[EL] Ornstein gerrymandering article's facts are wrong
Justin Levitt
levittj at lls.edu
Thu Dec 4 10:55:16 PST 2014
FWIW, I'm not sure l agree with Doug.
The Iowa process has been frequently described, but just as frequently
misunderstood. I discuss it on p. 52 of this PDF
<http://ssrn.com/abstract=2239491> (copied in relevant part below).
Perhaps the most relevant bit is that the state legislature's still in
charge in Iowa. Not only does it have the ability (an ability it has
not indulged) to simply impose its own maps over the nonpartisan
agency's objections, but the entire process (as Norm says) is a creature
of _statute_: if the Iowa legislature wanted to get rid of the process
tomorrow, it could, without a plebiscite.
Maine's process is essentially the same: there is a commission, yes, but
it only draws congressional districts because the legislature told it to
by statute, and even under the existing statute, the legislature can
ignore the commission entirely and swap out its own map if it wishes.
That's not true in any of the other states Doug mentions. Right now,
the legislature is not responsible for drawing the lines in California,
or Arizona, or Idaho, or Hawaii, or Montana (should it get more than one
district), or Washington, or New Jersey. If the legislature wanted to
draw congressional district maps itself, it could not lawfully do so
under the state constitution. And as a legal matter, the Court's
decisions on constitutional structure suggest that if a legislature has
been divested of constitutionally required authority, it's not
particularly important who originally put the measure on the ballot
divesting the legislature of that authority. (In each of these states
other than Hawaii and New Jersey, there exists the threat/possibility of
popular initiative, which may help explain why the legislature made
changes to their own power.) If (a big if) the constitution says that
the legislature has to draw the lines, period, under the Court's
precedent on constitutional structure, it's not more OK for the
legislature to ask the people to take that power away than for the
people to take that power away on their own.
Justin
***
the Iowa excerpt:
Iowa's much-misunderstood redistricting process is a curious
departure from this model [of legislative control]. It has been upheld
by many as a national paragon of "nonpartisanship." At first glance, it
appears that both rules and structure are responsible. Iowa's
legislative services agency (LSA)---a body established by statute as a
nonpartisan agency and that hires employees subject to civil service
procedures and limitations---maintains ministerial control of the
process. The LSA applies several redistricting criteria set by statute,
which provide outer constraints on the expected partisan effect. Where
these statutory criteria permit discretion, the LSA must look for
guidance to a commission of nonofficeholders, four of whom are selected
by the legislative leadership but governed by a chair selected by
supermajority vote.
So far, so good. It appears that both rules and structure would
constrain partisanship in the redistricting process. But the LSA and its
advisory commission are, in a significant sense, merely placeholders.
When the LSA draws congressional and legislative districts, it submits
those plans to the state legislature, which may approve or reject them
(and suggest changes). If the first plans are rejected, the LSA will
draw an expedited second set of plans, which the legislature may approve
or reject. If those second plans are rejected, the LSA will draw an
expedited third set, which the legislature may approve or reject---or
modify at will. That is, the state legislature has the authority to
completely revise the LSA plans for tribally partisan purposes as long
as it has sufficient patience. But in four cycles of redistricting since
the LSA took primary responsibility for the process, the legislature has
never exercised the option to simply substitute its own plan.
Even more remarkable is the fact that the regime continues to exist
at all. The roles of the LSA and its advisory commission are both set by
statute. So are all of the substantive criteria. Thus, the legislature
could repeal both the rules and the structure at any point, if its
members were primarily interested in pursuing narrow self-interest in a
fashion unregulated by the Iowa Constitution or federal law. It has not
done so, even when the process produces districts pairing, and thus
threatening, incumbent legislators.
--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
On 12/4/2014 10:02 AM, Douglas Johnson wrote:
>
> Unfortunately Mr. Ornstein has his facts and conclusion wrong in this
> article. At the heart of the article is his claim that:
>
> "With the exception of Iowa, where the state Legislature turned the
> drawing of lines over to a nonpartisan agency in 1981 after disputes
> and deadlocks handed the power to the Iowa Supreme Court, the one
> outlet for change has been using the initiative process to implement
> such commissions."
>
> There are, in fact, nine states with congressional redistricting
> commissions, not three: California, Arizona, and Iowa are joined by
> Idaho, Maine, Hawaii, Montana, Washington and New Jersey.
>
> [For details, see our Rose Institute Report "Redistricting in America:
> A State by State Analysis
> <http://redistrictingonline.org/uploads/Rosereport_on_redistricting.pdf>"
> (published in April, 2010, before California gave control of
> Congressional redistricting to its commission) and Dr. Michael
> McDonald's "A Comparative Analysis of Redistricting Institutions in
> the United States, 2001--02
> <http://datadrivendetroit.org/wp-content/uploads/2011/03/McDonald_ComparativeAnalysisRedistrictingInstitutions_2004.pdf>,"
> published in 2004), both published before the November 2010 addition
> of California to the 'Congressional redistricting by commission' group.]
>
> As noted by Mr. Ornstein in the article, Iowa's commission was created
> by the legislature via statute. But he misses that Maine, Hawaii,
> Idaho, Montana, Washington and New Jersey were all created by measures
> put on the ballot by the legislature. Only the Arizona and California
> commissions were created by initiatives put on the ballot via signatures.
>
> One may debate the level of independence of the various commissions,
> but all are at least as structurally independent as Iowa, so the
> omission should not be due to the form of the commission.
>
> Mr. Ornstein's conclusion that "If the Supreme Court throws out these
> redistricting commissions, we can kiss good-bye any efforts to
> effectively change the redistricting process, to reduce the pernicious
> effects of gerrymandering," is incorrect -- the
> delegated-by-the-legislature-by-choice redistricting models of Iowa,
> Maine, Hawaii, Idaho, Montana, Washington and New Jersey are likely to
> remain valid and legal.
>
> -Doug
>
> Douglas Johnson, Fellow
>
> Rose Institute of State and Local Government
>
> at Claremont McKenna College
>
> douglas.johnson at cmc.edu <mailto:douglas.johnson at cmc.edu>
>
> 310-200-2058
>
> *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, December 4, 2014 9:16 AM
> *To:* law-election at UCI.edu
> *Subject:* [EL] ELB News and Commentary 12/4/14
>
>
> "The Pernicious Effects of Gerrymandering"
> <http://electionlawblog.org/?p=68793>
>
> Posted onDecember 3, 2014 8:05 pm
> <http://electionlawblog.org/?p=68793>by*Rick Hasen*
> <http://electionlawblog.org/?author=3>
>
> Norm Ornstein
> <http://www.nationaljournal.com/washington-inside-out/the-pernicious-effects-of-gerrymandering-20141203>on
> the Arizona case coming to SCOTUS.
>
>
>
>
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