So redistricting reform has always been a hugely important issue to me. I introduced my first bill to combat partisan gerrymandering in 2004. When offered the opportunity to do a TED Talk, I chose gerrymandering as my topic. And when the US Supreme Court heard Gill v. Whitford, the gerrymandering case, I arrived at the Court at 2:00 AM to watch the argument. I think gerrymandering is an existential threat to democracy (not the only one, but that’s another topic).
In addition to my own bill, I was a co-sponsor of SB 22, Senator Lisa Boscola’s bill. I was happy to support whatever worked. However, a couple of weeks ago SB 22 was subjected to what we call a “gut and replace” amendment introduced by my friend, and medical marijuana partner, Senator Mike Folmer. It completely changed everything in a way I found very troubling.
After expressing my concerns about the bill to advocates, I reluctantly voted YES for the amended bill in the State Government Committee. I was assured that we needed to vote in the affirmative to “move the process along” and that changes for the better would come later in that process. However, there is a vote Wednesday in the Appropriations Committee and then a vote next week on the floor, and things have not gotten better. So, as things stand now, I will be opposing SB 22. I want to explain why, and what changes I would need to feel comfortable supporting it.
This bill eliminates the role of the Supreme Court in being the tie-breaking vote on the redistricting commission. Instead, it sets up a different commission, with each legislative leader getting two appointments, for a total of eight, (four from each party), and three appointments by the Governor.
The legislative appointments must be confirmed by a two-thirds vote of the chamber that nominated them, and the Governor’s appointments must be confirmed by two-thirds of both houses. Then a bi-partisan super-majority of the commission must agree on a map. This seemed very unworkable and would allow either party to cause the process to fail if they didn’t like the product. If the commission was unable to agree on a map, the matter goes, not to the Supreme Court as current law dictates, but back to the legislature where two-thirds of both houses can adopt a map.
Knowing how Machiavellian political parties, including our Republican friends are about making sure they win elections, I was wondering why they were pushing this bill. What was in it for them? And I think I’ve figured it out. The bill is deliberately designed for the commission to fail.
Here’s the rub. This structure gives a huge advantage to the majority party, which, is in this case, the Republicans. If this scenario unfolded today, the Republicans would only need to persuade, convince, buy, whatever, a few Democrats to adopt their map in toto.
Republicans wouldn’t need any Democrats in the Senate where they already have two-thirds of the body. And they would need about a dozen in the house. But they control the calendar, meaning they could trade the movement of bills for votes. They could tweak the map and promise that individual Democrats in tough districts who voted their way that they would be given safer districts (at the expense of less compliant Democrats of course). The majority also controls many grants which previous legislative leaders used to use quite effectively to buy Democratic votes for their agenda. They also control appointments to boards which could be traded for votes.
In other words, it wouldn’t be difficult for the Republicans to buy the votes they need. Just look at 2011, where a bunch of Democrats were persuaded to vote for a congressional map that was the most pro-Republican gerrymandered map in the nation. And the state legislative map was aggressively gerrymandered in the Republican’s favor, but even then the Democrats on the state redistricting commission were not unanimous in opposing it.
The fact is that the majority party can almost certainly work their will to get maps to their liking, whereas the minority will have no corresponding ability to do the same. Now we don’t know what will happen in the 2018 and 2020 elections. But it’s very likely the Republicans will be in control during the next redistricting. So, turning the final decision over to the legislature, even with a super-majority requirement is unacceptable.
What is the solution? I think that giving the Supreme Court, rather than the legislature the final say is the only solution. The problem is, I doubt the Republicans will go along with that. But ask yourself, why are the Republicans, who only want one thing, which is to retain control of redistricting, so interested in moving Folmer’s legislation?
As I mentioned, I have spent a good bit of my career fighting for redistricting reform. But to paraphrase Led Zeppelin, “all that glitters is not gold.” And I don't think we're going to do this twice. We must get it right the first time. So, I will oppose the bill as written, but I will fight hard to pass a curative Amendment, or alternatively, work for a commission structure more likely to actually produce a fair map.