Tim Storey of the National Conference of State Legislatures (NCSL) will be the lead witness tomorrow as the California Assembly Elections Committee holds its first hearing on redistricting commissions. Reporters were given what Steve Maviglio of Speaker of the Assembly Nunez’s office described as a “curtain raiser” on what Storey will have to say.
The NCSL is a bipartisan group representing all 50 state legislatures and takes no position on what should be done. Storey is a senior fellow with NCSL in their Denver, Colorado headquarters and has been the staff director on redistricting for them for 18 years and has authored many articles on the redistricting and elections processes. He has intimate knowledge of the process used in all states on this subject. Every two years, he leads NCSL’s elections project tracking and analyzing the outcome of state legislative races and statewide ballot questions.
Storey emphasized at the outset that he stays away from the politics involved and outlined how he sees his role tomorrow:
“I am certainly not naïve of how political redistricting can be I tend to keep a pretty safe distance from the actual politics of it in any given state.…I think my task tomorrow is to help the committee understand some groundwork just about some other states approach the process. There really are three ways that redistricting is done for state legislatitve districts and I think we are going to focus primarily on that, not so much on Congressional Districts, although I’m happy to talk about that as well.”
Almost three quarters of the states (37) have the legislature draw lines, and of the thirteen who use a commission to actually draw the lines, in only three does the legislature not have appointing authority.
He then launched into what was supposed to be a 5 minute overview of what the other states use for their processes on redrawing lines. He went on a bit longer, but gave an excellent encapsulation of what is in use. Here is what he had to say:
By far the most predominant way is legislatures themselves draw the legislative lines. I t goes through the traditional legislative process. Bills are introduced with competing plans, hearings are held and votes are taken and ultimately the bill moves on to the Governor. That is the case in 37 state including California currently.
In fact, there are two states where the bill does not go to the Governor–in North Carolina and Florida–the governor does not have veto authority. So I guess that’s a subset of the legislative approach.
There are 12 states that use a commission or a board (the same thing by a different name) to conduct legislative redistricting. By the way, there are 6 states have Congressional seats by redistricting by commission and in 5 of the states it is the same board or commission that does both Congressional and legislative redistricting.
But in the 12 legislative commission states, the make up really does vary considerably from state to state. It’s like everything; they’re all kind of different and a little bit the same. Some typical elements in 9 of the 12 states, the legislative leaders have some of appointment authority to determine who the commissioners are. I think that’s partially because the commissioners need to have some understanding of the redistricting process.
One thing I’ve learned in the almost 20 years I’ve been working on this issue is that it is extraordinarily complex. In fact, I’m often very sympathetic to reporters who have to frame this for listeners and readers in a way they can grasp without a whole lot of background because of the way that it has become really remarkably complex, primarily because of primarily now because of the federal law that now frames redistricting. The Voting Rights Act is certainly the most complex aspect of that. The case law from the Supreme Court on the Voting Rights Act is extraordinary in both its depth and the level of understanding that it takes to understand the history of that.
California is one of 16 states that has to have at least part of its redistricting plans pre cleared by either the US Justice Department or the District Court for the District of Columbia so it’s particularly relevant for California being what’s called a “Section 5 voting rights state.”
So, on top of that you have “one person one vote” requirements which may seem fairly simple on the surface but there’s actually a body of case law that manages that as well.
And then you have state constitutional criteria which varies from state to state. Most states have contiguity requirements, some states have compactness criteria, for example and these things have become increasingly complex.
And then, by the way, you inject a certain amount of political background and you need to have some understanding of databases and extreme volume of data and the complexity of the IT operation to manage all of this data. So, it’s a pretty complex enterprise and I think that’s part of the reason that in many of these states the people who come to the table have some exposure to redistricting and idea of how it’s going to play out at the end of the day when it’s implemented for elections and for governing in the legislative branch.
So, the size of the commission varies. The smallest is a 3 person commission in the state of Arkansas. It’s probably the most unique border commission in Arkansas–It’s the Governor, the Secretary of State, and the Attorney General who draw the legislative redistricting plan and actually enact the legislative redistricting plan, I think that raises some serious separation of powers issues, but that is how they do it in Arkansas.
And the largest commission is one in Missouri where the house plan is drawn by an 18 member commission. Most of the commission systems also come with a set of criteria that kind of govern the process.
I take a lot of questions and do a lot of media calls about this and typically this question of competitiveness comes up. There are only two states that formally list competitive districts as a criteria and that’s Arizona and Washington. In Washington, it only has advisory impact, so it’s not really a factor in Washington state.
In Arizona, it is a factor, and what’s interesting about that is here we are in the year ending in 7 and Arizona is still actually litigating the meaning of competitiveness. The courts have not established a firm definition of what is a competitive plan and so that is ongoing.
And there are a few states that have advisory commissions where they produce a plan and submit it to the legislature. Maine gets a commission plan that has to get two-thirds of a vote of a chamber to change it. So it has a supermajority override component or that commission plan becomes law.
And there are 6 states that have a back up commission of some kind, so the legislature gets a set amount of time and then if they’re unsuccessful, it defaults to a commission.
And, of course, the ultimate default is you would have a challenge filed in a court. … The U.S. Supreme Court has said that Federal Courts must defer to both state legislatures and state courts to resolve redistricting conflicts before intervening. Even if there are Federal Voting Rights questions, those are things they would review after the plan has been actually produced.
Iowa is far and away the most unique approach to redistricting and it’s not because they have a commission. Because in fact they have sort of an advisory commission but they really don’t produce the plan. The plans are produced by the legislative staff who are nonpartisan employees of the legislature. What makes it unique is that they are prohibited by Iowa statute from using any political information, so they don’t know incumbents’ home addresses, they don’t know party registration figures, and they don’t know election returns and results–any kind of political data not used in Iowa. And they produce a plan sort of in a vacuum strictly based on the population data from the census bureau.
Then they submit that plan to the legislature which can then vote it up or down and they cannot amend it. If they reject the first set of plans, and it’s package of plans–House, Senate, and Congressional–they get a second set of plans from the legislative staff, and if they reject those, they get a third set of plans and on the third set of plans they can actually amend those. So the legislature can reengage in the process in Iowa. It’s often misportrayed by folks as being a commission system, but it’s really not.
When asked about how common it was to have commissions have political data and whether it was needed in California’s case, he said that it was common. Iowa is somewhat unique in this regard. In California, this information will be needed, not necessarily in drawing the plan, but in reviewing it because of the Federal preapproval under section 5 of the Voting Rights Act. It is needed in some states in order to comply with the criteria used, such as competitiveness.
We also learned that in the three states where the legislature doesn’t either draw the plan itself or have direct involvement in the appointing process, the political parties appoint commission members in New Jersey, in Missouri the governor makes the appointments, and the other is Arkansas.
No state has gone to a random selection process of the kinds some are talking about in California. He is familiar with the plan rejected by California 2005 which would have been unique in how the commission is selected.
Some other states see the need for legal or technical expertise in commission members because there is a learning curve, typically up to a year to understand the census data and for coming up to grips with the law in this area.
The size and roles of staffs also vary from state to state. The typical model is to “detail” legislative staff out to the commission to collect the data, get the technical systems working, before the commission meets.
The volume calls for reform on redistricting has gone up, perhaps because of Texas. So far this year more than 25 states have considered proposals, but so far none has passed one. In the last two year period preceding this year, 23 states looked at proposals.
Expect more questions tomorrow, and hopefully a better understanding of the law and technicalities in this area so that legislation can be ready to move quickly if there is consensus in the days and weeks ahead.