This op-ed was originally published by the Daily Journal.
By Associate Clinical Professor Jessica A. Levinson
The political blood sport, commonly known as redistricting, hit a fever pitch on June 10, when California's newly-minted independent redistricting commission presented draft maps to the public. Simply put, every 10 years we count how many people live here, and then we draw legislative lines according to that demographic information. While this may not sound particularly spicy, determining who draws district lines and how those lines are drawn evokes a legal and political struggle of epic proportions. Political wonks, voting rights attorneys, and interested members of the public know that where district lines are drawn can dictate the composition and balance of power in the state legislatures and Congress.
In 2008, California voters approved Proposition 11, a Gov. Arnold Schwarzenegger-supported ballot initiative that took the power of drawing state legislative lines away from legislators. Instead of legislators drawing their own legislative lines, Proposition 11 provided that a 14-member independent redistricting commission comprised of five Democrats, five Republicans, and four Independents would draw district lines for the State Assembly, state Senate, and Board of Equalization.
The oft-repeated purpose of Proposition 11 was to create a system in which the voters chose their legislators, and not the other way around. California has long been the poster child for gerrymandered districts, which reflect a legislator's desire to draw herself a safe district, but not necessarily one that best represents demographic realities. Looking at the last lines drawn by the Legislature in 2001 perhaps best elucidates this phenomenon. In that year, the Legislature accomplished two rarities. First, they agreed on something. Second, they were successful at their stated purpose.
In 2001, legislators agreed to what some call the "incumbency protection program." The Legislature drew lines with a focused purpose, to retain power and create safe elections free of a dirty word known as "competition." This plan was a rousing triumph. But for lawmakers forced out because of term limits, incumbents have sailed through the last decade with little fears of individuals known as challengers.
The problem, of course, with the incumbency protection plan is that while it is a boon for legislators, it may not be quite so beneficial for constituents. The population is best served when lines are drawn to keep so-called "communities of interest" together.
California voters, perhaps mindful of the last 2001 redistricting plan, and certainly distrustful of one of the least popular groups in the state - legislators - passed Proposition 20 in 2010. Proposition 20 essentially asked California's independent commission redistricting to draw congressional district boundaries in addition to the district boundaries for the State Assembly, state Senate, and Board of Equalization.
The 14-member commission must follow a specific set of ranked criteria when mapping state and federal legislative districts. First, districts must be of equal population and must be drawn in compliance with the Constitution. Second, districts must comply with the federal Voting Rights Act. Third, all parts of districts must be physically connected (this concept is known as contiguity). Fourth, the commission must try to keep political subdivisions, communities of interest, and neighborhoods intact. Proposition 20 defines a community of interest as "a contiguous population which shares common social and economic interests that should be included within a single district for purposes of its effective and fair representation." Fifth, district lines should be drawn to respect the principle of compactness. Sixth, throughout the State Assembly, districts must be "nested" in Senate districts.
While the other criteria are relatively straightforward - although even with a definition, determining what is a community of interest is far from clear-cut - it is worth taking a closer look at the 1965 Voting Rights Act. The two pertinent sections are Sections 2 and 5. Section 2 prohibits discrimination on the basis of race, color, or language minority statuses in voting. "Language minority" is defined in the Voting Rights Act as Asian, Native American, Alaska Native, or Spanish heritage.
Section 2 can be contravened through intentional discrimination or vote dilution. Essentially, a redistricting plan could dilute minority voting strength by restricting the ability of a protected class of voters to elect the candidate of their choice. The two methods of accomplishing vote dilution are through "packing" and "cracking."
First, packing refers to a situation in which minority voters are packed into one district, instead of distributed across a number of districts in which minority voters could exert their influence. Put another way, packing occurs when there is an over concentration of minorities in a lower than ideal number of districts. Second, cracking refers to the splitting up of minority voters so that minority voters lack a majority or significant portion (and hence voting strength) in a district.
To simplify, Section 2 dictates that if a minority group forms a majority in a district (meaning it is a so-called "majority minority district") that minority's power should not be diluted by packing or cracking. Proving a Section 2 violation is no easy task. The burden of proof is on the plaintiff.
In addition, Section 5 of the Voting Rights Act requires that certain jurisdictions obtain federal preclearance prior to implementing changes such as redistricting. In California, four counties are subject to this preclearance list - King, Merced, Monterey, and Yuba. Essentially, and very generally, Section 5 requires the Department of Justice to ensure that the redistricting plan does not harm the status of minority voters (is not "retrogressive") and is not implemented for a discriminatory purpose.
Perhaps even as significant as what the commission must consider, is what they need not take into account. The commissioners are charged with drawing lines without regard to where incumbents reside, and whether certain boundaries could benefit or harm the political parties. It is therefore highly unlikely that we will see a repeat of the incumbency protection plan of 2001.
The commission will present its final maps on August 15. But there's one more wrinkle in this tale. Those maps must be approved by four of the five Democrats, four of the five Republicans, and three of the four Independents on the commission. This could prove to be a difficult hurdle to overcome. If the commission cannot agree, the state Supreme Court will appoint special masters to draw the lines. That is what happened in 1991 when the Legislature and the governor could not agree on a redistricting plan. By many accounts, the special masters did a fair and successful job.
At a time when we are once again watching the ceaseless partisan wrangling that occurs every year on the state and federal level when our legislators try to cobble together a budget, it is easy to see why the makeup of the Legislature is so important.The commission is now going up and down the state on another listening tour to get feedback on the draft maps.
For more information on the commission go to www.wedrawthelines.ca.gov.