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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Future Redistricting Reform Must Learn from this Year's Mistakes

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November 15, 2005

Cynics say that there is now no chance at nonpartisan redistricting reform, given the overwhelming defeat last Tuesday of the proposals on ballots in California and Ohio. Although sadly cynics are often correct, there are two good reasons for disbelieving the cynics this time.

First, this year's redistricting proposals were flawed both procedurally and substantively. Second, at least in Ohio, opponents of the ballot measure - rather than gloating over their victory - have pledged to pursue a different version of redistricting reform and have offered to work with the failed measure's proponents to develop a proposal both sides can agree on.

The procedural mistake in both California and Ohio was to include redistricting reform in a package of ballot measures that the voters correctly perceived were politically one-sided, not the even-handed measures they purported to be. Redistricting reform, to be successful, must be genuinely nonpartisan, but in neither state this year could voters be confident of this.

In California, Governor Schwarzenegger combined Proposition 77, his redistricting proposal, with Proposition 75, which would have restricted the political activities of labor unions representing public employees. In Ohio, the reform group responsible for Issue 4, that's state's redistricting issue, also sponsored Issue 3, a campaign finance measure that would have given a new advantage to labor money unavailable to corporate money.

Labor unions consequently fought vociferously to fight Schwarzenegger's so-called reform package. Likewise, business interests worked hard to undermine the pro-labor effort in Ohio.

In both states, huge sums of money was spent to defeat the ballot measures, and the TV ads attacking them tended not to differentiate among the specific proposals, arguing instead that they all should be rejected as an improper partisan power-grab. Given the large number of measures on the ballot (four from Schwarzenegger in California, eight in all; four from the reform group in Ohio, five in all), combined with the complexity of the redistricting proposal in each state, voters were reluctantly uncomfortable to approve a supposedly "neutral, fair-minded" proposal that had come under such withering criticism for being egregiously one-sided and deceptively so.

Voters in each state, in other words, weren't sure whether the redistricting measure was a Trojan Horse - the proverbial wolf in sheep's clothing. But since it was pretty easy to see (especially after the opposition's campaign got underway) that the other parts of the "reform" package on the ballot were partisan, and hardly neutral at all, voters were understandably suspicious.

Thus, in both California and Ohio the redistricting proposals were tainted by their association with anti-labor or pro-labor efforts. Lesson Number One from Election 2005, then, is straightforward: don't package redistricting reform with other measures, especially ones that take sides in the perennial battles between business and labor interests. Redistricting reform, if true to its own professed goal of achieving an unbiased electoral system, needs to remain pure and cannot become sullied by forming alliances with interests on one side or the other of the great partisan divide.

But guilt-by-association was not the only reason Prop 77 and Issue 4 were defeated. Both proposals were substantively defective in certain critical details, and these defects were exposed and exploited by their opponents.

Both shared the same flaw of requiring one round of mid-decade redistricting, a feature that increased the suspicion that they were designed for the short-term advantage of one party as much as for the long-term health of the system as a whole. Beyond that, the California proposal relied upon retired judges to make redistricting decisions, an element that was easily attacked for being insensitive to the state's increasing cultural diversity (old-timers being unrepresentative demographically, as well as potentially out of touch with current conditions, trends, and values).

In Ohio, Issue 4 had a particularly severe flaw: it relied heavily on a virtually incomprehensible mathematical formula that, once understood, was revealed to cause districting maps as convoluted and bizarre-looking as those it was designed to replace. The mathematical formula elevated "competitiveness" as a districting criterion above contiguity and respect for traditional city and county boundaries. While "promoting competitive elections" may sound good in the abstract, it cannot be achieved without serious adverse affects in a state where Republicans reside in certain distinct localities (mainly rural counties and more southerly suburbs), while Democrats live in different places (mainly cities and more northerly suburbs).

Ohio is a state that overall is quite competitive between Republicans and Democrats. Although Republicans have won virtually all statewide offices in recent years, and President Bush famously won the state narrowly in both 2000 and 2004, Clinton carried the state twice in the two previous elections, and Democrats can point to other statewide wins in recent decades. Nonetheless, being closely divided between Ds and Rs statewide does not mean each locality within the state is likewise closely divided. As long as both houses of the state's legislature are closely balanced between both parties (which they are not because of partisan gerrymandering), there is no need for most legislative districts to be tightly competitive. Instead, districts drawn according to the traditional criteria on compactness and respect for traditional local boundaries will result in a sensible map that yields quite a few uncompetitive districts, yet fairly represents the constituents of the state overall.

Once the editorial boards of the state's major newspapers saw this flaw in Issue 4, most of them urged their readers to reject it as a cure at least as bad as the gerrymandering disease. In essence, then, many Ohio voters asked themselves, "Why trade one crazy map for another?"

Lesson Number Two of Election 2005: redistricting details matter, and it is important that reformers get them right by submitting their proposals to rigorous field tests (including focus groups and critical examination from potentially hostile experts) before putting them on the ballot. The resources needed to mount an initiative campaign should not be squandered on defective measures that could have been fixed in the drafting process.

It would have been nice if reformers had learned these two lessons ahead of time. But the good news, at least in Ohio, is that the process of defeating this year's proposal has led to widespread recognition - and agreement - that the state needs a better version of redistricting reform on the ballot next year.

If Republicans and Democrats, business and labor, can jointly sponsor a redistricting measure in 2006, it stands an excellent chance of adoption. Indeed, one measure on the Ohio ballot this year, unrelated to the four reform proposals, was enacted: a public works financing plan that received this kind of bipartisan support.

Despite what cynics may say about the likelihood of a bipartisan redistricting proposal, both Republicans and Democrats in Ohio may see such an effort as in their own party's particular self-interest. Republicans have suffered from severe scandals in the state recently and may wish to go to the voters next fall, when all the major statewide offices are up for grabs, as the party of reform. (Given the announcement last week from Republican leaders that their party will seriously pursue a reform alternative in the wake of Issue 4's defeat, it may look doubly bad if by next November they have failed to deliver on this promise.) Likewise, Democrats, who have suffered from the Republican's partisan manipulation of district lines in most recent round of gerrymandering, may wish to return to an even playing field.

But even if it proves impossible to get bipartisan support for a new redistricting reform proposal, it does not follow that a well-designed reform plan necessarily will go down to defeat. If proponents of reform observe Lessons One and Two, then they can go to the voters with a redistricting measure that stands on its own, untainted by collateral partisan disputes, and which truly can be promoted as fair and impartial. In this context, any future opponents of such a virtuous proposal will come across as crassly attempting to cling to an unfair advantage as a result of previous gerrymandering.

In neither California nor Ohio were reformers able to conduct the public debate in these terms. In short, this year the reformers could not convince the public that they truly were acting in the public's interest. Therefore, the defeat of Prop 77 and Issue 4 do not forecast what will happen if and when reformers learn their lessons and therefore rightfully earn the public's trust.