For nearly 200 years the U.S. Supreme Court was made up of men. Then came Sandra Day O’Connor.
Fifteen years ago, Arizona voters passed a ballot measure creating an independent, bipartisan commission to draw congressional districts. Over the next several years, 10 other states passed similar laws to prevent gerrymandering by state legislatures. But in 2012, Arizona Republicans sued, saying the independent commission was unconstitutional. On Monday, the Supreme Court ruled that Arizona’s commission was lawful. Supporters of the decision say it’s a victory for direct democracy. But critics say it doesn’t change current law and won’t address partisan gridlock. We discuss the Supreme Court decision and what it could mean for election reform efforts nationwide.
- Stuart Rothenberg Editor and publisher of the Rothenberg Political Report; columnist, Roll Call
- Richard Hasen Professor of law and political science at the University of California, Irvine; author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown"
- Jan Baran Head of the election law group at Wiley Rein LLP; former general counsel, Republican National Committee; author, "The Election Law Primer for Corporations."
- Colleen Mathis Chair, Arizona Independent Redistricting Commission (2010 - present)
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. On Monday, the Supreme Court ruled Arizona's use of an independent commission to draw congressional districts was constitutional. A handful of other states have bipartisan commissions to counter gerrymandering by legislatures. Here in the studio for a look at the high court's decision, what it could mean for political reform nationwide, Stuart Rosenberg of The Rosenberg Political Report and Roll Call and Jan Baran of Wiley Rein.
MS. DIANE REHMJoining us by phone from Irvine, California, Richard Hasen of the University of California School of Law. Do join us, 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or Twitter. And thank you all for being with us.
MR. STUART ROTHENBERGThank you, Diane.
MR. JAN BARANA pleasure.
MR. RICHARD HASENGood morning. -
REHMStu Rosenberg, give us some background on this decision. What was the case? Why did the court decide this way?
ROTHENBERGSure. So the heart of the case, Diane, is, as you said, the question was could Arizona voters establish an independent redistricting commission to redraw the states' districts. In this case, we're talking about congressional districts. Or did the establishment of the commission violate the U.S. Constitution, which says that the "times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature."
ROTHENBERGPretty clear language maybe. Not to some people, but maybe to others. And so this is -- putting in the context of the larger discussion, most states, over 40 states, I believe it's 43 states, allow the legislature to draw often their own lines, but also congressional districts. And there has been a call, increasingly, around the country for non-partisan groups, non-legislatures to draw lines, to create districts that are more competitive not less competitive, that are less polarized in terms of partisan and ideology to presumably result in a more compromising cooperative Congress.
REHMSo what happened was the Republican state legislature sued?
ROTHENBERGRight, right. The Republican legislators sued, challenging the constitutionality of this commission. They wanted the Supreme Court to rule that the commission, in fact, violated the Constitution and that the legislature and only the legislature had the right to draw the lines. If they had succeeded, they would have redrawn two of Arizona's congressional districts, won a swing district making it significantly Republican, the other a swing Democratic district, probably making it a swing Republican district and would've increased the Republicans in the delegation.
ROTHENBERGAt the same time, the folks in California who also have a non-partisan independent redistricting commission were looking at this and the Democrats in the legislature -- Democrats control the legislature in California -- said, ah, if the Republicans do that in Arizona, we can do it in California and we can create a number of other districts, making them more Democratic. So there was a constitutional question, a philosophical question, but there was practical politics involved in at least two states.
REHMAnd Rick Hasen, you just wrote a column for Slate. You say that this was a big win for supporters of direct democracy. Talk about why.
HASENYeah, so I think that even more important than the immediate effect of this ruling that goes to the question, as Stu has explained, as to whether or not we can have these citizen commissions drawing district lines, it's the question of whether, in those states that have the initiative process, we can do all kinds of things to affect congressional elections. And Justice Ginsberg, in her opinion, said that had the court come out the other way, then moving to an open primary by initiative could be subject to challenge.
HASENGetting rid of straight party tickets, all kinds of things that people might do that affect congressional elections through the initiative process, through direct democracy, which is important not just in the West, but in other parts of the country as well, could've been put on hold, could've been stopped by a ruling saying that only the state legislature can set those rules.
REHMBut isn't that precisely what the Constitution says?
HASENWell, the Constitution says that the matter's in the hands of the state legislature unless the Congress overrules it. The opinion of the majority said, look, first of all, there was no direct democracy at the time that the Constitution was adopted. And if you look at the purpose of the elections clause, it was not to empower legislature, actually to limit legislatures and empower Congress to deal with the problem of legislative self interest.
HASENFurther, there have been two major Supreme Court cases, very old, which is why I didn't expect the Supreme Court would've even heard this case, where the court said that it's okay to have congressional districts approved by a referendum where the legislature proposes law and the people approve it, or having the governor sign it. And so even the dissenters, Chief Justice Roberts, was not adopting a literal interpretation of the word legislature because he was willing to have these other political actors play a role in the process.
HASENSo it's actually much more complicated than what I call a kind of mindless literalism, which seemed to be at the heart of the theory of the Arizona legislature challenging this law.
REHMAnd we should say it was a 5-4 decision with Justice Kennedy joining the majority. Jan Baran, what was your reaction?
BARANWell, I think that everybody was surprised at the result because notwithstanding this mindless literalism contest the Constitution does say, literally, that it's the legislature that has to be involved in redistricting. And as Chief Justice Roberts noted in his dissent, there are 17 references to the legislature in the Constitution itself and there are a lot of elements here that may affect decisions on those other professions down the road.
BARANSo there was kind of an initial reaction of surprise because I think the outcome is surprising. But on the other hand, everyone looks at the situation and what this case does is it leaves everything that is in place, in place. It preserves the status quo. It doesn't change any of the independent commissions in Arizona or in any of the other states and whatever impetus there has been to make these types of commissions in other jurisdictions, well, that can continue.
BARANThere can be little increased momentum perhaps. It says, well, we've eliminated any Constitutional doubt, but the question then remains what can be done in those states -- and, of course, it's a minority of states -- that would provide for initiatives by citizens filing a ballot issue to be voted on regarding redistricting. And that will depend on each state, the culture and whether politically that is appealing.
BARANAnd, of course, it's with respect to something that only occurs every 10 years, which is redistricting, mercifully for all the lawyer, the litigation goes on for at least 10 years, but, you know, a lot of citizens don't pay much attention to this, except when we're getting close to redistricting time.
ROTHENBERGJust a couple points. First of all, I never know what to expect from the Supreme Court so I try not to expect anything. But it is true that our reporters at Roll Call were acting as if they were expecting a different decision from the court and so that doesn't mean the conventional wisdom is right. In fact, it was wrong. But you asked what, you know, what did people expect?
ROTHENBERGI wanted to add one other thing. There is -- I know Richard and Jan have been talking about these kind of extremes about the legislature or ballot measure, the initiative setting up a process of drawing odds, there is kind of a compromise version of that in Iowa. Iowa has a state board that draws congressional districts and then the lines go to the Iowa legislature and they can accept or reject them.
ROTHENBERGAnd often they reject the first set of lines, kick it back to the redistricting board which draws new sets of lines and often the state accepts them. So I know we talked about these extremes, but there are a number of ways to do this, if you don't like the current system, that might improve it.
REHMRick Hasen, do you think a number of other states are going to follow Arizona's lead?
HASENWell, we do know that in Ohio, there were some efforts -- and Ohio is a very important battleground state, very close state in terms of, you know, lots of different elections there. Ohio, there was an effort to try and do this and that effort was put on hold pending the outcome of this decision. People thought, why spend millions of dollars and have a big campaign if we don't know if thing's going to work.
HASENSo now, I think there's going to be momentum there. But I would add, just to go back to the point that Jan made about this happening only once every 10 years, although the litigation lasts all 10 of those years in some places, that it is not just about redistricting. It's about, you know, you think of California adopted the top two primary where instead of running where it's a Democrat against a Republican, against maybe someone from the Green Party or a libertarian, it's the top two candidates that go on in the general election.
HASENSometimes that means two Democrats or two Republicans. I'm not sure that that's a wise policy, just like I'm not sure it's a wise policy to have citizen redistricting. But I'd rather have the people make that choice through the initiative process than have the courts take away the option. So now, as Stu said, there are all kinds of various ways that we could try and do redistricting. What this opinion does is it allows for state experimentation.
HASENIt's actually kind of a pro-federalism opinion in that it gives lots of opportunities to try different things that might improve our political process and maybe get rid of some of the gridlock.
REHMRick Hasen, professor of law and political science at the University of California Irvine and author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown." Short break here. Your calls, your comments when we come back. Stay with us.
REHMAnd joining us now from Boston, Massachusetts, Colleen Mathis. She's chairman of the Arizona Independent Redistricting Commission. Welcome to the Diane Rehm Show, Colleen.
MS. COLLEEN MATHISThank you, Diane, I'm honored to be here.
REHMThank you. What was your reaction to the court's decision on Monday?
MATHISWell, as chair of the commission, I was of course very pleased. I'm very proud of the Arizonans who had the foresight way back in 2000 to implement this important reform. So while I was somewhat surprised that this case came before the Supreme Court, all the way to the Supreme Court, this redistricting session, since we had a redistricting commission 10 years ago, I'm obviously delighted with the outcome.
REHMAnd remind us how your commission came to be and who the objectors were.
MATHISWell, the commission got started back in 2000, as I mentioned. There were a group of citizens who decided that they wanted to do something about gerrymandering and so got together, and what's great about this is a Republican, a Democrat and an independent sat down and started drafting language and came up with a proposition that they then went around to circulate it to others, including some entities like Common Cause and League of Women Voters, who helped. And this group was successful in getting this to the people of Arizona.
MATHISSo they drafted the language, got it on the ballot, and then citizens voted for it, and it ended up passing with 56 percent of the vote. So at that point, Arizona's Constitution was then amended to create this independent commission that would have the responsibility for drawing both congressional and legislative district lines for the state of Arizona.
REHMExplain to us how it works. I gather it is made up of representatives of both parties.
MATHISExactly. So not only was the proposition conceived in a multi-partisan way, with Democrats, Republicans and independents all involved, but the composition of the commission is also multi-partisan. There are two Republicans, two Democrats and one independent, and that independent can be from any party. They could be a Libertarian or from the Green Party. I just happen to be independent or non-affiliated.
MATHISAnd so there's multi-partisanship rooted right in the composition of the commission, which I'm a big fan of. I appreciate bipartisan solutions to the extent we can achieve them.
REHMSo generally explain how the lines were drawn for the 2012 elections.
MATHISSure. The rules we follow are all outlined in the Arizona Constitution, and the new district boundaries must comply first and foremost with the U.S. Constitution and the Voting Rights Act. Arizona is one of nine states that's considered a covered jurisdiction under the Voting Rights Act, which means we have to have all of our plans approved by the Department of Justice.
MATHISThe other federally mandated criteria is equal population to the extent practicable in both the legislative district map and the constitutional district maps. And then the rest of the criteria are also to the extent practicable, and the districts must be, for instance, compact and contiguous, respect communities of interest, use visible geographic features like city, town and county boundary lines, and then favor competitive districts, as well. So all of those criteria the commission has to take into account as they're drawing lines.
MATHISAnd as you might imagine, those criteria are sometimes competing. So it's a balancing act, but you have to make sure you're weighing them all equally and doing the best you can.
REHMSure. I understand that a few years ago, former governor Jan Brewer actually had you impeached. Talk about what that was like and when you were reinstated.
MATHISSure. Yes, so in October of 2011, we were in the midst of -- the commission was in the midst of going around the state and listening to the citizens tell us what was important to them about the lines and what they'd like to see. So we had numerous public hearings and then started drawing our draft maps. And during that draft mapping process, around late October, we received notification from the governor that she was not happy with the job we were doing.
MATHISAnd there is a provision in the Arizona Constitution that allows for the removal of a commission, but they're for very specific things like gross misconduct, inability to discharge the duties of office, et cetera. So she ended up charging me with gross misconduct and inability to discharge the duties of office. And she can -- I can only be removed then after a concurrence of two-thirds of the Senate, but that wasn't a very high bar at that time because they were able to accomplish it pretty handily since the Republicans held a supermajority in the state Senate at that time, so on a party line vote, 21 of the senators voted to concur with her, and so I was removed.
MATHISFortunately, we live in a country with three branches of government, and I'm grateful for the checks and balances that exist. And in Arizona we have some -- we have a really great third branch of government, not only in our court system, but the entire legal community in Arizona is very strong.
REHMSo you actually appealed, and the Arizona Supreme Court ruled in your favor. You were reinstated, correct?
MATHISThat's correct, and it was a unanimous decision by a -- with a bipartisan court. So I was really relieved and grateful.
REHMI think Rick Hasen has something he'd like to say here.
HASENYeah, and I was just going to go back to the point that the commissioner raised about how her maps had to be approved by the federal government under the preclearance provision of the Voting Rights Act. Well, it turns out that's no longer true because in 2013, well after the maps were drawn, the Supreme Court issued its opinion in Shelby County versus Holder, which struck down the formula which was used to decide which states had to get this federal preclearance, and so there is no preclearance right now. Congress hasn't acted to re-enact it.
HASENAnd just yesterday, the Supreme Court agreed to hear yet another challenge out of Arizona, and one of the issues in that challenge is the commission is saying it had to draw its district lines and not have perfectly equal population in some of its districts to comply with the Voting Rights Act, to comply with this preclearance provision. Now that the preclearance provision is gone, are those lines still justified? And the court's going to hear that case next term. So we're far from done.
HASENNow this involves the state legislature rather than the congressional legislature, but it's still employment for election lawyers once again.
REHMSo Colleen, how do you react to that?
MATHISWell, we like to keep them employed, and Mr. Hasen is correct. But at the time that we drew these lines, back in 2011 and early 2012, we did have to comply with the Voting Rights Act, and Section 5 was fully enforced. So it will be interesting to see, you know, how this case moves forward.
REHMSure. So Colleen, how do you respond to critics who say that this process is still political, even though it's run by, quote, independent commissions?
MATHISThat's a great question, and I appreciate you asking it, Diane. Independent doesn't mean nonpartisan or apolitical or anything. It means independent from the legislature. So the name of our commission is the Arizona Independent Redistricting Commission, and some have interpreted that to mean, oh, well, that means you're supposed to take politics out of the process. And while that would maybe be an ideal goal, everyone would maybe like to see that, I don't think it's truly achievable.
MATHISThis is an inherently political process as it is. Drawing political boundaries is political by nature. And so I don't think you can entirely remove the politics from the process, but what you can do is bring it out into the open and engage as many citizens as you can, listen to them and get them to participate in the process and hope that you come out with a set of maps that reflects those viewpoints to the extent you can.
MATHISAnd of course I think taking the person or people who benefit from the lines, which are the elected officials themselves, out of the process, it only makes sense. You're removing the self-interested from drawing those lines. And so...
REHMAll right, and Jan Baran has a question for you.
BARANYes, thank you for all that explanation, commissioner. I had a question as a result of your comment here, recognizing that your -- the commission's decision-making does have apparently political considerations, but the objective of these independent commissions is to produce districts that are, A, more competitive and that result in more moderate elected officials, has that been the case and experience in Arizona, that the congressman or congresswomen who are elected are less intensely Democratic liberals and less intensely Republican conservatives?
MATHISWell, I'd like to think so. I don't think we know fully yet because we've only gone through two elections now with these lines under our belts, but what our commission ended up producing was four safe Republican districts, two safe Democratic districts because of the Voting Rights Act, and then what was leftover, we were able to create three competitive districts. And while that may not sound like a lot, it is 33 percent of the map in Arizona, and when you hear folks say that, you know, there's only 35 truly competitive districts across the country out of 435 seats, three of those are in Arizona and including the most competitive district, where I'm from, which is Congressional District 2.
MATHISAnd what's great about Congressional District 2 is the elections, the past two elections have produced very close results, and the first time a Democrat won, Ron Barber, and the second time Martha McSally, a Republican, won. And so I can only look at, you know, what happens in 2016, and we'll see if it flips back again or if stays Republican, but that race was decided by only 161 or 167 votes. So it was extremely tight.
REHMWow, yeah. Stu Rothenberg, question for her?
ROTHENBERGWell, I guess I would ask, clearly this is about public frustration with gridlock and partisanship in Washington, D.C., but if you have a handful of states, one state here, Arizona here, California here, making the changes, but you have 35 or 40 other states that operate under their -- a different set of assumptions, with politicians making the change, even if you've changed one or two congressional districts in Arizona, how does that affect the bottom line?
ROTHENBERGAnd I'd go even further. Isn't -- is the problem in this country that we have partisan congressional districts, or isn't it that we increasingly have a partisan country, which people having -- there are two very different sets of values, with people living in different parts of the state and parts of the country, and so isn't the partisanship and the gridlock we see simply a reflection of the larger trend throughout the country?
MATHISWell, what I would say, and I'd like to think, and I know I feel this way, that Americans value competitiveness. I think in most contexts anyway, people like to see a level playing field, and may the best candidate win. And I think this independent redistricting approach allows for that -- when competitiveness is one of the factors to consider, allows for that to happen. And I think it does produce not only better candidates who can listen to everyone in the district, not just their own party -- I lost my train of thought, actually. But I just think competitiveness is truly an American value and something to achieve.
REHMAll right, and you're listening to the Diane Rehm Show. Rick Hasen, you wanted to jump in there?
HASENWell, I was just going to say that it sounds great to talk about competitiveness, but it's not always the best thing when it comes to districting. So imagine that you live in a district. Would you rather have somebody who represents your values, who's a strong fighter whether you're -- say you're a partisan, really liberal Democrat living in Santa Monica or a really conservative Republican living in some part of Connecticut, don't you want someone who's going to really represent your values, as opposed to the election keeps swinging, and sometimes you're well-represented, and sometimes you're not?
HASENAnd so it's interesting that if you look at the California redistricting commission, which is also kind of set up in a similar way, with Democrats, Republican and decline-to-state voters on the commission, there is no mandate for competitiveness. It has produced a little bit more competitiveness, but it's not baked in the way it is in Arizona. So it's really, it's a contested political question, and I think it's great that we're experimenting with it, but it's not necessarily an unalloyed good to say more competitive districts are good for America.
MATHISI think it's true that competitiveness is in the eye of the beholder, and so just from an independent's point of view, I happen to value it. So to me, I'd like to see more competitive districts because I do think it does force elected officials to be more responsive to their constituents and...
ROTHENBERGYeah, you know, I think your listeners may or may not know this, I don't know, but it wasn't until the early and mid-60s that these kinds of questions about how to draw districts were regarded as subjects, appropriate subjects for judges. These were -- the assumption was these are simply political decisions that politicians make. So it's interesting the changes that have occurred from 1962, '64 to now, a fundamental shift on how we evaluate these districts and who draws them.
REHMBut isn't that because some really weird districts were redrawn?
ROTHENBERGOh, Diane, we've had really weird districts in state going back to Elbridge Gerry and the drawing of his state legislative district in Massachusetts. That's -- I believe that's the source of...
REHMSo this argument's been going on for a long time?
ROTHENBERGOh yes, yeah. The people who lose out always complain that it's unfair, and the insiders are judging, and the people who are in control say, well, it's a political question, and we've been elected.
BARANYeah, Stuart is right. For the first 170 years, the courts said we're not going to make -- get into these decision because it's a political thicket. That's what they called it. And Justice Ginsburg's opinion for the majority in this case, she bemoaned two things. One was that the court in this 50-year period when it started meddling with redistricting had concluded that partisan gerrymandering could violate the Constitution. But they couldn't explain what partisan gerrymandering was and what the criteria was. So that's one reason, I think, that they've kind of upheld these commissions because we'll let the commissions figure that out. We can't figure it out.
BARANAnd then the other thing that Justice Ginsburg said, which I thought was quite remarkable, is that, well, you know, we just have all this litigation about redistricting. We keep getting these cases all the time. And of course that's the point that Supreme Court justices made for 170 years. We don't want to get into this because it's just a briar patch.
REHMAll right. Jan Baran, he is head of the election law group at Wiley Rein. And Colleen Mathis, thank you so much for joining us.
REHMAnd as you can well imagine, we had many phone calls, emails. Here's an email from Leah. And I'll direct this to you, Rick Hasen. I know you have to leave us shortly. Why specifically can't all votes be popular votes in this technological age? I understand in the old days, it was necessary due to speed of data transmission, but still?
HASENWell, is this for making legislative decisions, do you think the question is? You know, have direct democracy for everything? If that's the question...
REHMI think it's the latter. Yeah.
HASENYeah, I think that would be a disaster. First of all, there's so much to do, that, and so much to understand, that putting everything up for a (word?) would be just impossible to run. It also makes it impossible to compromise. It makes it impossible to make the deals that make our government work. I think everybody who defends direct democracy, and it has its detractors, see it as a supplement rather than as a substitute for having a legislature.
REHMI see. All right, and here's an email from Elena in Akron. She says, if you take a look at the Ohio District map, you will see lovely concentric circles around Republican controlled regions. The area left for Democrats is the northern, eastern portions. After the last census, they went into the bunker. She says, look it up. And stretched it as far as they could. Stretches south over 75 percent of the state. It is not representative of the electorate. Do you know about that, Rick Hasen?
HASENWell, first of all, when district lines are drawn, you've gotta comply not just with one person, one vote rules, you also have to comply with the Voting Rights Act and sometimes, the shape of those districts are drawn in order to give representation to those racial and ethnic minorities that are protected under the Voting Rights Act. But part of this is partisanship. And I would just point out that if you live in a really ugly shaped district, as many of us do, you don't experience it on a day to day level. You don't know, when you're walking down the street, that you've crossed into another district, so it's kind of an artificial construct.
HASENI've always found that the shape of the district is not as important as the quality of the representation.
ROTHENBERGWell, you know, and is certainly right. Well, first of all, I should say there's no requirement that districts have to be representative of the population. That's actually not a requirement. But she's certainly right that Ohio is a gerrymandered state. It was gerrymandered by the Republicans, just as Pennsylvania and North Carolina have been gerrymandered by Republicans. And just as Maryland and Illinois have been gerrymandered by Democrats. So, drawing districts in a way that favors one party over the other is a long, long time political tactic.
REHMToo bad. Too bad.
ROTHENBERGEffused by both parties to, that's right.
ROTHENBERGUnless you change the way districts are drawn and Rick favors that and a number of other people do.
ROTHENBERGYou're gonna get the system we have now.
REHMAll right, let's open the phones. We'll go to Steven. He's in Collinsville, Alabama. You're on the air.
STEVENYes, to a larger philosophical question about the character of the country and values, Robert Wuthnow at Princeton, just a few months ago, his book, "A Rough Country." About how southern Baptist fundamentalism in Texas is the template for the Tea Party across the south. And the fast forward, in the wake of discussions about the Confederate Flag, former governor of Georgia, Roy Barnes was on Georgia Public Radio over the weekend, reminding people, among other things, that Lee Atwater in South Carolina said one of his goals was to have a white Republican primary and a black Democrat primary.
STEVENHere in Alabama, the speaker of the house, Mike Hubbard, was the subject of a cover story in the New Republic, by Jason Zingerly, which approached the subject of leaching and the strategy to weaken the voting power of blacks in the state and the burgeoning Hispanic population. I wanted to ask if you're familiar with that article, and then also, a larger philosophical question piece, especially here in the South, in the wake of the Confederate flag, if it might be for southeastern conference football to settle the subject of (word?) character and values. Thank you.
REHMAll right. Rick Hasen.
HASENYeah, I can just say that, maybe unsurprisingly, the Supreme Court also weighed in this term on Alabama's redistricting. And it said that it's possible that the Alabama districts were drawn as a racial gerrymandering, taking race too much into account on the very theory that white Republicans were trying to force African Americans into a smaller number of Democratic districts. And that case is now sent back, and so as Jan said, these cases can go on for the entire decade.
REHMAll right, to Bill in Chicago, Illinois. You're on the air.
BILLYes, I just have a question why disenfranchisement is never discussed. As a true independent, if I live in a district that's been gerrymandered one way or the other, I've been, in effect, disenfranchised in my vote. Because there are plenty of districts where there's no point in voting if you're not from the dominant party. Because your vote will not count. You can make all the arguments you want about you still have one person, one vote, but if it's been gerrymandered so that there's percentages there's no way a candidate can win.
BILLAnd again, I hear all the arguments about the best candidate will win, but I know plenty of people who will vote straight ticket and have vowed never to vote for a candidate from another party, regardless of how well that candidate is.
REHMAll right. Stu.
ROTHENBERGI would respond that your vote does count. It's just -- it doesn't produce an outcome that you want, but that's the way the system works. Look at the Presidential elections. There are only seven to 10 states that matter. If you are a Republican in California or New York or Massachusetts, why go to vote? You know Democratic presidential nominee is gonna carry the state.
REHMHow about being a resident of the District of Columbia?
ROTHENBERGWell, that's a different case.
REHMThank you very much.
REHMIt's a very frustrating situation to be in. Let's go to Alan in Waynesburg, Virginia. You're on the air.
ALANThank you, Diane. You know, the Constitution is quite clear on this point. And I'm saddened that the Supreme Court has once again set the Constitution aside and decided to legislate from the bench. Legislative redistricting commissions are merely a way to get around the majority parties in legislatures. And we're still gonna have gridlock, only it's gonna be a different gridlock from the current ones we have now.
BARANI agree with the caller. And that's why I asked the commissioner from Arizona, the Chairman of the Redistricting Commission there, you know, whether all of these independent agencies and line drawing has produced less gridlock and she did say it created some increased competitiveness. But the example that she gave of that one district where the candidate switched. Well, I believe the first winner, the Democrat, was a real, you know, down the line liberal Democrat.
BARANAnd then the Republican who won the next election was a pretty straight forward, down the line conservative Republican. And one of the results that had been advocated in creating these types of commissions is not that you're going to continue electing really strong and sort of relatively hard core extreme politicians, but we're going to get more moderates who are going to, you know, collaborate more and produce more legislation. And that clearly hasn't happened. And in terms of the caller's observation about what the Supreme Court is doing, he's absolutely correct.
BARANI mean, that's why we were all surprised. The Constitution says, the legislature has to be involved in redistricting. And that's what we thought was going to be the result. But the Court came out with this conclusion. I think that they did so, basically because they are struggling with redistricting cases. I think that they realize that the outcome wouldn't change anything. And so, they said, well, you know, it's really difficult to amend the Constitution, and if we can't amend the Constitution and we don't want to overturn the apple cart in 20 states that initiatives and things of that sort. Let's just interpret legislature to mean direct democracy.
ROTHENBERGYou know, I'm certainly sympathetic to the caller. I understand his frustration and...
ROTHENBERG...disbelief. Having said that, we've been around long enough to know that the Constitution is what five members of the Supreme Court say it is. And the Court has really been elevated to a point now where in some respects, the, kind of, there are checks and balances to everybody except the court. And the public seems to believe that and accept that, and that's the reality.
REHMAll right. To Justin in Allen, Texas. You're on the air.
JUSTINYes, good morning. Thank you for having me on.
JUSTINAnd good to see you back, Diane.
JUSTINGreat to have you back on the show. My question is just in reference to voting, do any of the panel feel that with the extremely low turnout in the last election, that is, a lot of people see their districts being gerrymandered that it caused a lot of empathy, apathy issues for people, and if that's causing the low turnout in voting.
ROTHENBERGWell, you know, first of all, Presidential turnout has actually been up over the -- if you look over the last 50 or 60 years. I mean, we're up into the mid to upper 50s, I think, as a percent of the electorate. We used to be down around 48 to 52. So, we're up a hair. But the caller is correct. There are a lot. We have a huge number of Americans who are eligible to vote who do not vote. Is it gerrymandering? Maybe they think that their vote is wasted, say, if you're a Democrat in Mississippi or Alabama. Why vote in the Presidential contest?
ROTHENBERGYou're not going to have an impact there? Some people think it's the tone of the campaign, Diane. That we have increasingly negative campaigns. Where we have campaigns. Now, we don't have campaigns everywhere. But where we have them, more money is spent on more negative ads and that may be turning off people. That's another possible explanation.
REHMSo, currently, you've got, what, 10 states that have commissions to redraw.
ROTHENBERGNo, I think it's less than that.
BARANWell, I think it's nine states. Of course, one of them is Montana, which only has one Congressional district now.
BARANSo, they don't have anything to redraw every 10 years until they get an extra district.
ROTHENBERGYeah, but it's in that ballpark. Yeah.
REHMAll right, let's go now to Raleigh, North Carolina. Hi Jane. You're on the air.
JANEHi, thank you very much for taking my call.
JANEI work -- I've been working with a group since 2005 to get redistricting change in North Carolina. We are probably one of the poster children for gerrymandered districts. And there are several reasons why we think we need change and I think you've addressed some of them. But one of the biggest ones is that in our 2014 election, almost 50 percent of our state legislative seats were decided on or before primary day in May. So, we have a lot of people who have no reason to go to the polls to vote for legislators in non-Presidential years.
JANEIn those races, the race was either in the primary, or in many cases, there was no candidate who was -- there was only one candidate running. And our coalition, which is called the North Carolina Coalition for Lobbying Government Reform is interesting in that we stretch from the far right to the far left in North Carolina. Because people just feel that we have had 140 years of bad redistricting and it's time for a change. And the thing that we think is most important is strict criteria.
JANEOne of the things we like about the state of Iowa is that they have some pretty strict definitions of what has to be done. There are some other states that do that, and we think that the criteria is probably at least as important as the method and maybe more.
REHMGive me a sense of the kind of criteria that's out there, Stu.
ROTHENBERGWell, I think the one that most people think about, maybe Jan wants to help me out on this, is compactness. That most people think, you keep a district compact, that is, you don't have these tentacles spreading out.
ROTHENBERGEast, west, south, picking up particular populations, particular communities, particular developments, Diane. I mean, the research on this, the computer stuff is so good, they know what streets to put in a particular district. But if you make them compact, square, circular, you're likely to get communities of interest in a particular area. And that is a more dispassionate way of drawing lines.
REHMAnd you're listening to The Diane Rehm Show. Jan, you wanted to add.
BARANI was gonna say, historically, in North Carolina, compactness has been a challenge in order to comply with the Voting Rights Act. And there was a district there, and I know Stuart will remind me which one it was that was, I think, called the Interstate 95 District. And it ran down the interstate highway for many, many miles. But the reason it did so was to encompass a sufficient number of minority voters in order to produce...
BARAN...a district where it was likely to result in an African American representative.
ROTHENBERGIt might have been Mel Watts' district. I'm not quite sure, but I think it was Mel Watts' district. Yeah.
BARANIt was Mel Watts, who is now the Secretary of Housing, I believe. Right?
REHMAll right, and to David in Fort Myers, Florida. You're on the air.
DAVIDYes, my question and comment is it seems to me that if you have a commission rather than a legislature redistricting, that you limit the effect of outside money coming in to the state, such as the one percenters buying an election to set up a state legislature to do what it wants it to do. I mean, basically, and it seems to me that it makes it more fair.
BARANWell, I think that's the question, and I think people would study the results in states like Arizona and California, whether that has resulted in districts that are more fair or less influenced by so-called outside money, as you describe it. On the other hand, I think that the real problem with the procedural problem with legislature is doing a redrafting is that they have a self-interest in it. Because they are already representing a district and they want to preserve that district for themselves. And it's gonna be difficult to quote, buy a representative that's voting otherwise against their own self-interest.
BARANYou know, the caller from North Carolina raises an interesting -- they're trying to create something resembling an independent commission there. But North Carolina, I believe, is one of those states that does not have direct elections or initiatives and propositions that the voters can propose and then have -- it all has to come from the legislature. As was the case in Iowa, so, you know, you can have changes resulting from the legislature, but that's going to be very difficult.
ROTHENBERGYeah, and in North Carolina, the governor cannot veto the redistricting. It's one of like five states where the governor is involved, so there's not that check and balance. Interesting, Florida passed a Fair Districts ballot measure within the last few years, and it is now in court. It was essentially moved by, pushed by Democrats who were unhappy with the Republican drawing lines. And, of course, you don't say it's a Democratic effort, you say it's a good government effort. And what they're trying to do is limit what the legislature can do in terms of breaking boundaries and drawing creative lines. And they want compactness and continuity and things like that.
REHMAll right, last quick question, and I want a 10 second answer from each of you. Is the issue of the electoral college more important than the issue of redistricting?
BARANWell, electoral college reform has been boosted somewhat by this decision. Because, of course, the provision in the Constitution regarding how electors are chosen is deferred to by the legislature.
ROTHENBERGOh, Diane. This is a complicated question and it all depends...
ROTHENBERG...and it all depends on your values and interests. You know, if you think states are important, you don't want to devalue them, then the current system ought to be left. If you don't believe that, change is possible.
REHMAll right, Stuart Rothenberg and Jan Baran. Earlier, Rick Hasen. Thank you all so much. Thanks for listening, all. I'm Diane Rehm.