Let’s make some sausage, the first half
When we last saw our intrepid hero…. He was explaining why redistricting by partisan actors is a bad thing. It’s been about a month, so it may be worthwhile to go back and read the last few in the series.
|The magic answer to redistricting
So you’ve decided you’re going to change the world and fix redistricting. Great! Now let’s talk about how. How, you ask? Yeah, how. It’s not like you’ve got the magic answer to the problem. Unless you’re smarter than, well, everyone, you have to make a lot of difficult decisions when you’re trying to reform an integral (constitutional!) part of the government.
This piece will outline the first half of decisions you have to make along the way as you develop a reform proposal. This may not be entirely applicable to every place in the country, but it’s what we went through in Virginia.
Decision 1: The legislative vehicle. Choosing the manner in which you’re going to make this change is the first and, arguably, most important decision you will make. And it’s going to vary from state to state. In some states, you have a referendum and petition process, where you can get something on the ballot and launch a public campaign. In other states, you don’t have that option open to you. In some states, you may be able to, via legislation, change the rules of the legislative process to accomplish your goal. Arizona, for instance, did it by constitutional referendum a back a decade ago, adding a new section to the state constitution. Iowa changed their constitution, too. In Virginia, there is no petition for referendum and no way for the public to get a legislative question on the ballot. And amendments to the state constitutional are particularly difficult.
To change the constitution in Virginia, you need to pass an amendment in the legislature, hold an intervening election, and then pass it again. This makes the process to amend the constitution in our state difficult and time consuming. It also means that any organization dedicated to this type of reform has to be long-term sustainable – an expensive proposition for so esoteric an issue as redistricting reform. There are also some additional practical implications: The House and Senate won’t even hear amendments in the relevant committees on even numbered years. It is for these reasons that we decided to forgo the constitutional amendment route for regular legislation. This means a couple of things here in the Commonwealth. First and foremost, it means that there is no way to explicitly remove the map-drawing power from the General Assembly. (At this point, if you haven’t, you should review the first post for the details on district drawing in VA).
At this point, you may reasonably ask, why even bother? And that’d be a fair question. The answer lies in the difference between hard power and soft power. First, you can use the legislative process to constrain the procedural options available to the legislature. Then you can create a system which constrains the politically-palatable options to those you’d rather they did take and makes the ones you don’t like more difficult.
Structure’s impact on behavior. It is worth dwelling on this point a bit, because these assumptions underlie the rest of this post. The structure of a governmental body has a huge influence on the behavioral norms of the body. For example, the US Senate as originally designed, with its 6 year terms, state-based appointment, and smaller size, results in a body that is slow, aloof, rich, procedure heavy, and collegial. As another example, governments with winner-take-all elections tend to have fewer parties than those with proportional representation because it’s so hard to win as a third or fourth party. None of these outcomes are written into the US Constitution, but they are artifacts of the structure. The US Senate could be as loud, raucous, and obnoxious as the US House, but it’s not. Structure influences norms. In the same way, we want to design a redistricting system which is structured so as to create a set of positive norms in both the redistricting entity itself and, more importantly, in the members of the legislature who have the final say. Remember these points for when we get to the last, and most important part of the legislation we put together – the legislative process.
Decision 2: So who makes the decisions? Ok, so you’ve decided that the legislature shouldn’t be making the decisions on redistricting reform. And neither should their pollsters, data experts, political consultants, or anyone else, for that matter, who has a conflict of interest. You want to take it out of their hands and put it in to the hands of….. who? Good question. Most reform efforts look at the question in reverse: Who do we want to keep out of the room? And then they limit who can be on a redistricting commission. Our effort innovated in this area, looking to who we already trusted to be in the room and have them do it.
So let’s ask ourselves: Who do we trust to make difficult decisions in an impartial and apolitical way? People who are used to – or even trained – to work through complex legal problems and make good decisions. Maybe even a group of people who have already been cleared by the legislature?
Give yourself 10 points if you said “judges.” But we don’t want to suddenly encourage the legislature to only approve very political judges in the hopes it helps their redistricting chances. So we need judges who have been around a long time, with a proven record, and who wouldn’t be beholden to the partisan needs of the legislators who hired them some 20 years ago… Give yourself another 10 points if you said “retired judges.” (If you said “retired judges” first, give yourself 50 points, superstar).
A (currently sitting, moderate Northern VA Republican) member of the General Assembly, who had never before been supportive of redistricting reform, told me that this one new idea was what kept him from unceremoniously kicking me out of his office when I first came to pitch the idea.
This innovation later proved problematic, but we’ll get to that in a few posts.
So the next question then: of all the retired judges in Virginia, how do you choose a small number of them?
Decision 3: Choosing the choosers. Our legislation set up a system wherein the leadership of the General Assembly (the Speaker of the House of Delegates, the minority leader of the House of Delegates, the President pro tempore of the Senate, and the Minority Leader of the Senate) each chose a commission member from a pool of retired judges nominated by the Supreme Court. The Commission members then chose a chairman from the pool, making a commission of 5 members.
There are lots of ways you could do this. A senior (now former) member of the House suggested to me that you could make a commission appointment process work like jury selection: Choose randomly from the pool of all retired judges and give each party a series of pre-emptory challenges. I thought that was clever, but the legislation had already been drafted by the time I had a chance to talk with him about it.
We built in additional protections as well – restricting people who were family of members of the legislature, those who worked for political parties, actual members of congress and former politicians, etc.
Decision 4: Criteria. So now you have the people on our commission – five retired judges who don’t have some additional conflict of interest. Now, ask yourself a question: What are the rules under which they draw their lines? These are the all-important Redistricting Criteria and we’ll cover them in detail in the next piece.
We’re going to cut this discussion in half since we’re getting a bit long. In our next episode, we’ll continue the discussion by looking at the following issues:
– What are the criteria by which a Redistricting Commission should draw lines?
– Do you trust your commission members? Or do you restrict the kind of data they can use?
– What do you do, in terms of legislative process and structure, to make it politically painful for legislators to reject the work of a commission?
– Maintaining transparency.
– Expecting the unexpected in your legislated time line.
David Solimini is a political strategist and the owner of ADco Creative Productions. 2007-2008 he was the Executive Director of the Virginia Redistricting Coalition. He is currently the Media Director of the Truman National Security Project. Solimini holds a BA from the College of William & Mary. He can be reached at email@example.com.