[EL] My Response to Doug Johnson's Post " rebuttal to Halberstam article on local redistricting"

[Douglas Johnson]

Halberstram's allegation that I made a claim  "that the VRA has been a “political and financial disaster” is so flagrantly false and insulting as to convince me he's not interested in an honest discussion. 

 

For those on this list interested in respectful and factual discourse, here's my actual quote: "Then there's the model remedy: states imposing a Voting Rights Act Section 5 preclearance-style process of controlling local redistricting. This is a political and financial disaster for local governments." Note that Halberstram's proposed state system, which I compared to Section 5 preclearance in terms of its structure in this quote, has nothing to do with voting rights.

 

The rest of this rebuttal is also deeply flawed and mistaken, but it appears unfortunately clear to me, from the insult mentioned above, that the author is not interested in a discussion of facts and policy.

 

- Doug

 

Douglas Johnson

Fellow

Rose Institute of State and Local Government

m 310-200-2058

o 909-621-8159

douglas.johnson at cmc.edu

 

 

From: mhalberst23 at gmail.com [mailto:mhalberst23 at gmail.com] On Behalf Of Michael Halberstam
Sent: Tuesday, September 04, 2012 7:06 AM
To: law-election at UCI.edu
Cc: Douglas Johnson
Subject: My Response to Doug Johnson's Post "[EL] rebuttal to Halberstam article on local redistricting"

 

This is to correct only some of the most significant errors in Mr. Johnson's review [way below] of my forthcoming article, Process Failure and Transparency Reform in Local Redistricting: Harnessing the Power of 21st-Century Technology to Fix 19th-Century 

Democracies, to appear in Election Law Journal (URL  <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103841> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103841).

The review suggests that my article argues for “centraliz[ing] control of local redistricting in state hands,” calling this “an absurd solution.”

*   In fact, the article argues the opposite.  It offers a solution for reforming local redistricting that preserves local autonomy, not just over the redistricting process itself, but also – and this point is made explicitly – over the choice of the design of the local redistricting process.  (p. 62).

The review suggests that my article argues for “imposing a Voting Rights Act Section 5 preclearance-style process of controlling local redistricting,” that would be “a financial and political disaster for local governments.”

*  In fact, the article proposes creating a statewide database for a state’s local redistricting data.  This would centralize a service to local governments that is currently provided (if contracted for at local discretion) by private consultants, such as Mr. Johnson’s National Demographics Corporation (URL  <http://www.ndcresearch.com/contact.html> http://www.ndcresearch.com/contact.html).  Private consultants charge local jurisdictions for collecting the data and building datasets.  A statewide redistricting clearinghouse would provide such information for free.  It stands to reason that one database with widespread access would lower aggregate costs, not increase them.

The review states that my article’s "claim to accurately survey and evaluate local redistricting in California and Arizona is deeply flawed."

*  In fact, the article makes clear that my independent research is primarily on New York State (pp. 11, 40 - 50).  Arizona is mentioned in three footnotes, and other scholars’ analyses of California are summarized and cited in several places.  An effort was made to contact at least some state and local election officials in every state to inquire about the availability of local redistricting data. 

The review claims that necessary redistricting data for local jurisdictions in AZ and CA is readily available, and implies that local redistricting data is generally available.

*   In fact, we have found this is not the case in New York State.  The availability of data and reports in New York State is very variable, and at local discretion.  It is relatively rare for data to be available from which citizens can develop redistricting alternatives.   Gathering information about redistricting in New York localities is tortuous.  The Brennan Center gave up on such a survey.  In general, local government processes and performance are virtually unstudied and unknown, outside the largest places.  The article carefully qualifies and supports its claims about other states in this regard (“Obtaining redistricting data at the local level in New York State is complicated in ways that may or may not apply in other states,” p. 46).

*   All the same, the review’s claim that local redistricting data is readily available in California is not true in the experience of other redistricting experts, such as Karin Mac Donald, director of California’s Statewide Database at U.C. Berkeley, whose separate consultancy, Q2, also was the consultant for the California Redistricting Commission.  According to Mac Donald, and others, local redistricting is not available to the public easily, and sometimes not at all.  The fact that Mac Donald, who heads up the state’s database for state legislative redistricting, cannot get a GIS file from the City of Oakland in which she resides (as she reports to be the case for over six months now), belies the review’s claim that all relevant information is “easily available to any local resident interested in the process.”

The review denies my claim that “many local jurisdictions cannot afford outside consultants.”

*	 In fact, in New York State most jurisdictions rely on in house personnel, if they have them, or on volunteers (as in Beacon, NY).

The review claims there is no need for the state to provide redistricting data services to local governments, and that the suggestion is, as it were, “absurd.”

 

*         In fact, in California, private redistricting consultants for local jurisdictions – including NCS – rely on California’s centralized statewide database for data to fulfill their contracts.  Other states, like Tennessee (URL: <http://www.comptroller1.state.tn.us/lg/ActiveMapCounties.asp> http://www.comptroller1.state.tn.us/lg/ActiveMapCounties.asp) provide centralized websites and redistricting data services to their counties (but not to other local jurisdictions), thus making the process appear – at least from our initial, limited conversations with state and county officials – a much more orderly process.

Mr. Johnson and I agree that “the public policy need is to constructively engage the people who live in a given jurisdiction in that jurisdiction’s redistricting process”; except that Johnson appears to want to keep everyone else out, including the “redistricting junkies,” “academic researchers,” the state, the DOJ (based on his claim that the VRA has been a “political and financial disaster”) . . .  and who else?  But outsiders, and in particular those state-level and national public interest organizations, such as the League of Women Voters, Common Cause, Fairvote, the NAACP, the ACLU, MALDEF, PRLDEF, the Brennan Center, and many others, are the ones with the expertise to educate local groups on how to intervene in the local redistricting process in a timely fashion to protect their interests.  It is the lack of timely access to useful data and critical information that makes it hard to engage people who live in a given jurisdiction constructively on that jurisdiction’s redistricting process.  I offer a proposal to change that.

 

Michael Halberstam

Associate Professor

S.U.N.Y. Buffalo Law School

Buffalo, NY 14260

mhalbers at buffalo.edu

 

On Thu, Aug 30, 2012 at 1:52 PM, Douglas Johnson <djohnson at ndcresearch.com> wrote:

[This is a long rebuttal to the article on creating state entities to oversee local redistricting distributed to this list. Delete, with my apologies, for those not interested in this issue. 

 

For those only slightly interested, here is the heart of the objection I raise: 

"[There is] a fundamental flaw in the author's thinking: the author approaches this issue from a 'redistricting junkie' view, focused on how to, from a remote location, acquire information, follow, and influence redistrictings occurring simultaneously in a large number of local jurisdictions. But that's not the public policy need. The public policy need is to constructively engage the people who live in a given jurisdiction in that jurisdiction's redistricting process. A state clearinghouse -- even in the unlikely event it could be built successfully -- will do nothing for that resident except siphon off money and time from the process in a probably-unsuccessful attempt to centralize information in an obscure website and, eventually, enable state authorities to exert political control."]

 

(Disclosure: my firm, National Demographics Corporation, served as consultant to over 100 local jurisdictions in California and Arizona in the 2011 redistricting cycle, including jurisdictions where redistricting is directly controlled by the elected officials, where it's controlled by commissions that lack independence from elected officials, and where it's controlled by an independent commission.)

 

For anyone still reading, here are my concerns about the article:

 

Perhaps this article reflects accurately the state of local redistricting in New York (about which I know nothing), but its claim to accurately survey and evaluate local redistricting in California and Arizona is deeply flawed.

 

Re: Comments on the California State Redistricting Commission

 

First, its tangential praise of the California state redistricting commission is questionable:

Procedural transparency is achieved in part by applying California’s open meeting laws to the selection of commissioners, as well as to the line-­‐drawing process itself. Meetings, hearings, and line-­‐drawing sessions are all open to the public. Video-­‐recordings and transcripts of meetings, public comments and submissions are all posted online and made publicly available on the CRC’s website. The website itself also includes some mapping tools (as recommended by the AEI-­‐Brookings principles of transparency) to allow the public to manipulate the data and submit proposed districts for consideration by the CRC and by the general public. It is worth noting that public participation was an important goal of the CRC’s process transparency efforts.

 

Most of the important line-drawing by the CRC was done in secret, with one to three commissioners meeting behind closed doors with technical staff to produce maps for a given area that were then presented and usually accepted by the full commission. As the other commissioners were also serving on similar subcommittees for their own regions, there was a strong institutional pressure encouraging autonomy and deference. Deference to the secret work of these subcommittees was certainly not universal, but it did predominate. And the polarized voting study, cited in most of the major decisions of the Commission, remains secret.

 

Also, mapping tools were not provided to the public by the Commission. In fact, when the legislature voted to approve supplemental Commission funding to provide an online redistricting tool, the Commission specifically voted to tell the legislature "thanks, but no thanks."

 

Re: "Free" redistricting GIS software

 

Second, the article's description of the "free" District Builder program is false. While the software license is, indeed, free, no data and no local geography comes with that license, and of course no one to set it up, host and support is included in the "free" cost. Hosting the system, setting it up, and creating the database requires expertise and time that costs even small local governments well into the tens of thousands of dollars (or more). In contrast, all but the largest of my local clients who wanted online redistricting options for residents paid only $9,500 for a soup-to-nuts built, hosted & supported online redistricting solution (not using District Builder).

 

Re: Shallow consideration of local redistricting in CA & AZ and questionable assumptions about influence in local redistricting

 

More to the central point of the article, the review of local redistricting shows a shallow review of reality, at least in terms of California and Arizona.

 

First, the comment that "Many local jurisdictions cannot afford outside consultants." This may be the perception if the author only interviewed the big-dollar state redistricting firms, but shallow in that there are a number of small firms that focus on local redistricting and often do projects for less than $10,000. The fact that my firm served over 100 local jurisdictions in CA and AZ, about half for under $10,000, and that there are at least three firms that compete with my firm and similarly serve local governments in these two states alone, shows that this comment is incorrect.

 

The article's brief return to state issues is similarly simplistic: "purely self--‐interested redistricting on the part of legislatures seems almost impossible at the statewide level. There are simply too many structural hurdles and competing political goals." For the obvious rebuttal, review California's 2001 redistricting (among many other examples).

 

Then there is this claim: "Neighborhood groups outside of the very large cities are unlikely to have much voice in congressional districting because of their relatively insignificant size." In fact, small cities often elect Councilmembers in small elections, where a group of 20 activists (and the 50-100 votes they swing) can often change an election. My experience is the exact opposite of the author's: an active neighborhood group can command enough votes to overcome virtually any data-driven incumbent advantage an incumbent's gerrymander might provide, so neighborhood groups that get involved in local redistricting carry enormous influence.

 

Regarding the author's frequent complaint about a "lack of data": the author seems to describe the (undisputed) difficulty for an academic to collect data from the literally thousands of local jurisdictions in a state. This has virtually nothing in common with the important question: how hard is it for a resident to get data from his/her local jurisdiction. In every jurisdiction I worked with (again, that was over 100 in the 2011 cycle in CA and AZ), the maps, demographics, options, schedule and process were all posted on the jurisdiction's website and distributed at every official and informal forum, making them easily available to any local resident interested in the process.

 

Re: Role of GIS data in local redistricting

 

The author's views are further flawed in the state-centric in the obsession with GIS data. A majority of local jurisdictions are small enough that GIS is not needed for constructive public participation in the process (though it obviously is nice to have). For 30 years our firm has distributed paper maps and printouts of demographic data, and hundreds of local residents have used those kits to evaluate proposed plans and to draw and submit their own redistricting plans (our record is one resident of Glendale Arizona who submitted 14 proposed plans drawn using only paper, pen, and calculator). In 2005 we supplemented that with an excel spreadsheet available for excel-savvy residents. When used with the paper maps, this greatly increased the ease of the work developing a plan. Menifee, California (population: 77,500) appointed a citizen's committee to draw plans and the committee worked only with this excel-and-paper combination to come up with its recommended plan that was then adopted by the Council. GIS is nice (and a number of local jurisdictions made online redistricting options available to their clients), but not required to participate effectively in the local redistricting of the overwhelming majority of jurisdictions.

 

Then there is this quote: "Experience from California and New York suggest that once the redistricting process is over a lot of data is lost." This unsupported quote about California appears to me to be as weak as its (completely non-existent) supporting evidence.

 

Re: Proposed Remedy costs a fortune and probably delivers nothing (except saving time for academics and making millions for the consultant hired by the state to build the near-useless website)

 

Then there's the model remedy: states imposing a Voting Rights Act Section 5 preclearance-style process of controlling local redistricting. This is a political and financial disaster for local governments. As readers of this list are aware, it is well-established that the preclearance process imposes expenses on state and local governments ranging from tens of thousands to hundreds of thousands of dollars. The author urges imposing this approach on every local government. 

 

Note also that DoJ does not post any proposed plans online. States implementing the author's recommendation face a never-before-done requirement to provide GIS support and online data provision to enable public access to these plans (which, in virtually every case in CA and AZ, are already available on the local government websites). This is a multi-million dollar expense for the state. I beg to differ with the author's claim that "As the successful precedent of Voting Rights Act preclearance suggests, reporting to a central database (if not a central authority), and standardizing such reporting, is feasible and can lead to dramatic improvements in the process." The California Statewide Database, which provides only *.zip file downloads and no online map development capabilities, costs millions of dollars to build and support for a decade, and do not include in that budget any of the outreach advocated by the author. Furthermore, as was extensively discussed during California redistricting and highlighted on this list in Justin Levitt's recent article, the statewide database provides none of the local election or polarized voting data so crucial to redistricting decision-making.

 

The following line appears naive but I suspect is consciously avoiding reality: "the federalism issues that plague Voting Rights Act preclearance would not arise with regard to state--‐ mandated disclosure of local redistricting information." This may be literally true (though not necessarily true for Charter cities, Charter counties and Charter School Districts in CA & AZ), but it comes across as hiding one's head in the sand about the financial and political cost, and the battle that comes with imposing this massive expense and clear political leverage tool over local government, to say nothing of the multi-million dollar expense imposed on the state government to set this up. 

 

A realist would also note that California has spent years and millions unsuccessfully developing a statewide clearinghouse of voter registrations, which still does not exist. Despite that evidence, the author now expects the state to build a "Web 2.0" system to collect, use, and distribute all information about every aspect of hundreds of simultaneous local government redistricting projects? How is that view anything but absurdly naive?

 

Then there is a fundamental flaw in the author's logic: "RDCs would promote process transparency by offering a public communications platform and website for local jurisdictions to inform participants and other stakeholders about the timeline, process, and substantive developments of their redistricting process in standardized formats." This assumes that some obscure state website location, format, and usage will be well known to the average neighborhood activist. It is MUCH more likely that a person willing to get engaged in local government redistricting is already familiar with, and expecting to access information on, his or her own jurisdiction's website.

 

My Conclusion: Author's perspective is fundamentally flawed

 

This gets to a fundamental flaw in the author's thinking: the author approaches this issue from a 'redistricting junkie' view, focused on how to acquire information, follow, and influence redistricting occurring simultaneously in a large number of local jurisdictions. But that's not the public policy need. The public policy need is to constructively engage the people who live in a given jurisdiction in that jurisdiction's redistricting process. A state clearinghouse -- even in the unlikely event it could be built successfully -- will do nothing for that individual except siphon off money and time from the process.

 

This fundamental flaw is reflected in this absurd statement by the author: "At least the major local jurisdictions try to publicize such process data anyhow – except that many jurisdictions do not presently have any logical place do so. " The jurisdiction's own website is the obvious answer, and it is where the residents of the jurisdiction will expect to find the information. From the author's writing it appears that something odd is happening with government websites (or a lack thereof) in New York (I'm desperately withholding many funny comments here), but  it is a huge mistake to attribute that failure to local government nationally.

 

Re: Who has oversight over local redistricting now in AZ & CA

 

In California and Arizona, local redistricting is coordinated by counties, not states. This presents a logistical challenge to researchers, but the role of government is not to centralize authority simply to make life easier for academic researchers. In these two states, counties draw precincts, manage parcel maps (and manage the assignment of parcels to the appropriate jurisdiction), and manage voter registration rolls and the assignment of voters to the appropriate jurisdictions. But -- with only one very unusual exception outside the scope of this discussion -- counties do not have any authority over local redistricting. Counties have only an implementation role. And the state has essentially no role in local redistricting.

 

As the author (and previous authors) illustrate, with redistricting comes political power. Authority over redistricting means power, and that power will inevitably be used to achieve political goals. A solution that centralizes control of local redistricting in state hands will inevitably lead to state (and partisan) intervention in local redistricting. That's an absurd solution if the problem is only the academic researcher's difficulty with collection of data.

 

- Doug

 

Douglas Johnson

President

National Demographics Corporation (NDC)

djohnson at NDCresearch.com

m 310-200-2058

 

(Also, Fellow at the Rose Institute of State and Local Government at Claremont McKenna College)

 

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, August 30, 2012 8:22 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 8/30/12

 


“Process Failure and Transparency Reform in Local Redistricting: Harnessing the Power of 21st-Century Technologies to Fix 19th-Century Democracies” <http://electionlawblog.org/?p=39317>  


Posted on August 29, 2012 11:35 am <http://electionlawblog.org/?p=39317>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Michael Halberstam has posted this draft <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103841>  on SSRN (forthcoming, Election Law Journal). Here is the abstract:

Redistricting reform during this cycle has pushed for greater transparency in redistricting, more public participation, the removal of redistricting from the hands of legislatures, and the design of more legitimate redistricting institutions and decision procedures. Reform efforts, however, are generally focused on statewide and congressional redistricting. Meanwhile, little, if anything, is being done to reform or study thousands of local redistrictings across the country, which typically take place under the radar. Local redistricting processes, moreover, vary between jurisdictions and levels of government, take place in institutional contexts that differ from statewide redistricting, are subject to different political dynamics, and are more vulnerable to serious process failures than statewide redistricting. This article advances a policy proposal to reform local redistricting that weds aspects from several contemporary governance approaches – including so-called ‘third-generation transparency” methods. The article suggests that sates establish centralized statewide redistricting clearinghouses for local redistricting (RDCs) that would standardize and systematize the disclosure of redistricting data and process information across the whole range of jurisdictions within a state. It sets forth the proposed design of such RDCs in some detail upon a careful dissection of the concrete information requirements of the different governmental and nongovernmental actors at each stage of the redistricting process; and of the institutional and political dynamics of local processes. The proposal envisions adapting new technologies to address process failures, but leaving existing local institutional arrangements in place.

Apart from its specific intervention in the national debate about redistricting reform, this article can also be read as a contribution to the broader literature about new governance approaches, and more specifically, as a case study on how certain mechanisms of “targeted transparency” or “choice architecture” can be applied to regulating the democratic political process. 


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-- 
Michael Halberstam, J.D., Ph.D.

Associate Professor

S.U.N.Y. Law School

University at Buffalo

Buffalo, NY 14220-1100

Tel: 716.645.5130

mhalbers at buffalo.edu

 

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