New Jersey should change both the makeup of the commission that redraws legislative districts every decade and the criteria for how that body configures districts, recommends a new report released today. It also calls for expanding public involvement and increasing the transparency of the redistricting process.
The changes suggested by “Improving New Jersey’s Legislative Apportionment Process” — the work of a half-dozen academics and lawyers — would require amending the state constitution, which includes redistricting rules. The report is their answer to a proposal to change the process that Democratic leaders tried to rush through at the end of last year, only to run into opposition from grassroots and good-government groups.
This report does not include some of the most progressive reforms that have been adopted by some states, such as an independent commission or requiring that a new district map must be backed by a bipartisan supermajority of commission members. Still, it would make significant changes to the process of redrawing district boundaries to reflect population shifts documented by the decennial census.
“We have proposed a bold, yet common-sense approach to improving the current system,” said Patrick Murray, director of the Monmouth University Polling Institute and one of the authors of the report. “It increases public participation in the process while also addressing concerns raised by legislators … last year. Under this plan, the legislative map’s outcome will not hinge on the priorities of a single, independent member.”
Adding seats to the commission
A key reform would be to increase the makeup of the commission from 10 members to 13 by adding three independents. Currently, the chairs of the state Democratic and Republican parties each appoint five members to the Legislative Apportionment Commission. If a majority of members cannot agree on a map — and that has been the case in the past four redistricting efforts — then the chief justice of the state Supreme Court appoints an independent member who breaks the tie.
The report suggests having the chief justice appoint three independent members to the commission from the start. That way, no individual would have the power to draw districts based on the criterion he considers most important. These added members would have to be truly independent or limited to no more than two from either major party. And it would take eight votes to adopt a map, either bipartisan support or one party’s votes plus all three independents.
“Expanding the number of independent members and setting forth qualifications for the appointment of those members will lessen the likelihood that idiosyncratic priorities of one member will be able to dominate,” the report states. “Furthermore, having multiple ‘referees’ who can confer on matters will help ensure that agreed‐upon rules are applied consistently and will result in a more deliberative process rather than have a dynamic where the two parties vie to meet one individual’s personal preferences.”
The report also suggests establishing criteria for the three independent members, including relevant knowledge and experience and not holding any public office. Currently, the constitution does not set any qualifications for commission membership.
Likewise, the constitution sets few specific conditions for the drawing of the boundaries, beyond having relatively equal populations and maintaining in nearly all cases municipal borders and preserving county borders.
Changing the constitution
The report recommends adding criteria and priorities used in drawing new districts. to the constitution, as well as codifying current criteria not written into the constitution, such as racial representation guaranteed by the Voting Rights Act. Preserving communities of interest — groups of people bound by common interests or characteristics — and partisan fairness should also be given a high priority, along with maintaining municipal boundaries. The report also suggests keeping districts compact and making them competitive between the parties as secondary priorities.
Written criteria and a reconstituted commission should create a fairer redistricting process in New Jersey, the report’s authors said.
“Fair redistricting will not be achieved through indiscriminate use of formulas or algorithms, but will require a broad-based approach that includes broad and effective public input and the ability to reconcile often competing redistricting principles,” said Ronald Chen, a law professor at Rutgers University Law School, as well as a former public advocate and the current chair of the task force Gov. Phil Murphy created to investigate the state Economic Development Authority’s awarding of tax incentives.
A final section of the report calls for greater transparency and public input into the process. Currently, the constitution requires neither. The report suggests making data available to the public as soon as possible, so people can respond to commission members and submit their own maps, particularly as they relate to communities of interest. All maps that have the preliminary support of at least three commission members should be submitted to the public prior to the adoption of any plan and be subject to public hearings so they can be amended before a final vote if necessary.
Hearing from the public
Because an extended public comment period would bump up against the 2021 primary election, the report recommends New Jersey do the same as Virginia — the only other state to hold statewide elections in an odd-numbered year — and move its primary election in redistricting years from June to August.
“This proposal fuses national best practices with New Jersey values,” said Yurij Rudensky, redistricting counsel for the Brennan Center for Justice at New York University School of Law. “The much-needed renovation would address the known flaws of the current process while promoting fairness and establishing a system that is community driven and accountable to voters.”
The report’s authors said their work took on greater importance after last month’s U.S. Supreme Court decision that left questions of partisan gerrymandering up to the states. They initially formed a working group to recommend reforms after last year’s failed attempt by Democratic leaders to change the redistricting process.
Democrats proposed a scheme that would have used election results to establish the benchmark for drawing up districts. Their standard would likely have set a Democratic majority of 51 percent as the midpoint for drawing districts considered favorable to each party, rather than 50 percent, putting one party at a disadvantage. Democratic leaders tried to ram the measure through the Legislature between Thanksgiving and Christmas, but acceded to strong public opposition.
One of the party’s goals in pushing its proposal was to prevent another tiebreaker from drawing a map that would split district representation equally between parties. The current congressional district map, drawn in 2011, led to Democrats’ losing one seat when the state’s delegation was cut from 13 to 12 and split districts 6-6 until 2016, when the Democrats flipped one seat. With four more flips last year, Democrats now hold 11 of the state’s 12 seats in the next Congress.
The report contends that its recommendations would prevent that from happening.
Most of the authors of the report had testified on the Democrats’ proposal at the end of last year. While they considered suggesting New Jersey adopt other models used across the country, such as creating an independent commission not chosen by party leaders and without any legislative members, they ultimately rejected them for several reasons.
“We are looking to make the system work better in 2021,” Rudensky said. “Given the amount of time it takes to amend the constitution, we didn’t feel a complete overhaul was possible.”
He also noted that the most progressive reforms from other state resulted from initiatives proposed by the public. New Jersey does not allow people to propose laws through initiative and referendum, so the authors felt they “have to advance something that lawmakers would find palatable.” Conversations Rudensky and others had late last year indicated legislators would support greater transparency and public input in the process, as well as changing the makeup of the commission. But the authors did not suggest bipartisan support for a map, which some states require, because “there was not a lot of interest among either party for reaching across the aisle,” Rudensky added.
Any changes to the current process would have to be proposed by and voted on by lawmakers and either signed by Murphy or approved by legislators two years in a row. Rudensky said the authors have not approached potential sponsors of suggested reforms yet because of the recently completed budget battle and current legislative recess.
So far, Democratic leaders are noncommittal.
A spokeswoman for Assembly Speaker Craig Coughlin (D-Middlesex) said he had not yet seen the report.
“We just received the report but have not yet given it a complete review,” said Richard McGrath, a spokesman for Senate President Steve Sweeney (D-Gloucester). “There have been a number of ideas on this issue and this is one more voice in the discussion.”