Redistricting: A Shadowy Process Needs Sunlight

It is clear to anyone who is paying attention that the American redistricting system is in need of reform. The districts which make up the building blocks of representative democracy are nearly always designed by politicians whose jobs (both current and future) and political power are determined by the way the lines are drawn. Already political strategists and party leaders are talking openly about the need for the major parties to capture state legislatures and governors' mansions in 2010, so that their party would be in the best position to manipulate the redistricting which will follow the decennial census. Where politicians are unable to draw districts which decidedly skew the process towards their own party, they generally conspire with politicians on the other side of the aisle to create "safe" districts for both sides such that no incumbent need fear a serious general election challenge.

Just as obvious as the need for reform, however, is the difficulty of achieving it. The foxes guarding this particular henhouse are not eager to give up their posts or their power, and the kind of political pressure necessary to force the issue is difficult to muster. It is even more difficult in a time when war, rising food and gas prices, and a declining economy understandably overshadow the arcane issue of redistricting in the eyes of voters. Voters need to be made aware that redistricting does affect who we elect as our leaders, which in turn shapes our policies as a nation, from the wars we fight to the economic conditions we face.

One intriguing notion, proposed by Yale Law Professor Heather Gerken in an editorial in Legal Times and on the blog Balkanization, offers the potential to take a small step toward better redistricting while simultaneously helping to pave the way for larger steps to come. Professor Gerken suggests the creation of a new body, composed of nonpartisan experts in redistricting, to act as a sort of "shadow" redistricting commission. This body could use its expertise to design districts based on community input and values of competition and fairness instead of incumbent protection and partisan advantage. Such a shadow commission would be easy to create, requiring only publicly available census data, reasonably inexpensive redistricting software, and a group of respected, nonpartisan community members. While the plans drawn by such a commission would of course have no binding legal effect, as Professor Gerken explains they would have a positive impact in several ways.

First, a shadow redistricting commission would offer a sharp contrast to the official redistricting process. The shadow commission's districting plan could be used to highlight problems in any subsequent plans adopted by politicians in the legislature -- either to demonstrate the unfairness of a partisan districting scheme or to point out incumbency protection in a bipartisan gerrymander. This contrast would provide a way to pressure politicians to scale back the worst excesses of the current process.

The existence of an alternative proposal would also be useful to the courts in the lawsuits that often follow partisan redistricting. Courts in such suits will be better able to identify problems in a districting scheme if a nonpartisan model exists to serve as a benchmark of fairness.

Shadow redistricting commissions would also serve to demonstrate how an expert, genuinely nonpartisan commission could work. Shadow commissions would generate institutional knowledge of redistricting methods, and act as a kind of laboratory for new ideas and new techniques in the redistricting process. They would provide both an advertisement for the creation of official nonpartisan districting commissions and as models for those commissions once they exist.

Perhaps the most important element of this proposal is that it actually has the potential to be implemented. As Professor Gerken points out, this is a virtue sometimes overlooked in academic discussion and in the reform community. Shadow redistricting commissions in and of themselves cannot solve the many serious problems that exist in the districting system. It is also critical that such commissions fairly reflect the communities of interests that are often the victims of unfair redistricting plans, particularly, communities of color. Professor Gerken's proposal would, however, be an important and viable step in the right direction, and as such deserves serious attention and thoughtful consideration.

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