New Jersey Democrats are going ahead with two public hearings tomorrow on a measure to change the way the state draws its legislative district boundaries, a proposal that to date no independent group — and even some that typically back Democrats — considers better or fairer than the current system.
Hearings are required before both houses of the Legislature can vote on the controversial proposal, embodied in several concurrent resolutions, to amend the reapportionment process written into the state Constitution. The changes purportedly are meant to increase public input and transparency in the process that occurs once a decade and “fair representation.” But the many opponents of the revisions say the Democrats’ real goal is to cement, or increase, the party’s dominance in the Legislature.
“This has the potential to undermine our voting rights … The result could favor one party over the other,” said Jeanne LoCicero, legal director of the ACLU of New Jersey, during a Tuesday night Facebook Live chat. She said that while the state’s current reapportionment system has flaws, “this would make it even worse.” The goal should be to “make sure New Jersey voting districts are fair and equal and the proposed way to calculate our districts would not do that.”
The effort seems to be moving in the opposite direction of measures several other states have taken recently. Last month, for instance, Colorado and Michigan voters passed measures to turn the redistricting process over to a citizens’ commission in each state and to forbid partisan bias in map drawing. Utah’s next maps for congressional and state legislative districts will be drawn by a bipartisan commission and must get the support of at least one member of the minority party.
Only Missouri voters approved rules for drawing a map that would set up a standard similar to the one in New Jersey’s constitutional amendment, requiring that a certain number of districts be considered competitive while others be drawn to allow each party to win seats.
An ‘ill-conceived’ effort
Yurij Rudensky, counsel with the Democracy Program at the Brennan Center for Justice based in New York, called the proposed change in New Jersey “ill-conceived” and said that while it has some good provisions, it on the whole takes “one step forward and one step backward” and so the center opposes it.
“New Jersey is a very important state,” he said. “We are looking to make sure that whatever is done is just that one step forward.”
Currently, the state Constitution specifies that the chairman of each major party chooses five members of the New Jersey Legislative Apportionment Commission that meets once every 10 years. It’s up to the commission to redraw legislative district boundaries to reflect population shifts based on the results of the decennial U.S. census. Each district must contain roughly the same number of people. What winds up happening is that each party creates a map that favors its members, the commission deadlocks 5-5 on each of the proposed maps; then, an 11th member, appointed by the state Supreme Court justice, sides with one or the other party member groups.
The proposal up for consideration would increase the commission’s membership to 13 and give legislative leaders of both parties, including co-sponsor and Sen. President Steve Sweeney (D-Gloucester), the ability to appoint eight commission members (two appointments each for the senate president, assembly speaker, senate minority leader and assembly minority leader). Two members would have to be public and four would have to be lawmakers. It also would, for the first time, set requirements for drawing districts based on recent statewide election results, with half of districts favoring Democrats and half favoring Republicans. Ten of 40 districts would have to be considered roughly competitive for either party.
Here is our map of the current districts.
Opponents and good-government groups see problems with putting so many legislators on the commission, saying they will have a vested interest in trying to preserve their own seats. But their biggest complaint is with the standard of election results that would be the benchmark for drawing districts based on voter registration. That would likely set a Democratic majority of 56 percent as the midpoint for drawing districts considered favorable to each party, rather than 50 percent. That means the 10 so-called competitive districts would have Democratic majorities of between 51 percent and 61 percent.
Really, what’s fair?
It is also theoretically possible that all districts could be drawn with at least a bare Democratic majority and still meet the measure’s standard of “fair representation,” as long as there were an equal number with slightly more than 56 percent Democratic majorities and slightly less.
During the only legislative committee hearing held on the proposal so far, Sweeney suggested last month that skewing districts for the Democratic party is only fair given the Democrats’ large voter registration advantage in the state.
“Is it supposed to be a 50-50 state when there’s a million more” Democrats, he said.
Patrick Murray, director of the Monmouth University Polling Institute, said the Democratic Party’s goal is to prevent a tie-breaking 13th independent commission member from drawing a map that would seek to split district representation equally between the parties. The current congressional district map, drawn in 2011, led to Democrats’ losing one seat as the state’s delegation was cut from 13 to 12 and had the state’s districts split 6-6 until 2016, when the Democrats flipped one seat. With four more flips last month, Democrats will hold 11 of the 12 seats in the next Congress.
“It guarantees the Democrats a minimum of 25 seats,” said Murray. That’s how many the party now holds in the state Senate.
He complained that the proposal was largely engineered behind closed doors by legislative leaders of only one faction of the party and is being muscled through the Legislature late in the year.
“It’s the most undemocratic solution possible,” he said. “It’s bizarre. You have supporters of the bill being incredibly disingenuous about giving voters greater choice when they had no choice at all in the language of the bill.”
It’s on a very fast track
Democratic leaders have put this effort on the fast track since unveiling the proposal Thanksgiving week. They are pushing for votes on one or more of the measures — SCR-43, SCR-152 and ACR-205 — in the Senate and Assembly next Monday, the last day the houses are in session this year.
A resolution must pass both houses two years in a row to be placed on the ballot the following year. Democrats want to see it on the ballot in November 2019 in time to take effect for the 2021 redrawing of district lines. Next year, with state Assembly seats topping the ballot, would be their best chance to get voters to agree to rewrite the rules as turnout is expected to be low and predominantly made up of party faithful; in 2015, the last time the Assembly was the highest office up for a vote, fewer than 1.2 million people, or 22 percent of those registered, cast ballots.
The only legislative committee vote on the bill was in a Senate committee, on the Monday night after Thanksgiving after a five-hour hearing on marijuana legalization. Even then, it was approved along party lines only when including votes cast by Democrats who had left the hearing before the measure was amended, leading to questions of whether the vote was valid. In the Assembly, the measure was sent directly to the floor of the house, bypassing all committees.
Now a coalition of 130 diverse organizations is trying to prevent the measure from getting on the ballot. If unsuccessful, they say they will fight to defeat it next November. They contend the proposed change is a recipe for gerrymandering, which could lead to legal challenges to the district boundaries.
“The formula they want to constitutionalize does not require that an unfair plan be passed, but it permits it,” said Rudensky. “Some Democrats could use it to entrench their power. Also, some Republicans could use it to entrench their power.”
Questions about gerrymandering in other states
Thirteen states have had recent court rulings or are in the midst of court challenges arguing that their districts were gerrymandered. Severely gerrymandered maps approved by GOP legislatures in a number of states across the country have been cited as one reason why Republicans retained control of the House this decade.
One notable case involved Pennsylvania, where the state Supreme Court last January struck down the congressional district map as unconstitutional and, after lawmakers failed to agree to pass a new one, imposed a map drawn by a special court-appointed master. Often cited was a district shaped as “Goofy kicking Donald Duck” that wound through parts of five counties. The U.S. House split went from favoring Republicans 12-6 currently to a 9-9 split following the 2018 election.
North Carolina’s congressional district map was also ruled unconstitutional, although the state Supreme Court ruled there was not enough time to redraw districts in time for last month’s election, so it stood. While the state’s voters are roughly evenly split between the two major parties, Republicans hold 10 of the state’s 13 House seats due to the way lawmakers drew the boundaries after the last census and no seats flipped — although the 9th District where Republican Mark Harris is leading has not been called due to allegations of fraud.
Will Adler, computational research specialist with the Princeton Gerrymandering Project, said that the New Jersey proposal could easily be used to gerrymander districts in the state.
“Although the formula in the current proposal seems intended to limit partisan gerrymandering, it actually doesn’t prevent either party from committing a partisan gerrymander,” he said. “Even though it somewhat constrains what the commission can do, the proposal may actually make things worse by providing cover to partisan motives. Essentially, a partisan mapmaker could justify their map by saying it was required by the formula, or that it increases ‘competitiveness’ as defined by the bill.”
League of Women Voters leads the opposition
Using the parameters in the legislation, the project team was able to create a scenario that would split the 40 districts evenly between the two parties, thus benefiting Republicans who have been in the minority in both houses since 2004. A second scenario would give Democrats 28 districts — three more than the party currently holds in the Senate — and Republicans only 12. Team member Sam Wang, a Princeton University professor, said this was due to the bill’s “weird definition of competitiveness, and limits on partisanship that don’t entirely make sense given New Jersey’s demographics.”
The League of Women Voters of New Jersey is leading a coalition called Fair Districts New Jersey that is calling for reforms in redrawing both legislative and congressional districts; these would incorporate some of the provisions of the majority measure, including more public hearings. But the keystone of their effort, and what many think is the gold standard for fair redistricting, is putting it into the hands of a citizens’ commission.
A decade ago, California voters took the first step toward creating a redistricting commission made up entirely of citizens. The members — five Democrats, five Republicans and four who did not identify as either — were chosen from among 30,000 applicants. That body held dozens of public hearings across the state and drew new districts for the 2012 elections, getting agreement from commissioners of both parties and the non-affiliated. The result was a highly competitive map focused on communities of interest that led to turnover in both Congress and the state Assembly.
Last year, Harvard University’s Government Innovations Award Program chose the California Citizens Redistricting Commission as the winner of its Roy and Lila Ash Innovations Award for Public Engagement in Government. Accepting the award and discussing the commission process was one member of the commission, Stanley Forbes, who owns a bookstore in a small rural California town.
“The California model for redistricting … has proven that people can draw fair, transparent, non-partisan, and non-gerrymandered districts representing the people,” Forbes said during a presentation on the California process at Harvard.
“The California citizen redistricting process was largely successful in meeting the mandated goals of a nonpartisan and transparent process, with a level of incumbent influence that was considerably lower than in previous redistricting efforts,” wrote Ralph J. Sonenshein in a report on process for the League of Women Voters. “The final maps survived legal challenge, and the commission’s work was regarded positively by a majority of the voters. In 2012, the first test of the commission’s maps provided evidence that the new district lines caused significant turnover in elected offices.”
The nonpartisan option
A citizens’ commission is not the only preferred method to draw district lines. In Iowa, nonpartisan legislative staff perform the task with the goal of keeping district populations as uniform as possible, respecting municipal borders, making districts as compact and contiguous as possible and trying to nest state House districts within state Senate districts and those in turn within U.S. House boundaries.
Iowa’s districts do not have irregular shapes or wind through different parts of the state, carving communities into multiple districts in an attempt to dilute the influence of a particular demographic group.
Rudensky said New Jersey’s current process for redistricting “is not one of the most problematic” in the nation, although there is room for improvement.
For one thing, it has been praised because it delegates the authority to draw boundaries to a commission, rather than have the Legislature do the work itself.
But because the commission has split representation, and there is no requirement that at least some members of both parties vote for the final map, all the power over the drawing of districts rests with the tiebreaker.
“We recommend having a provision for some bipartisan support,” Rudensky said. “When it is done right, it does not leave anyone fully satisfied.”
Additionally, he said, the process should include clear criteria for drawing boundaries based on “communities of color or interest” that account for shared local concerns.
“New Jersey is not large geographically, but it is a complex state that is very diverse racially and ethnically,” he said. “There is so much more to creating districts than the ultimate partisan composition of the Legislature.”
The proposed change does require a map to preserve “communities of interest within the same district” and defines a community of interest as “a geographically contiguous population sharing common interests relevant to the legislative process such as trade areas, communication and transportation networks, media markets, or social, cultural or economic interests.” Still, that is the last requirement listed for the commission to consider in certifying a new map.
Two hearings at the same time
Legislative leaders have scheduled simultaneous hearings on the measures in two different committees on different floors of the State House Annex for Thursday. The Senate State Government, Wagering, Tourism and Historic Preservation Committee will hear testimony on the Senate version of the bill at 11 a.m. in Room 4 on the first floor, while the Assembly Judiciary Committee will hear from those commenting on the Assembly version in Room 11 on the fourth floor at the same time.