, or political candidates.

 

ARIZ. CONST. art. IV, pt. 2, § 1(14)(D):

 

District boundaries shall respect communities of interest to the extent practicable.

 

AUSTIN, TEX., CODE OF ORDINANCES, art. II, § 3(E)(4):

 

The geographic integrity of any local neighborhood or local community of interest shall be respected in a manner that minimizes their division to the extent possible without violating the requirements of any of the preceding subsections. A community of interest is a contiguous population that shares common social and economic interests that should be included within a single district for purposes of its effective and fair representation. Communities of interest shall not include relationships with political parties, incumbents, or political candidates.

 

Issue 1 does not prohibit elected officials from serving on the Ohio redistricting commission. Although the four appointed members of the commission could include non-politicians, they equally could be

lawmakers or others closely connected with the political process, such as staffers, lobbyists, or political operatives.

 

Other states, by contrast, have found it beneficial to prohibit elected officials from serving on the commission and to have their redistricting commissions include ordinary citizens. Some examples of language requiring that everyday citizens be included are copied below:

 

Cal. Code § 8252(a)(2):

The State Auditor shall remove from the applicant pool individuals with conflicts of interest including:

(A) Within the 10 years immediately preceding the date of application, neither the applicant, nor a member of his or her immediate family, may have done any of the following:

(i) Been appointed to, elected to, or have been a candidate for federal or state office.

(ii) Served as an officer, employee, or paid consultant of a political party or of the campaign committee of a candidate for elective federal or state office.

(iii) Served as an elected or appointed member of a political party central committee.

(iv) Been a registered federal, state, or local lobbyist.

(v) Served as paid congressional, legislative, or State Board of Equalization staff.

(vi) Contributed two thousand dollars ($2,000) or more to any congressional, state, or local candidate for elective public office in any year, which shall be adjusted every 10 years by the cumulative change in the California Consumer Price Index, or its successor.

 

(B) Staff and consultants to, persons under a contract with, and any person with an immediate family relationship with the Governor, a Member of the Legislature, a Member of Congress, or a member of the State Board of Equalization, are not eligible to serve as commission members. As used in this subdivision, a member of a person’s “immediate family” is one with whom the person has a bona fide relationship established through blood or legal relation, including parents, children, siblings, and in-laws.

 

ARIZ. CONST. art. IV, pt. 2, § 1(3):

By February 28 of each year that ends in one, an independent redistricting commission shall be established to provide for the redistricting of congressional and state legislative districts. The independent redistricting commission shall consist of five members. No more than two members of the independent redistricting commission shall be members of the same political party. Of the first four members appointed, no more than two shall reside in the same county. Each member shall be a registered Arizona voter who has been continuously registered with the same political party or registered as unaffiliated with a political party for three or more years immediately preceding appointment, who is committed to applying the provisions of this section in an honest, independent and impartial fashion and to upholding public confidence in the integrity of the redistricting process. Within the three years previous to appointment, members shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer, and shall not have served as an officer of a political party, or served as a registered paid lobbyist or as an officer of a candidate’s campaign committee.

 

AUSTIN, TEX., CODE OF ORDINANCES, art. II, § 3(D)(4):

 

Each commission member shall apply this article in a manner that is impartial and that reinforces public confidence in the integrity of the redistricting process, A commission member shall be ineligible, for a period of 10 (ten) years beginning from the date of appointment, to hold elective public office for the City of Austin. A member of the commission shall be ineligible, for a period of three (3) years beginning from the date of appointment, to hold appointive public office for the City of Austin, to serve as paid staff for or as a paid consultant to the City of Austin, the city council of the City of Austin or any member of the city council of the City of Austin, or to receive a non-competitively bid contract with the City of Austin. This three (3) year ban on having a paid consultancy or entering noncompetitively bid contracts applies to the member individually and all entities for which the member is a controlling person.

 

Members of the Ohio Constitutional Modernization Commission have themselves acknowledged the value of having non-elected officials on the commission. At the January 14, 2016 meeting, Gov. Taft commented, and Rep. Curtin agreed, that members of Congress ought to be banned from sitting on the redistricting commission.#9 Sen. Tavares went further, proposing that such a ban should also extend to current members of the General Assembly.#10

 

 

Even after the passage of Issue 1, there is no requirement in the Ohio Constitution that the redistricting commission will reflect either the demographic or political diversity of the state.

By contrast, the provisions of the California Constitution specifically require that 4 of 10 members of that state’s independent redistricting commission be independents and, likewise, requires efforts be made to ensure that there is geographic and ethnic diversity on the commission.#11

 

Given the demographic complexity of Ohio, the Commission should consider whether similar provisions would be beneficial for the Ohio Commission. Such a provision could be particularly important given that three of seven positions on the redistricting commission are filled by statewide elected officials, who it is entirely conceivable could hail from a single part of the state, be of a single ethnicity or otherwise not be broadly reflective of the state’s populace.

 

A commission that accurately reflects the demographic makeup of the entire state—including factors such as geography, race, and ethnicity—would improve the redistricting process. A diverse redistricting

commission is important because individuals from a particular community are presumably the most familiar with and knowledgeable about their community’s needs. A commissioner from the Akron area, for example, could draw from her understanding of local demographic and geographic nuances to create districts that are more representative of Akron communities. Likewise, a commissioner from Cincinnati could potentially create better and more representative districts in southwest Ohio than a commissioner from Youngstown. For this reason, it is important that as many geographic regions, as well racial and ethnic groups, as possible be represented on the commission.