Redistricting commissions: A better political buffer?

Yale Law Journal

Volumn 121, Issue 7, 2012, Pages 1808-1844

  Cain, Bruce E ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84860617710     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (164)

1. 369 U.S. 186 (1962).
2. To be precise, racial discrimination in redistricting can be determined in three ways. A constitutional standard protects against intentional racial discrimination as outlined in City of Mobile v. Bolden, 446 U.S. 55, 62 (1980), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), which determined that there must a "racially discriminatory motivation" to show a Fourteenth or Fifteenth Amendment violation. There is a three-part racial discriminatory effects test under § 2 of the Voting Rights Act.
3. See 42 U.S.C. 1973 (2006), amended by Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134 (1982). This test was developed in Thornburg v. Gingles, 478 U.S 30, 80 (1986), which established a three-prong test of sufficient size, cohesion, and racial polarization while concluding that "use of a multimember electoral structure. caused black voters. to have less opportunity than white voters to elect representatives of their choice."
4. Id. In Growe v. Emison, 507 U.S. 25, 40-41 (1993), the Court held that the three Thornburg prerequisites are also necessary to establish a vote fragmentation claim with respect to a single-member districts. For jurisdictions covered under § 5, there is a non-retrogression rule developed in Beer v. United States, 425 U.S. 130 (1976), which found that § 5 "has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise."
5. Id. More recently, Georgia v. Ashcroft, 539 U.S 461, 497-80 (2003) reaffirmed that a § 2 vote dilution violation is not an independent reason to deny § 5 preclearance, and the Court allowed states the latitude to choose between preserving "a certain number of 'safe' districts" as opposed to a greater number of influence seats.
6. While the Supreme Court held that partisan gerrymandering was justiciable in Davis v. Bandemer, 478 U.S. 109, 109 (1986), it has yet to find a manageable standard for determining excessive partisanship. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 423 (2006) (plurality opinion) (finding that the appellants had not provided "a reliable standard for identifying unconstitutional political gerrymanders"); Vieth v. Jubelirer, 541 U.S. 267, 317 (2004) (Kennedy, J., concurring in the judgment) (refusing to hold that all political gerrymandering cases are nonjusticiable but finding that "[t]he failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make. [the Court's] intervention improper").
7. Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 642-45 (2002) (putting forth a proposal for the Court's future treatment of gerrymandering cases).
8. Nicholas D. Stephanopoulos, Redistricting and the Territorial Community, 160 U. PA. L. REV. (forthcoming 2012).
9. Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 ELECTION L.J. 1, 2 (2007).
10. Heather K. Gerken & Michael S. Kang, The Institutional Turn in Election Law Scholarship, in RACE, REFORM, AND REGULATION OF THE ELECTORAL PROCESS: RECURRING PUZZLES IN AMERICAN DEMOCRACY 86, 86 (Guy-Uriel E. Charles, Heather K. Gerken & Michael S. Kang eds., 2011).
11. Heather K. Gerken, Getting from Here to There in Redistricting Reform, 5 DUKE J. CONST. L. & PUB. POL'Y 1, 7 (2010).
12. For an attempt to create user-friendly open-source software in order to enhance public mapping input, see Micah Altman and Michael P. McDonald, BARD: Better Automated Redistricting, 42 J. STAT. SOFTWARE 1, 23 (2011).
13. Michael S. Kang, De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform, 84 WASH. U. L. REV. 667, 668 (2006).
14. Jeffrey C. Kubin, Note, The Case for Redistricting Commissions, 75 TEX. L. REV. 837, 849-50 (1997).
15. JUSTIN LEVITT, BRENNAN CTR. FOR JUSTICE, A CITIZEN'S GUIDE TO REDISTRICTING 20-22 (2010);
16. Justin Levitt, All About Redistricting: Professor Justin Levitt's Guide to Drawing the Electoral Lines, LOYOLA LAW SCH., http://redistricting.lls.edu/who.php (last visited Jan. 22, 2012).
17. Levitt, supra note 12 (Iowa, Maine, New York, Ohio, Rhode Island, Vermont, and Virginia);
18. 2010 Redistricting: Governor's Redistricting Advisory Committee and Public Hearings, STATE OF MD., DEP'T OF PLANNING, http://www.mdp.state.md.us/redistricting/2010/advisory.shtml (last visited Feb. 24, 2012) (Maryland).
19. IOWA CODE §§ 42.5-42.6 (2011).
20. Id. § 42.3.
21. Kay Henderson, Iowa Legislature Approves Redistricting Plan, REUTERS, Apr. 14 2011, http://www.reuters.com/article/2011/04/14/us-iowa-redistricting-idUSTRE73D4GU20110414.
22. N.Y. LEGIS. LAW § 83-m (Consol. 2011).
23. Thomas E. Mann, Redistricting Reform: What Is Desirable? Possible?, in PARTY LINES: COMPETITION, PARTISANSHIP, AND CONGRESSIONAL REDISTRICTING 101-02 (Thomas E. Mann & Bruce E. Cain eds., Brookings Inst. Press 2005).
24. They are Illinois (ILL. CONST. art. IV, § 3), Maryland (MD. CONST. art. III, § 5), Mississippi (MISS. CONST. art. XIII, § 254), Oklahoma (OKLA. CONST. art. V, § 11A), Oregon (OR. CONST. art. IV, § 6), and Texas (TEX. CONST. art. III, § 28).
25. IND. CODE ANN. § 3-3-2-2 (LexisNexis 2012).
26. CONN. CONST. art. III, § 6(b).
27. For instance, Mississippi's backup commission consists of the Chief Justice of the state supreme court, the Attorney General, the Secretary of State, and the majority leaders of the House and Senate. MISS. CONST. art. XIII, § 254.
28. The majority and minority leaders in both houses of the Connecticut legislature designate two backup commission members each, as well as a ninth member who must be an elector in the state. CONN. CONST. art. III, § 6(b).
29. Those three states are Colorado (COLO. CONST. art. V, § 48), Hawaii (HAW. CONST. art. IV, § 2), and Pennsylvania (PA. CONST. art. II, § 17(b)). In the latter two instances, the court's appointment power is only invoked when the legislature fails to appoint all positions within a certain time period or the commissioners cannot agree on the tiebreaking member.
30. They are Arkansas (ARK. CONST. art. 8, § 1), Colorado (COLO. CONST. art. V, § 48), Ohio (OHIO CONST. art. XI, § 1), Pennsylvania (PA. CONST. art. II, § 17(h)), and Missouri with separate commissions for each legislative house (MO. CONST. art. III, §§ 2, 7).
31. New Jersey (N.J. CONST. art. II, § 2, para. 1) and Hawaii (HAW. CONST. art. IV, § 2).
32. One might wonder whether there is any valid justification for using designation by office type as opposed to explicit partisan balance. The problem with the latter is that unless it is designed to accurately reflect the existing balance between the two parties, the odds are high that one of the political parties will be overrepresented in proportion to its normal electoral strength. Combined with supermajority rules, this can mean that the minority party has a seemingly unfair advantage in the line-drawing exercise. Designation by office type could be defended as a more flexible approximation of party balance in the sense that state elected offices are more likely to be divided as the two parties become more competitive. But it is still a rough approximation rather than an accurate reflection of party strength, and it brings with it all the uncertainty about partisan fairness discussed above.
33. In Colorado, no more than four members of the eleven-person politician commission that draws state legislative lines can live in the same congressional district. There must be at least one commissioner from each congressional district, including at least one commissioner living west of the continental divide. COLO. CONST. art. V, § 48. In the case of New Jersey's state legislative commission, the commission members are appointed with "due consideration to geographic, ethnic and racial diversity." N.J. CONST. art. II, § 2.
34. Sam Hirsch, Unpacking Page v. Bartels: A Fresh Redistricting Paradigm Emerges in New Jersey, 1 ELECTION L.J. 1 (2002).
35. For an example of the importance of the independent tiebreaker, see Mark J. Magyar, Independent Tie-Breaker Promises Open Mind on Congressional Redistricting, NJ SPOTLIGHT, Sept. 7, 2011, http://www.njspotlight.com/stories/11/0907/0000.
36. I say simplistic because I can attest from my own experience as a redistricting consultant that legislators are often pressured by their constituents and supporters to shape district lines in particular ways and that legislators are often loath to ignore their demands for fear of the electoral or fundraising consequences.
37. For a different approach to classifying types of commissions by their degree of independence, see David G. Oedel et al., Does the Introduction of Independent Redistricting Reduce Congressional Partisanship, 54 VILL. L. REV. 57, 68-80 (2009).
38. This approach accords the highest independence to commissions that make binding, primary decisions based on the vote of a "non-political tiebreaker."
39. Id. at 69.
40. My scheme focuses primarily on the progression of LCOI separation but I recognize that independent citizen commissions uniquely combine LCOI separation and the autonomy to enact plans.
41. This distinction of course breaks down in the real world since more than a few state legislators typically set their sights on running for Congress, and the personal and political ties between state legislators and congressional members are often quite strong.
42. ARIZ. CONST. art. IV, pt. 2, § 1(3)-(8).
43. ALASKA CONST. art. VI, § 8-10; ARIZ. CONST. art. IV, pt. 2, § 1(14); CAL. CONST. art. 21, § 2; IDAHO CONST. art. 3, § 2(a); MONT. CONST. art. V, § 14; WASH. CONST. art. II, § 43(1).
44. Alaska and Montana. See Table 1. Apportionment Population and Number of Representatives, By State: 2010 Census, U.S. CENSUS BUREAU, http://www.census.gov/population/apportionment/data/files/Apportionment%20Population%202010.pdf (last visited Feb. 3, 2012).
45. WASH. CONST. art. II, § 43(7); WASH. REV. CODE ANN. § 44.05.100 (2012).
46. ALASKA CONST. art. VI, § 8; MONT. CONST. art. V, § 14; IDAHO CODE § 72-1502 (2006).
47. ARIZ. CONST. art. IV, pt. 2, § 1(3)-(8).
48. CAL. GOV'T CODE § 8252(b)-(g) (West 2006).
49. Two studies conclude that redistricting has had little impact on partisan polarization in the U.S. House of Representatives. See NOLAN MCCARTY, KEITH T. POOLE & HOWARD ROSENTHAL, POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES (2006);
50. Stephen Ansolabehere, James M. Snyder, Jr., & Charles Stewart III, Candidate Positioning in U.S. House Elections, 45 AM. J. POL. SCI. 136 (2001).
51. A third study of partisan polarization in the California legislature comes to a similar conclusion. See ERIC MCGHEE, REDISTRICTING AND LEGISLATIVE PARTISANSHIP (2008), available at http://web.ppic.org/content/pubs/report/R_908EMR.pdf.
52. There was a time when bipartisan fairness seemed a desirable reform goal and even received an ever so mild blessing from the Supreme Court. In Gaffney v. Cummings, 412 U.S 735, 751-54 (1973), the Court held that a "political fairness principle" that achieves a rough approximation of the statewide political strengths of the two major parties does not violate the Equal Protection Clause.
53. The disclosure that the Democratic Party seemed to have organized a grassroots effort to persuade the CRC to draw lines that were more favorable for Democratic incumbents by organizing witnesses from the local community and flooding the CRC with testimony-some of which came from front groups or undisclosed paid lobbyists-created considerable turmoil and may lead to future reforms aimed at further disclosure rules and a more careful vetting of testimony before the CRC in the next decade.
54. Olga Pierce & Jeff Larson, How Democrats Fooled California's Redistricting Commission, PRO PUBLICA, Dec. 21, 2011, http://www.propublica.org/article/how-democrats-fooled-Californias-redistricting-commission.
55. RICHARD HASEN, THE VOTING WARS: FROM FLORIDA 2000 TO THE NEXT ELECTION MELTDOWN (forthcoming 2012).
56. RICHARD P. NATHAN, THE ADMINISTRATIVE PRESIDENCY (1983) (describing how political appointees are used to put the administrative structure more in sync with the President's policies).
57. Bruce E. Cain, Califormula for Dysfunction, 6 AM. INT. 107, 107 (2011).
58. Proposition 11 (Cal. 2008) (codified at CAL. CONST. art. XXII), available at http://voterguide.sos.ca.gov/past/2008/general/title-sum/prop11-title-sum.htm.
59. Proposition 20 (Cal. 2010) (codified at CAL. CONST. art. XXI), available at http://cdn.sos.ca.gov/vig2010/general/pdf/english/text-proposed-laws.pdf#prop20.
60. As with Tom DeLay's effort in Texas two decades later, Congressman Burton's outrageous disregard of traditional redistricting norms was motivated by the desire to enhance his power in Congress by adding new Democrats to the caucus ranks. Neither the 1982 California nor the 2002 Texas congressional redistricting are usual cases, but they both figure prominently in the motivations for both political and judicial reform of redistricting.
61. Bruce E. Cain, Assessing the Partisan Effects of Redistricting, 79 AM. POL. SCI. REV. 320, 331 (1985).
62. The Long Reapportionment Trail: A Calendar of Confusion and Controversy, CAL. J., March 1983;
63. Redistricting in California: Redistricting 1980, U.C. BERKELEY INST. OF GOVERNMENTAL STUDIES, http://igs.berkeley.edu/library/research/quickhelp/policy/redistricting/reapp80.html (last visited Jan. 23, 2012).
64. J. Morgan Kousser, Redistricting: California 1971-2001, in GOVERNING CALIFORNIA (Gerald C. Lubenow & Bruce E. Cain eds., 1997) (providing a narrative history of California's redistricting over three decades and the numerous attempts to reform the process).
65. Tony Quinn, The Bipartisan Redistricting: How It Happened, CAL-TAX DIGEST (Oct. 2001), http://www.caltax.org/member/digest/oct2011/10.2001.Quinn-BipartisanRedistricting.08.htm (describing the rationale).
66. In fact, while the evidence regarding the effect of the 2001 plan on competitive seats is strong, the evidence for centrist legislators is not. See ERIC MCGHEE, PUB. POLICY INST. OF CAL., REDISTRICTING AND LEGISLATIVE PARTISANSHIP 1-4 (2008), available at http://www.ppic.org/content/pubs/report/R_908EMR.pdf.
67. Prop. 77 (rejected by Cal. Special Statewide Election, Nov. 8, 2005), available at http://library.uchastings.edu/ballot_pdf/2005s.pdf.
68. On then-Governor Schwarzenegger's support for the redistricting reform initiative, see Vote "Yes" on Props 74, 75, 76 & 77, JOIN ARNOLD, http://digital.library.ucla.edu/websites/2005_997_008/www.joinarnold.com (last visited Feb. 6, 2012).
69. The Ohio measure defined competitiveness in a manner that only a political scientist could love. It required that the commission adopt a qualifying plan with the highest "competitiveness number," as defined "by a mathematical formula, that is the product of the number of balanced districts multiplied by two, plus the total number of other remaining competitive districts, minus the total number of unbalanced uncompetitive districts multiplied by two." Apparently, there were not enough political scientists in the state to tip the balance, as the measure lost with 30% in favor and 70% against.
70. For the text of the measure, see State Issue 4: Amended Certified Ballot Language, OHIO SEC'Y OF STATE, http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2005ElectionsResults/05-1108Issue4/State%20Issue%204%20Amended%20Certified%20Ballot%20Language.aspx (last visited Feb. 6, 2012).
71. For the final vote tally, see State Issue 4: November 8, 2005, OHIO SEC'Y OF STATE, http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2005ElectionsResults/05-1108Issue4.aspx (last visited Feb. 6, 2012).
72. See, for instance, Bryan Llenas, California's New Election Map Draws Fire from GOP and Latino Groups, FOX NEWS LATINO, Aug. 16, 2011, http://latino.foxnews.com/latino/politics/2011/08/16/new-california-redistricting-passes-but-latino-opposition-remains;
73. Jim Miller, Redistricting: Commission Certifies Maps amid Criticism, Looming Challenge, PRESS ENTERPRISE (Riverside, Cal.), Aug. 16, 2011, http://www.pe.com/local-news-headlines/20110816-redistricting-commission-certificates-maps-amid-criticism-looming-challenges.ece.
74. CAL. CITIZENS REDISTRICTING COMM'N, FINAL REPORT ON 2011 RESDISTRICTING 2 (2011).
75. CAL. GOV'T CODE § 8252(a)(2)(A) (West Supp. 2011).
76. Bonnie E. Glaser & Karin MacDonald, Implementation of Proposition 11, Step One: Setting the Rules, Soliciting Applications, and Forming a Commission (Sept. 2011) (unpublished manuscript) (on file with author).
77. See CAL. GOV'T. CODE § 8252(g).
78. All of the members had college degrees and many also had graduate degrees. The CRC's website We Draw the Lines featured the picture of a worker in a hard hat even though it is quite likely that none of the CRC had ever worked in one. CAL. CITIZENS REDISTRICTING COMM'N, http://wedrawthelines.ca.gov (last visited Nov. 28, 2011).
79. CAL. CONST. art. XXI, § 2(d).
80. Id. § 2(d)(4).
81. The CRC actively solicited testimony to help define communities of interest. On its website, it asked the public for "[t]he economic and social interests that bind your community together," "[w]hy your community should be kept together for fair and effective representation," and "[w]here your community is located." It maintained that "[w]ithout that information from you, the Commission won't know which communities to keep together when drawing lines."
82. California Citizens Redistricting Commission's Guide to Redistricting and the Public Input Process, CAL. CITIZENS REDISTRICTING COMM'N (Apr. 19, 2011), http://www.wedrawthelines.ca.gov/downloads/meeting_handouts_apr2011/learnmore_20110419_guidebook.pdf.
83. However, party registration data and results from past political races matched to the new districts were available through free public websites almost immediately after plans were released by the CRC.
84. See for instance, REDISTRICTING PARTNERS, http://redistrictingpartners.com (last visited Jan. 23, 2012), for the Democrats;
85. MERIDIAN PACIFIC REDISTRICTING 2011, http://www.mpimaps.com (last visited Jan. 23, 2012), for the Republicans. The fact that the CRC was not sequestered like a jury meant that there was no guarantee that the Commission members were unaware of this data.
86. CAL. CITIZEN REDISTRICTING COMM'N, supra note 59, at 1.
87. The CRC operated under the state's Bagley-Keene Open Meeting Act. CAL. GOV'T CODE §§ 11120-11132 (West 2012). It also streamed its hearings live and made hearing transcripts available on its website.
88. Background on the Commission, CAL. CITIZENS REDISTRICTING COMM'N, http://wedrawthelines.ca.gov/commission.html (last visited Jan. 23, 2012).
89. CAL. CONST. art. XXI, § 2(c)(5).
90. In February 2011, 44% of California voters were registered as Democrats, 30.9% as Republicans, 20.4% as decline-to-state or independents, and 4.7% as other parties.
91. Mark Baldasarre, California's Likely Voters, PUB. POLICY INST. OF CAL. (Aug. 2011), http://www.ppic.org/main/publication_show.asp?i=255.
92. The distribution on the fourteenmember CRC was five Democrats, five Republicans, and four independent/decline-to-state members. CAL. CONST., art. XXI, § 2(c)(2).
93. Vladimir Kogan & Eric McGhee, Redistricting California: An Evaluation of the Citizens Commission Final Plans 18 tbl.5 (Sept. 13, 2011) (unpublished manuscript), available at http://polisci2.ucsd.edu/vkogan/research/redistricting.pdf.
94. Id. at 23 tbl.7.
95. Id. at 10-11 tbl.2.
96. For the MALDEF reaction, see Nadra Kareem Nittle, California Minority Groups Offer "Unity" Redistricting Map, NEW AM. MEDIA (July 7, 2011), http://newamericamedia.org/2011/07/unity-map-head-here.php.
97. Nadra Kareem Nittle, Latest CA Redistricting Maps Satisfy Most Minorities-But Not Latinos, NEW AM. MEDIA (Aug. 1, 2011), http://newamericamedia.org/2011/08/latest-ca-redistricting-maps-satisfy-most-minoritiesbut-not-latinos.php.
98. Kogan & McGhee, supra note 72, at 16 tbl.3.
99. Id. at 16 tbl.4.
100. Id. at 23 tbl.7.
101. Id. at 19 tbl.6.
102. Id. at 18 tbl.5 & fig.2.
103. The continued decline in Republican registration and the spread of Latino growth into Republican areas in the Inland Empire and the Central Valley posed problems for the Republicans from the start. Simulations of the likely Republican and Democratic seat shares under good and bad year scenarios do not show radical departures from the status quo.
104. See id. at 26 tbl.8, 29 fig.3.
105. Jim Sanders, Redistricting Panel Chooses Mapmaker After Spirited Debate, SACRAMENTO BEE: CAPITOL ALERT (Mar. 21, 2011, 9:43 AM), http://blogs.sacbee.com/capitolalertlatest/2011/03/resolving-one-key-controversy.html.
106. See the various exchanges between Tony Quinn and Steven Maviglio on the Republican website Fox and Hounds. Search Results, FOX & HOUNDS, http://www.foxandhoundsdaily.com/?s=redistricting (last visited Jan. 23, 2012).
107. CAL. CONST. art. XXI, §§ 2(j), 3(b).
108. See Verified First Amended Petition for Extraordinary Relief in the Form of Mandamus or Prohibition, Vandermost v. Bowen, No. S196493 (Cal. Oct. 26, 2011); Verified Petition for Extraordinary Relief in the Form of Mandamus or Prohibition at 22-28, Radanovich v. Bowen, No. S196852 (Cal. Oct. 26, 2011). The California Supreme Court denied both petitions and the relief sought. Vandermost, No. S196493 (Cal. Oct. 26, 2011); Radanovich, No. S196852 (Cal. Oct. 26, 2011). The Radanovich plaintiffs have refiled their suit in federal court. Complaint for Injunctive and Declaratory Relief, Radanovich v. Bowen, No. 2:11-cv-09786-SVW-PJW (C.D. Cal. Nov. 23, 2011).
109. I was able to observe the Arizona commission as the court-appointed Special Master in 2002.
110. Proposition 106, in ARIZ. SEC'Y OF STATE, 2000 BALLOT PROPOSITIONS 54 (2000), available at http://www.azsos.gov/election/2000/info/pubpamphlet/english/prop106.pdf.
111. Barbara Norrander & Jay Wendland, Redistricting in Arizona, in REAPPORTIONMENT AND REDISTRICTING IN THE WEST 177, 178 (Gary F. Moncrief ed., 2011).
112. Id. at 178-79.
113. Goddard v. Babbitt, 536 F. Supp. 538, 541 (D. Ariz. 1982).
114. Norrander & Wendland, supra note 88, at 178-79.
115. Id. at 179.
116. BETSEY BAYLESS, ARIZ. SEC'Y OF STATE, 2000 ANNUAL REPORT 44 (2000), available at http://www.azsos.gov/public_services/annual_report/2000/annual_report.pdf;
117. David K. Pauole, Race, Politics, and (In)Equality: Proposition 106 Alters the Face and Rules of Redistricting in Arizona, 33 ARIZ. ST. L.J. 1219, 1221 (2001);
118. Rhonda L. Barnes, Comment, Redistricting in Arizona Under the Proposition 106 Provisions: Retrogression, Representation, and Regret, 35 ARIZ. ST. L.J. 575, 577 (2003).
119. Arizona Republican legislators opposed Proposition 106, see Norrander & Wendland, supra note 88, at 180.
120. In California, Proposition 20 was put on the ballot by Charles Munger, a Republican donor. See Gerry Shih, Tackling Redistricting with Money and Zeal, N.Y. TIMES, Oct 7, 2010, http://www.nytimes.com/2010/10/08/us/08bcredistrict.html.
121. ARIZ. CONST. art. IV, pt. 2, § 1(3)-(8).
122. Bruce E. Keith et al., THE MYTH OF THE INDEPENDENT VOTER, at xvi (1992).
123. One can only speculate as to why 2011 turned out to be more partisan. Partisanship generally rose in the United States in the intervening decade, but timing might have also had something to do with the outcome. The Arizona commission got a late start, and by then, the Republican complaints in California were mounting.
124. Letter from Ralph F. Boyd, Jr., Assistant Att'y Gen., U.S. Dep't of Justice, to Lisa T. Hacker & Jose de Jesus de Rivera, AIRC (May 20, 2002), http://www.justice.gov/crt/about/vot/sec_5/az_obj2.php.
125. Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 208 P.3d 676, 682 (Ariz. 2009).
126. Id. at 689.
127. The Kogan and McGhee study estimates that the predicted number of competitive seats rose between the baseline 2001 map to the 2011 final plan from 11% to 15% in the state senate, from 11% to 14% in the assembly, and from 5% to 18% in Congress. See Kogan & McGhee, supra note 73, at 23, tbl.7.
128. Norrander & Wendland, supra note 88, at 191 (finding little evidence that Arizona's election became more competitive after 2002, as measured by the number of unopposed seats, average margin of victory, wins by ten points or less, and bias between seats won and total votes).
129. E-mail from Karin MacDonald, Mapping Consultant to Cal. Redistricting Comm'n, to author (Feb. 24, 2012, 5:43 PM) (on file with author).
130. The chairmanship was rotated on a regular schedule. See Background on Commission, CAL. CITIZENS REDISTRICTING COMM'N, http://wedrawthelines.ca.gov/commission.html (last visited Jan. 23, 2012).
131. Paul Davenport, Arizona AG: Panel Member Said Documents Destroyed, ASSOCIATED PRESS, Sept. 8, 2011, available at http://www.myfoxphoenic.com/dpp/news/politics/state_politics/arizona-ag-panel-member-said-documents-destroyed-apx-09082011.
132. Ginger Rough, Arizona Redistricting Panel Won't Be Changed by Brewer, ARIZ. REPUBLIC, Nov. 30, 2011, available at http://www.azcentral.com/news/election/azelections/articles/2011/11/29/20111129arizona-redistricting-brewer-special-session.html.
133. As an attempt to create a natural experiment in staffing bipartisanship, I agreed to be an affiliated consultant with a Republican team applying for the Arizona Independent Redistricting Commission staff mapping contract, thinking I could test the bipartisan staffing model personally. I was told by my Democratic friends that I had lost my mind and values. In the same redistricting cycle, I was demonized by California Republicans for my involvement in the 1981-1982 state redistricting (despite having established a noncontroversial, nonpartisan data center at Berkeley), and criticized by Democrats for my bipartisan gesture. This does not bode well for the bipartisan staffing model. I suspect that the Iowa Legislative Services Agency is a better model for staffing, leaving the politics to the commissioners.
134. JOINT LEGISLATURE BUDGET COMM., STATE OF ARIZ., FISCAL YEAR 2012 APPROPRIATIONS REPORT 136 (2011), www.azleg.gov/jlbc/12app/FY2012AppropRpt.pdf.
135. Citizen Redistricting Commission Expenditure Summary: Estimates Through January 31, 2012, CAL. REDISTRICTING COMM'N (Dec. 15, 2011), available at http://wedrawthelines.ca.gov/downloads/meeting_handouts_122011/handouts_20111215_crc_expenditure.pdf.
136. The Governor had to demonstrate "substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office" under article 4, part 2, section 1(10) of the Arizona Constitution.
137. See Order, Mathis v. Brewer, No. CV-11-0313-SA (Ariz. 2011), available at www.azcourts.gov/clerkofthecourt/SeparateOrders.aspx.
138. Randall D. Lloyd, Separating Partisanship from Party in Judicial Research: Reapportionment in the U.S. District Courts, 89 AM. POL. SCI. REV. 413, 417 (1995) (showing that district court judges voted against redistricting plans presented by their own party at a lower rate than plans presented by the other party).
139. CAL. CONST. art. XXI, § 2(i)-(j).
140. Martin Wisckol, GOP's Redistricting Lawsuits Thrown Out, ORANGE COUNTY REG., Oct. 26, 2011, http://totalbuzz.ocregister.com/2011/10/26/gops-redistricting-lawsuits-thrown-out/71353.
141. LEVITT, supra note 12, at 21.
142. N.J. CONST. art. II, § II, paras. 1-2.
143. The primary advocate for wider use of the New Jersey bargaining system is Sam Hirsch. See Sam Hirsch, Jenner & Block LLP, A Proposal for Redistricting Reform: A Model State Constitutional Amendment (conference paper presented at the Am. Mathematical Soc'y's Special Session on "The Redistricting Problem," Jan. 8, 2009), available at http://www.americansforredistrictingreform.org/html/documents/HirschRedistrictingPaperforAmerMathSociety.pdf.
144. Seats-votes curves plot seat shares against vote shares and can be used to derive estimates of bias and responsiveness in redistricting plans. See Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. POL. SCI. 514, 534-38 (1994).
145. Two examples are the Columbia University project, DrawCongress.org, run by Professor Nathaniel Persily and the Public Mapping Project run by Professors Michael McDonald and Micah Altman.
146. See DrawCongress.org, COLUMBIA LAW SCH., http://www.law.columbia.edu/redistricting (last visited Nov. 28, 2011);
147. Micah Altman & Michael McDonald, Public Mapping Project, PUB. MAPPING PROJECT, http://www.publicmapping.org (last visited Nov. 28, 2011).
148. On June 7, 2011, two citizens testified before the CRC arguing in favor of a Columbia University plan developed by Professor Nathaniel Persily's student group that kept a Tri-Cities portion of the Bay Area whole in redistricting.
149. See In the Matter of Full Commission Business Meeting (Volume I) (Cal. Citizens Redistricting Comm'n, July 15, 2011), available at http://wedrawthelines.ca.gov/downloads/transcripts/201107/transcripts_20110715_sacto_vol1.pdf.
150. I ran the 1993 Oakland city redistricting in this manner and managed to keep the city council out of the line of political fire for the most part. Only at the end, when one city councilman decided to make a small change to the map, did it cause some controversy.
151. Aside from organized groups, there is an abundance of people with narrow enough definitions of fun to devote hours to the exercise. I am ashamed to say that I have never done it for free.
152. In research conducted under my supervision, Anthony Ramirez took a sample of seventeen CRC meetings and looked at who testified before them. In some cases, the testifiers identified their affiliations, but in many cases, he had to search the Internet to discover their connections. Of the one hundred and twenty-three separate testimonies, he was able to identify that ninety-nine were from individuals affiliated with interest groups ranging from the California Conservative Action group to California Forward, the group that pushed for the CRC redistricting reform and monitored its progress closely. In twelve instances, the individuals were local public officials.
153. Anthony Ramirez, Where Are the Citizens? Not Here (Oct. 26, 2011) (unpublished manuscript) (on file with author).
154. The concept and term originated in ROBERT MICHELS, POLITICAL PARTIES: A SOCIOLOGICAL STUDY OF THE OLIGARCHICAL TENDENCIES OF MODERN DEMOCRACY (Eden & Cedar Paul trans., 1915).
155. MORRIS P. FIORINA WITH SAMUEL J. ABRAMS & JEREMY C. POPE, CULTURE WAR? THE MYTH OF A POLARIZED AMERICA (3d ed. 2010) (arguing that partisan polarization is more evident in political elites than mass opinion).
156. Alan I. Abramowitz & Kyle L. Saunders, Is Polarization a Myth?, 70 J. POL. 542 (2008) (finding that ideological divisions have increased among voters as well as elites, especially among the best informed, most interested, and active voters).
157. Gerken & Kang, supra note 7, at 86.
158. Daniel H. Lowenstein & Jonathan Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory?, 33 UCLA L. REV. 1, 73 (1985).
159. Olu Alemoru, California Redistricting Maps Draw Angry Response, L.A. WAVE, July 13, 2011, http://www.wavenewspapers.com/news/local/west-edition/California-redistricting-maps-125543443.html.
160. Adams v. Comm'n on Appellate Court Appointments, 254 P.3d 367, 369-70 (Ariz. 2011).
161. Wisckol, supra note 121.
162. CAL. CONST. art. XXI, § 3.
163. Oedel, supra note 33, at 82-84.
164. Notes: A = Advisory Commission, B = Backup Commission, P = Politician Commission, I = Independent Citizen Commission. Ohio uses both politician and advisory commissions for its legislative lines.