[EL] Ornstein gerrymandering article's facts are wrong

Thu Dec 4 12:33:35 PST 2014

A ruling against the Arizona commission would mean that every state except
North Carolina (which has no governor veto) would be constitutionally
suspect because the U.S. constitution does not provide a role for a
commission or, logically by extension, a governor in the redistricting
process. Furthermore, with regards to the Times, Places, and Manners of
conducting elections, every election law ever passed by a state government
through the legislative process where the governor has a role or by ballot
initiative would be suspect. Every state constitution that, say, sets voting
eligibility requirements, would be suspect because the legislature did not
have a role. The litigation and chaos that would ensue should make the
Supreme Court blush, at the least.

============
Dr. Michael P. McDonald
Associate Professor
University of Florida
Department of Political Science
234 Anderson Hall
P.O. Box 117325
Gainesville, FL 32611

phone:   352-273-2371 (office)
e-mail:  dr.michael.p.mcdonald at gmail.com                
web:      <http://www.electproject.org/> www.ElectProject.org 
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Douglas
Johnson
Sent: Thursday, December 04, 2014 3:10 PM
To: 'Justin Levitt'; law-election at department-lists.uci.edu
Subject: Re: [EL] Ornstein gerrymandering article's facts are wrong

I think Justin raises valid points about the case and its potential impact:
if the legislature chose to delegate the power to a commission, even if it
takes a vote of the people to approve (and, if desired, to reverse) that
decision, does that commission survive a ruling against the Arizona
Commission in this case? I would assert that remains a good possibility.

Whichever way the debate on that point goes, Maine should have been included
with Iowa in the article, and my point about the article's conclusion
remains: while a Court ruling against the Arizona commission would
definitely set back efforts (including mine since 1989) to establish
redistricting commissions, it would not "kiss good-bye any efforts to
effectively change the redistricting process, to reduce the pernicious
effects of gerrymandering," because the Iowa and Maine models would almost
certainly remain legal, and the Hawaii, Idaho, Montana, Washington and New
Jersey models may (or may not) survive such a ruling.

-          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>
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin
Levitt
Sent: Thursday, December 4, 2014 10:55 AM
To: law-election at department-lists.uci.edu
<mailto:law-election at department-lists.uci.edu> 
Subject: Re: [EL] Ornstein gerrymandering article's facts are wrong

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 <mailto: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 "
<http://redistrictingonline.org/uploads/Rosereport_on_redistricting.pdf>
Redistricting in America: A State by State Analysis" (published in April,
2010, before California gave control of Congressional redistricting to its
commission) and Dr. Michael McDonald's "
<http://datadrivendetroit.org/wp-content/uploads/2011/03/McDonald_Comparativ
eAnalysisRedistrictingInstitutions_2004.pdf> A Comparative Analysis of
Redistricting Institutions in the United States, 2001-02," 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 
 <mailto:douglas.johnson at cmc.edu> 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>
[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 <mailto:law-election at UCI.edu> 
Subject: [EL] ELB News and Commentary 12/4/14

 <http://electionlawblog.org/?p=68793> "The Pernicious Effects of
Gerrymandering"

Posted on  <http://electionlawblog.org/?p=68793> December 3, 2014 8:05 pm by
<http://electionlawblog.org/?author=3> Rick Hasen

<http://www.nationaljournal.com/washington-inside-out/the-pernicious-effects
-of-gerrymandering-20141203> Norm Ornstein on the Arizona case coming to
SCOTUS.

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