Per SCOTUS, initiative created redistricting commissions may be l'histoire

[jimrtex]

Here's an overview of the states/laws that would be impacted.

"The Sky is Falling" (not directed at Miles, but the Brennan Center)

Most of the laws are general in nature and apply to all elections.  If a state constitution permits use of voting machines, then even if a wobbly court decided that the use of voting machines for federal elections was not constitutional, the legislature would simply pass a law permitting use (or they probably already have enacted all kinds of legislation with regard to voting machines).

[jimrtex]

Yeah, I'm not even sure why the AZGOP did this in the first place. Are they that pissed off at Colleen Mathis that they'd be willing to throw the entire party under the bus?

Isn't it the case though, that IA-style commissions may still be constitutional, considering that they've still got some legislative input?

Iowa is a legislature created commission (as opposed to initiative created by the voters without legislative input), as to which the Legislature has some input in any case. It's Constitutionally safe. Ditto for all Court drawn maps, ala NY and MN.

It is the legislature's service arm that prepares the plans.  The legislature must approve the plan (they have rejected a plan in the past).  And they are operating under state statute pass by the legislature.

New York's new commission is more interesting, since it requires legislative approval of the plan (2/3 majority), and permits the legislature to replace a map.  So it in a sense it does not bypass the legislature, but does change the procedure by which certain legislation is enacted.

The purpose of a a State Constitution is to dictate how the government is constituted, particularly the Legislature.  It is essential that the constitution dictate the legislative process.

The next tier would be Florida's law, where the legislature still draws the map, but the Constitution dictates the standards that law must comply with.

[jimrtex]

What is the constitutional rationale behind this? It seems utterly nonsensical to me.

The text of the Constitution, that specifically states that it is the state legislatures that draw the lines, rather than merely referring to the states as having that power.

I assume you refer to Article 1, Section 4: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

First of all, one could make the argument that, in States where popular initiatives are recognized, the people itself constitutes one branch of the "legislature". Since the US Constitution contains no precise definition of the term, the legislature has to mean "those who hold legislative power". If the State Constitution recognizes a right for the people to legislate directly through initiatives or referendums, then the people voting for these initiatives are functionally equivalent to elected representatives voting on a bill.

If the power to alter electoral regulation is vested in the holders of legislative power in a given State, then it follows that citizens have the same right as their representatives to enact electoral regulations. Secondly, the exercise of the power must always come with the possibility to delegate such power to a different body. If the people, in their quality of legislators, resolve to grant their redistricting power to a nonpartisan commission, they are merely exercising their Constitutional right to its full extent.

Is "Legislature" used elsewhere in the US Constitution?   How does that conform to your understanding?

SCOTUSBLOG analysis

Transcript of Oral Arguments

[jimrtex]

There is a simple fix available to states with independent commissions. Follow IA's lead and send plans to the legislature for an up or down vote. In IA the bureau that drafts the bills is given the task of drawing the legislative and congressional maps following statutory criteria. The bureau sends the plans to the legislature for an up or down vote without amendment. If the plan fails it goes back to bureau for another try, perhaps guided by comments the legislature is permitted to send with their rejection. The process is repeated up to three times. If the third plan is rejected, then the matter goes to the courts.

In commission states, just replace the bill drafting bureau with the commission, but otherwise follow that procedure. The legislature stays in the process with the final say on the map.

But in Iowa, didn't the legislature create the structure in the first instance? I am not sure an initiative based law not passed by the legislature, that just has the legislature involved at the end with a mere veto power to send it to the courts, will pass muster, assuming SCOTUS strikes down the AZ structure.

I think that will be a question many will be looking at the opinion to determine. There are lots of initiative-based election laws in states that could be impacted based on the questions from the liberal justices. If the ruling stays narrow to the act of redistricting and overturns AZ, will it be because it was by initiative or because it was a plan without legislative approval. The legislature need not be the sole approver of the plan since most states require the Gov's signature on the redistricting bill. It seems to me that initiatives may still be able to dictate the manner in which the legislature performs its redistricting function, even if they can't strip that function entirely.

The claim is made that voter-approved measures such as this one from Illinois would be in jeopardy.

"No person shall be denied the right to register to vote or to cast a ballot in an election based on race, color, ethnicity, status as a member of a language minority, national origin, religion, sex, sexual orientation, or income."

Is someone going to challenge this because it was too broadly drawn and includes federal elections?

Is it even a manner regulation, or is it a voter qualification regulation?  If a person is qualified to be a voter, what are they qualified to do?  The answer is "cast a ballot".  And if Illinois requires registration as a prerequisite to casting a ballot, isn't that simply an extension of how a person qualifies to vote?

But States have exclusive jurisdiction to regulate the franchise, subject to limitations in the US Constitution.

[jimrtex]

I have always believed that, when two reasonable interpretations of constitutional provisions exist, the Courts should err on the side of judicial restraint. Otherwise, the judicial power oversteps its boundaries and becomes essentially omnipotent. Of course, this has already happened countless times both in history and in recent times.

What would be a reasonable interpretation of the following?

"Removes redistricting authority from the Arizona Legislature"

 

[jimrtex]

Does this have a real chance of getting struck down?

About 2 to 1 odds is my guess. The only hope for the Commission is that Kennedy, after pounding them in oral argument, might reflect and think better of it all. But then Kennedy was a militant when it came to killing off Obamacare. His moderate reputation is waning. Breyer said nothing by the way in oral argument. That is not a good sign either. He's not afraid of talking if he thinks there is a point to be made that serves the cause of his wing of the Court.

Breyer did question the attorney for the Commission, Seth Waxman.  Breyer told him that he didn't think that his arguments were helping his case, but that he was free to continue arguing that way.

[jimrtex]

Can the Supreme Court rule in such a way so that this only applies to AZ and not CA?

I don't think so.
The other situation would be possible I guess?

The AZ independent commission has 4 state legislators members, while the CA independent commission: 0.

This is not true.

[jimrtex]

When will the General Assembly draw the gerrymander?

[jimrtex]

Most democracies have independent commissions that are put in place by the legislature without any citizen ballot initiatives. So this issue ought, in principle, to be irrelevant. I know, of course, that the reality is different.

The idea that "the Legislature" should be interpreted to include a citizen referendum seems very dubious. In the original constitution, prior to the 17th amendment, the House is described with the following text:

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while the Senate is described thus:

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It seems pretty clear that the authors distinguished "the People" from "the Legislature". That's why the 17th amendment was needed.

In the early 20th Century, the SCOTUS made a distinction between "Legislature" meaning the body; and "Legislature" meaning the legislative process.  In particular, they ruled against popular election of senators, and popular ratification of constitutional amendments.  These were not powers delegated to the States, which might then delegate them to the People.  And they were not powers retained by the States, because there would be no senators or constitutional amendment without the US Constitution.

But they did make a distinction with regard to legislation regarding time, place, and manner regulation of Congress; and manner regulation for the appointment of presidential electors.  The legislative process, the manner in which they make laws, is entirely up to each individual State.  So "passing a law", might include passage in both houses, and certain timing requirements, and might be subject to a gubernatorial or popular veto (referendum).  The two particular cases where they upheld a veto of a redistricting plan were Hildebrant (popular veto) and Smiley (gubernatorial veto).  But those two instances were auxiliary to the Legislature legislating.

The lawyers for the Arizona redistricting commission are arguing that "legislative power" could mean whatever the State (constitution) says it is.  But when Seth Waxman was making an argument that Hildebrant and Smiley were precedental, Justice Breyer told him he didn't think it was helping his case, but that he was free to continue to argue it.

This suggests that Breyer would be willing to flap his wings and not rely on precedent but go off interpreting the Constitution do novo.  But that will lose Justice Kennedy.

[jimrtex]

How many seats would the democrats get with this map?
Would the majority leader be in trouble?

7 would be the max meaning they would lose 7 seats. Factor in a loss of 2 seats in AZ, and you have a net loss of 5. If we give the two swing districts to the Republicans, that is still a gain of 5 districts in CA for the Democrats.

Any legislation passed by the General Assembly is subject to a referendum, unless it gets a 2/3 majority in both houses.   Democrats won't have a 2/3 majority in either house after the 3 senate vacancies are filled.  And this assumes that Jerrymander Brown wants his legacy to be presiding over two gerrymanders 40 years apart, and doesn't veto the bill.

And I doubt that the General Assembly will swing into action without a court ruling specific to California.

Once the referendum petition is successful, the legislation is frozen.  Under the California Constitution, referendum are held at the next general election, and the legislature has conveniently redefined "general election" to mean election in November of even-numbered years.

The last time this happened, back in 1981, when Jerrymander Brown was the governor, Chief Justice Liberal Rose Bird, ruled that the legislative and congressional districts drawn by the legisilature, and were theoretically suspended because they were subject to referendum should be used for the 1982 elections.   But that  was because the 1970  congressional district maps had the wrong number of districts, and according to Liberal Rose Bird the 1970 legislative maps did not comply with OMOV.

But the California Supreme Court won't rule that the congressional maps drawn by the commission don't comply with OMOV.   And they certainly won't let the legislature draw new maps for the General Assembly.  So the November 2016 elections will be conducted on the current lines.

In the 1982 elections, the Democratic Jerrymander plans were defeated by a 63-65% majority.  But the General Assembly was elected on the lines that the voters rejected.  They came into office late in 1982, and re-enacted the same legislation that the voters had just rejected.  They also inserted an urgency clause (because they had obtained a 2/3 majority based on the voter-rejected districts), which prevents a referendum.   Jerrymander Brown who continued in office until 1983 signed the bill.

But the 2017 General Assembly, elected on the current district lines may not have a 2/3 Democratic supermajority.  And besides there will be another redistricting amendment approved in November 2016.  It has the following provisions:

(1) No urgency clause for redistricting measures.

(2) The redistricting commission will recommend a congressional map to the General Assembly, in 2017, and every subsequent year ending in -01.

(3) The General Assembly may adopt the recommended plan or draw their own.  If they draw their own, the two plans will be subject to a mandatory preferendum.  The General Assembly will meet in regional locations throughout the State (at least one for each five districts that their plan differs from that recommended by the commission).

[jimrtex]

Why can the people not create redistricting commissions but they have the right to enact voter ID laws? Isn't that also included in the "times, places and manner" of holding elections?

"times, places, and manner" applies to federal elections.   Or do you think that it was a generous grant by the Great White Fathers in Philadelphia to even let the States have their own government?

The People can create redistricting commissions for their State.  They can enact Voter ID laws for their own elections.   The SCOTUS has strongly indicated that States may require additional documentation of citizenship in order to register to vote in State elections.

[jimrtex]

Why can the people not create redistricting commissions but they have the right to enact voter ID laws? Isn't that also included in the "times, places and manner" of holding elections?

"times, places, and manner" applies to federal elections.   Or do you think that it was a generous grant by the Great White Fathers in Philadelphia to even let the States have their own government?

The People can create redistricting commissions for their State.  They can enact Voter ID laws for their own elections.   The SCOTUS has strongly indicated that States may require additional documentation of citizenship in order to register to vote in State elections.

So voter ID laws don't apply to Congressional and Presidential elections? What?

SCOTUS has indicated that States may require documentation of citizenship for registration for state and local elections, beyond what is required on the federal registration form, and two States do so.  These are quite similar to Voter ID laws, that simply require a voter to document that they are who they say they are.  And Congress has not legislated with respect to voter identification.

[jimrtex]

Based on what I've read, leadership in the California Legislature does appear ready to reopen redistricting if SCOTUS rules that way. You have to look at this from the standpoint of California Democrats. In the Legislature, they are term limited and they almost certainly want to have as many seats open for aspiring legislators to move up. I would also expect Nancy Pelosi to be spending some time in Sacramento this summer. She wants to be Speaker again and a Democratic gerrymander of California would put her that much closer to her goal. There's little doubt she'll have considerable sway in creating any new map.

Legislation by the General Assembly is subject to a referendum.  Once the referendum petition is lodge, the act is suspended.  The General Assembly could attach an urgency clause, which would make the plan immune from a referendum, except that Democrats don't have a 2/3 majority in either house.

In the past, when this has happened, the California Supreme Court has let the enacted plan go into effect on a provisional basis, but that is because the previous plan had the wrong number of congressional districts.  But the current plan has the correct number and was based on the 2000 Census.

In the 1980s redistricting, Chief Justice Liberal Rose Bird also ordered that the legislative gerrymander for the house and senate go into effect, claiming that population changes since the 1970s made the 1970 plan no longer comply with OMOV.   The voters rejected the Jerrymanders by 63-65% margins.  But the incoming legislators elected on the Jerrymandered boundaries, re-enacted the plans and added urgency clauses.   Jerrymander Brown I signed the bills before he left office.

So legislature passes congressional Jerrymander.  Referendum is petitioned for.  The California Consitution requires referendums to be held at the next general election.  The California legislature has recently defined a "general election" to be the election in November of even-numbered years.

Since the Jerrymander referendum will be on the ballot in November 2016, the 2016 congressional districts will be held on the current boundaries.

In addition, there will be an initiative to correct the current redistricting provisions with regard to congressional redistricting.  The redistricting commission will propose a map to the legislature.  The legislature may adopt the commission's map, or propose an alternative.  In that case, there will be a mandatory referendum with the two plans on the ballot.

[jimrtex]

However, I am not sure kraxen's map is legal under the VRA. Creating an ersatz Hispanic CD like that, losing Hispanics on the perimeters in various locations to take in the core in disparate locations, might be viewed as racial gerrymandering ala that NC map, where SCOTUS axed that Watt CD back when. It may have taken erosity a bit too far. The point being that if an Hispanic (black) CD can be created that is compact, is it legal to make one hideously erose, going all over the state? Interesting question. Maybe Muon2 has a thought on it. It's one thing to create a majority minority CD that can only be done by going all over the place (not mandated of course, but legal); quite another when it is unnecessary to do so, to create the requisite majority minority CD.

I think the current VA case touches on that very issue. The lower court, citing other cases, said that VA-3 was drawn with race as the primary factor. The unusual shape including the hopscotch down the river led to that conclusion, and it was recognized that there were other districts that could provide an opportunity for the minority to elect a candidate of choice without the gerrymander.

When VA-3 was first drawn, it had a 60% BVAP.  The court rejected that map, which included fingers into Petersburg, and a swath of rural counties north of the James River (they were not majority black, but were apparently blacker than any areas adjacent to the intricately drawn boundaries in the Richmond and Hampton Roads areas.  If you started with a district consisting of the James River, and started adding precincts based on their BVAP, you might get such a result.  It is sort of like trying to draw the two majority BVAP senate districts in Cuyahoga County, and you end up choosing between Parma and Lakewood based on their blackness.

The court also said that they didn't believe the first prong of the Gingles test could be met, even though a 60% BVAP district was obviously possible.   The revised plan removed Portsmouth from the district, and dropped some of the other appendages.  But if you were identifying a compact area with a majority BVAP, you would hardly exclude Portsmouth.

Since Virginia has not been gaining representatives, and the population growth has been highest in NoVA, it has become even less possible to draw a district that meets the first prong, since the districts must be larger - and the black population has likely become somewhat more dispersed.

[jimrtex]

No doubt we have evolved in thoughts about mapmaking. To apply our current metrics to AZ would require a bit of work to identify county subdivisions and determine how to treat reservations and connections between counties and subdivisions.

90% of Arizona's population is urban (in urbanized areas and urban clusters).   Would a better approach in Arizona be to ignore counties and focus on the highway connections between urban areas?   The connection between Pima and Maricopa is particularly tenuous.

Perhaps the entire population of a census tract (or tribal census tract) could be associated with the largest urban area in the tract.  The Phoenix area could use the cities.

[jimrtex]

I gave you the end of free microchops and start of penalties for UCC underpacks, so I think have been eminently reasonable when I comes to good ideas that have demonstrable value. However on this one there is public value to disallow any districts where you can't drive from one part of the district to another without passing through other districts. The only exception I consider is when a county is disconnected internally due to water, deserts or mountains and the plan keeps the county whole. As to the public acceptance I will simply cite the Washington state statute on redistricting (RCW 44.05.090), "Areas separated by geographical boundaries or artificial barriers that prevent transportation within a district should not be deemed contiguous." That is very good public policy IMO and has been recommended at many panels I have attended as a strong tool to fight gerrymandering.

What is an example of either a geographical boundary or artificial barrier that prevents transportation within a district?

[jimrtex]

I gave you the end of free microchops and start of penalties for UCC underpacks, so I think have been eminently reasonable when I comes to good ideas that have demonstrable value. However on this one there is public value to disallow any districts where you can't drive from one part of the district to another without passing through other districts. The only exception I consider is when a county is disconnected internally due to water, deserts or mountains and the plan keeps the county whole. As to the public acceptance I will simply cite the Washington state statute on redistricting (RCW 44.05.090), "Areas separated by geographical boundaries or artificial barriers that prevent transportation within a district should not be deemed contiguous." That is very good public policy IMO and has been recommended at many panels I have attended as a strong tool to fight gerrymandering.

What is an example of either a geographical boundary or artificial barrier that prevents transportation within a district?

In WA it is primarily the Cascades where major highways are needed to justify a link, and Puget Sound where only ferries and bridges count as connections. In principle it can apply to any other part of geography that interrupts transportation.

The Cascades and Puget Sound are not artificial barriers.

[jimrtex]

I gave you the end of free microchops and start of penalties for UCC underpacks, so I think have been eminently reasonable when I comes to good ideas that have demonstrable value. However on this one there is public value to disallow any districts where you can't drive from one part of the district to another without passing through other districts. The only exception I consider is when a county is disconnected internally due to water, deserts or mountains and the plan keeps the county whole. As to the public acceptance I will simply cite the Washington state statute on redistricting (RCW 44.05.090), "Areas separated by geographical boundaries or artificial barriers that prevent transportation within a district should not be deemed contiguous." That is very good public policy IMO and has been recommended at many panels I have attended as a strong tool to fight gerrymandering.

What is an example of either a geographical boundary or artificial barrier that prevents transportation within a district?

In WA it is primarily the Cascades where major highways are needed to justify a link, and Puget Sound where only ferries and bridges count as connections. In principle it can apply to any other part of geography that interrupts transportation.

The Cascades and Puget Sound are not artificial barriers.

The two I listed are geographical. I believe that an example of an artificial barrier would be a road along a boundary between two areas without a road that separately connects into each of those areas.

Mountain ranges and bodies of water are not boundaries.   It appears that Washington did a poor job of expressing the concept,

[jimrtex]

You  have a double chop of Paradise. One precinct from your NV-4 is entirely within Paradise, and two or three more have most of their population in Paradise. I could have done a double chop of Paradise too, but decided it better to do the second chop in another jurisdiction (not sure of the name of the place directly east of Las Vegas).

Thanks for the catch. I thought I had all overlapping precincts. If I place that one in CD 1 the population is still OK. If I place the overlapping precincts (or some fraction of them) in CD 1 then CD 4 needs to pick up the shore of Lake Mead and Moapa Valley to rebalance the population with some loss of erosity (but not that much since it's largely open desert). That gets the Clark muni chop back to 1.

Well, another difficulty in NV (and, really, in much of the South and West) is that precincts don't line up with town lines.  Like, okay, you have to split Paradise because of all the precincts it shares with Enterprise and Winchester. 

I would think that there could, instead, be some sort of effort to fudge a standardized boundary that counts as non-chopped, and which is as close to actual as you can get.  (And, perhaps, that effort might want to make sure to distinguish between what are actual incorporated towns, and what are just CDPs.)

Cutting the voting districts to conform to town boundaries would be a good thing to do in reality... but we can't do so here in DRA.  You need to dig into the weeds of GIS to get it done.

...

As for those NV counties where the center of population and county seat are disconnected... possibly we could cut them and make fictitious counties which are internally contiguous, and draw based on that?

You could split the precincts on the city boundaries.

[jimrtex]

You  have a double chop of Paradise. One precinct from your NV-4 is entirely within Paradise, and two or three more have most of their population in Paradise. I could have done a double chop of Paradise too, but decided it better to do the second chop in another jurisdiction (not sure of the name of the place directly east of Las Vegas).

Thanks for the catch. I thought I had all overlapping precincts. If I place that one in CD 1 the population is still OK. If I place the overlapping precincts (or some fraction of them) in CD 1 then CD 4 needs to pick up the shore of Lake Mead and Moapa Valley to rebalance the population with some loss of erosity (but not that much since it's largely open desert). That gets the Clark muni chop back to 1.

Well, another difficulty in NV (and, really, in much of the South and West) is that precincts don't line up with town lines.  Like, okay, you have to split Paradise because of all the precincts it shares with Enterprise and Winchester. 

I would think that there could, instead, be some sort of effort to fudge a standardized boundary that counts as non-chopped, and which is as close to actual as you can get.  (And, perhaps, that effort might want to make sure to distinguish between what are actual incorporated towns, and what are just CDPs.)

Cutting the voting districts to conform to town boundaries would be a good thing to do in reality... but we can't do so here in DRA.  You need to dig into the weeds of GIS to get it done.

...

As for those NV counties where the center of population and county seat are disconnected... possibly we could cut them and make fictitious counties which are internally contiguous, and draw based on that?

You could split the precincts on the city boundaries.

We are constrained to DRA for mapping software, and the 2010 data is given by VTD. If you know of another free web product that has finer granularity, I'm sure we'll be interested.

How many precincts are split?

You can export a precinct based CSV file from DRA.  It would be relatively simple to produced adjusted populations.