The big redistricting story of 2011: 'We, the People'

By Associate Professor Justin Levitt

For my own contribution to the "11 on '11" kickoff of the Loyola Law School blog, I'd like to focus on redistricting. Every 10 years, the electoral districts of local, state and federal representatives are redrawn to keep pace with population movement. This cycle begins again in just a few months, as the Census Bureau releases the results of the national Census. Redistricting will then flare across the national consciousness for a few short moments, leaving scholars and pundits the remainder of the decade to interpret for a confused public the import of the process for the electoral landscape. For observers of the political process, redistricting is much like the medieval reappearance of a decennial comet--only with a lot more litigation.

At least three developments merit special attention in 2011. All revolve around the role that we, the people, have in redistricting.

One: The first is our latest attempt to assert control over the process. In most jurisdictions, legislators are in charge of drawing their own district lines or the lines they hope to inhabit. Because the composition of a district can have a direct and substantial impact on an incumbent's job security, legislators are naturally tempted to pick and choose voters based on personal or partisan reward or punishment. Districts have been drawn to include prominent donors or exclude promising challengers, notably including then-state Senator Barack Obama. When practiced by insiders with a stake in the game, the process can be the most vicious of political bloodsports.

Six states, however, have handed the redistricting reins to individuals who are not themselves elected officials. California is the latest of these, with a 2008 ballot initiative establishing a citizens' commission to draw state legislative districts, and a 2010 sequel extending the commission's authority to congressional lines. Such commissions may be justified by their capacity to prevent the worst conflicts of interest; as I've written, however, they are not political panaceas, and if mishandled, risk substantial downside to accompany the potential upside. California's commission will begin its inaugural run in just a few months. Many eyes will be watching to see whether this commission presents a model--or a warning.

Two: In 2011, we, the people, will have unprecedented capacity to draw our own district maps. Pending software applications promise free redistricting tools to complement increasingly affordable commercial packages, and each redistricting cycle yields more civic groups who understand the mechanics and political import of the process. The infrastructure for input is better developed than ever before.

The immediate impact of this capacity is still uncertain. As Susan Boyle demonstrated, visual stereotypes can be powerful; it is not clear whether would-be public redistricters will be able to get beyond visually pleasing grids or circles to district lines that better reflect the goals of representation. And despite vigorous efforts to extract transparency from those who draw the lines, redistricting is still more often than not a back-room process; many maps drawn by members of the public will receive at most a courteous thank-you before they are circularly filed. But in a few jurisdictions, these new public tools may cause those with the redistricting pen to sit up and take note of what constituents say that they want. That, in itself, would be a significant development.

Three: 2011 is also likely to bring a series of redistricting battles about who "we, the people" are. In the last few years, lawsuits have raised several issues concerning citizenship in the redistricting process. As commentators have recognized, these may be the opening salvos of a coming war.

For example, when drawing districts of roughly equal size, some have questioned whether those drawing the lines should include every person, citizens and noncitizens alike. (Where to count each person -- an issue now most prominent in the context of incarcerated individuals -- is a different issue.) Courts have generally left the choice to each local jurisdiction, which have generally chosen to count everyone. As Judge Alex Kozinski recognized, these choices involve differing conceptions of republican values; the majority view favors representational equity over voting equity. That is, assuming that we want legislators to represent their entire districts (including noncitizens, and children, and those who aren't registered to vote, and those who voted for the other guy in the last election), counting everyone means that you get equal representation no matter which district you're in. This seems to me the right value to emphasize; in apportioning congressional seats among the states, the Framers thought so too. Still, the proposition is contested, and likely to be grist for litigation in the next cycle.

The Voting Rights Act, by contrast, focuses more on effective voting power than on breadth of representation within a district--and so it is not surprising that citizenship plays a different role here. Section 2 of the Voting Rights Act preserves racial and ethnic minorities' opportunities to elect candidates of choice, under certain circumstances. In 2009, the Supreme Court decided that only communities of minorities large enough to form the majority of a district's voting-age population were entitled to this protection; lower courts, similarly focused on voting power, have generally set the bar at a majority of voting-age citizens. But that abstract rule runs headlong into a pragmatic hitch in 2011: while the Census tracks voting-age population by tallying every possible resident, it only estimates citizenship rates, with reliability that varies with the size of the jurisdiction. It is not yet clear whether courts will require a standard of proof for Voting Rights Act claims that the data can't satisfy. It is clear that the fight will be worth keeping an eye on.