The decision by New Jersey’s Democratic legislative leaders to cancel a vote today on their controversial proposal to change the redrawing of districts gives lawmakers the opportunity to craft a new reform plan that embodies many of the provisions sought by grassroots activists and good-government advocates.
But those who have been fighting the Democratic leaders’ proposal may not want to hold their breath for a new constitutional amendment that encompasses the most progressive aspects of what other states have done — for instance, a citizens’ commission or a requirement that any map receive bipartisan support. In states like California and Colorado that have adopted redistricting rules held up as models, the proposals were put on the ballot by citizens, not by lawmakers.
“It would be a significant improvement to have the redistricting commission’s members be picked without the involvement of politicians,” said Sam Wang, a professor at the Princeton Neuroscience Institute and member of the Princeton Gerrymandering Project. “I don’t think the legislature would ever approve such an independent commission, though.”
New Jersey lawmakers debated and rejected a push to allow for initiative-and-referendum — the process by which citizens could put measures on the ballot without legislative approval and vote on them — in the 1980s and 1990s. But that’s how the most significant reforms passed in other states recently.
“Recent years have seen a significant growth in efforts to protect the redistricting process from abuse … Citizen-driven ballot initiatives sparked redistricting reform in Arizona in 2000 and in California in 2008 and 2010,” according to an article on reforms posted by the Brennan Center for Justice.
Groundswell against the measure
So far, the activists, academics and citizens who testified against the proposals (SCR-43, SCR-152, and ACR-205) during simultaneous public hearings in Trenton last Thursday are satisfied with the announcement by Sen. President Steve Sweeney (D-Gloucester) and Assembly Speaker Craig Coughlin (D-Middlesex) that they would not post the measures. Work on a better reform can come next.
“There is tremendous power when voters are engaged and informed. Senate and Assembly leadership attempted to silently move a drastic proposal many understood to be detrimental to New Jersey’s democracy,” said Analilia Mejia, executive director of New Jersey Working Families Alliance, a liberal group helping organize opposition to the proposal. “Legislative leadership’s withdrawal at the face of an informed, engaged, and active public proves that government works best with the full engagement and knowledge of the people. When we fight, we win!”
In a statement issued Saturday night, Coughlin said he wants to have the opportunity to work into new legislation some of the suggestions — including from several individuals and groups with expertise in redistricting — made during the hearings.
“I want to integrate some of the valuable input received to help create a better measure and improve the redistricting process overall,” he said.
Sweeney issued a statement at roughly the same time, saying he recognizes “the importance of improving the legislative redistricting process” but agreed that the public’s opinions should be considered.
Sweeney: ‘We will maintain an open mind…’
“This will give us the time and opportunity to review the input we have received from the public, our legislative colleagues and others to determine if any of these ideas would improve the proposal,” he stated. “We will maintain an open mind as we continue to work on a proposal that best serves the electoral process and the values of our democracy.”
The leaders had fast-tracked the measures — the Senate versions were heard and amended the Monday after Thanksgiving, while the Assembly resolution did not even get a committee vote but was sent directly to the floor of the house — to get them approved by both houses of the state Legislature today, the last voting session of the year. A simple majority of both houses needs to release the measures two years in a row to put them on the 2019 ballot for a vote by the public.
Following the Senate public hearing last Thursday, Democrats were saying privately that they weren’t sure they had enough votes to pass the measure. At least three senators had said publicly they would not support it and others were believed to be wavering.
This is partly due to the continuing Democratic intraparty fight between Sweeney and his allies and Gov. Phil Murphy, who has some lawmakers loyal to him. Murphy opposed the proposal, which would have taken away some of the power he is expected to have over the process in 2021; the current system gives five appointments to the Democratic party chairman, chosen by Murphy, and five to the GOP chairman.
No Republican votes
“I commend Legislative leadership for pulling the redistricting proposal. I’m grateful they heard the voices of so many within New Jersey and around the country who saw that the proposal would have made our Legislature less representative and less accountable,” Murphy said in a statement. “I thank the many residents and grassroots organizations, on both sides of the aisle, who stood up to make their voices heard and whose activism resulted in the decision to pull this measure.”
The proposal would not have gotten any Republican votes in either house, given it included a formula that likely would have allowed Democrats to maintain their current majorities or even increase them.
“This shouldn’t be a partisan issue,” said Senate Minority Leader Tom Kean (R-Union). “Gerrymandering is wrong. We will remain vigilant, and fight back against any redistricting proposal that betrays democracy. I hope that this time, the sponsors will work with nonpartisan election experts and legislators on both sides of the aisle, so we can craft a redistricting proposal that we can all be proud of. The people we have the privilege of serving deserve no less than an amendment that ensures fair and equal representation for all.”
Legislators could still get a new question on the ballot next November, but they would need the votes of three-fifths of both the Senate and Assembly to do so. That would mean crafting a proposal that majorities of both houses would think gave their party a good chance of success in the redrawing of the lines following the 2010 Census. Most political observers think that’s not likely to happen.
Doing nothing, and maintaining the current system, would not be such a terrible thing, some observers say.
Redistricting process ‘not that bad to begin with’
“I think that New Jersey’s redistricting process is not that bad to begin with,” Wang said, “So doing nothing is very much an option.”
Currently, when the 10 partisan commission members cannot agree on a map of districts, the state Supreme Court justice appoints an 11th, nonpartisan member who breaks the tie or comes up with his own plan that one side or the other joins to approve.
This is one of the main problems with the current system, according to Brennan Center officials. They recommend three major changes to the process here, starting with minimizing the impact of that 11th member, who now holds all the power.
One of the Democratic Party’s goals in pushing its now defunct reform proposal is to prevent another tie-breaker 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 state’s 12 seats in the next Congress.
The way some progressive states have tackled redistricting is by requiring that any map approved must receive the votes of at least one member of the minority party and at least one independent commission member.
No protection for ‘communities of color’
Wang has a number of other suggestions for how New Jersey could do better.
He said it’s OK to keep the “partisan balance test” that is in the legislative proposal. However, the measure should also add a provision “prohibiting the drawing of a statewide plan that favors one party over the other.” And it should eliminate the “competitiveness” language, as “competitiveness tends to arise naturally when other criteria are dealt with honestly” and the formula in the proposal that defines this “is a mess anyway,” Wang added.
The now sidelined reform proposal would use election results to establish the benchmark for drawing up districts. Using the results of national and statewide elections, which tend to bring more voters out to the polls than typical legislative years, the new standard would likely set a Democratic majority of 51 percent as the midpoint for drawing districts considered favorable to each party, rather than 50 percent. That means 10 so-called competitive districts that the map would be required to produce would have Democratic majorities of between 51 percent and 61 percent.
Wang suggests that the state put language into its legislation that would essentially make Section 2 of the Voting Rights Act, which prevents actions that would deny or limit the votes of people of any race, color or language minority status, a state right. The legislative proposal states that any map could not violate the Voting Rights Act, but that would be meaningless if Section 2 is struck down by the U.S. Supreme Court in the future, as Wang says it might be.
The Brennan Center, in its testimony last week, said the proposal does not protect the integrity of “communities of color,” although language in the measure does address communities of interest, which includes social and cultural interests. But by not specifically addressing race and ethnicity, the change could make it harder for African-American and Asian communities to elect representatives that reflect their interests.
Finally, Wang calls for even greater transparency and more public hearings than the three required by the canceled proposal.
“If deliberations have to be public, it’s much harder to commit an offense against a party or community,” Wang said. “So mandating public hearings and making commissioners document their reasons for their choices would be very helpful.”