Once again Californians are being asked at this election, in Proposition 11, whether we want to establish an “independent” commission to redraw legislative district boundaries after each national census. Notwithstanding that this measure is closer than the other 11 propositions on the statewide ballot to my own field of research, I remained undecided on it until today (whereas a decision on most of the others was immediately obvious).

I have decided to vote no, but it is not a decision I make with good feeling, as there are many positive things about the measure. And much wrong with the status quo.

As an advocate of reform away from plurality, I have a difficult time getting excited about tinkering within the framework of a plurality system. That we are debating, in 2008, whether to take drawing of district boundaries out of the hands of self-interested elected legislators, shows how far we have not come in democratic electoral politics.

from Maine westward to the Pacific Ocean, in the last ten years, in no state whatever had there been an honest and fair district apportionment bill passed for the election of members of Congress [except] where two branches of a legislature were divided in political opinion, and one checked the other.

That quotation is from Henry Droop, a passionate advocate of reforms away from plurality, and specifically of the single transferable vote. He wrote those words in 1869. Here we are in 2008, and the words still ring true, other than their needing to be amended by a recognition that in modern times divided partisan control has often resulted in an arguably even worse outcome: the bipartisan incumbent-protection racket, rather than an “honest and fair” bill.

Reforms to put map-drawing in the hands of “independent” agencies were adopted long ago in most plurality jurisdictions. But here we are, still debating it. And here I am, unable to vote for the measure.

There are actually several items in the measure’s favor. First is the obvious fact that legislators’ drawing legislative district lines is a conflict of interest, which we the people should take away. It is a clear “good government” reform. Also arguing in favor is a pragmatic reformer’s long-run view: Progress towards proportional representation (of whatever form) is unlikely so long as there is a claim to be made, such as is made by the proponents of Prop 11, that redistricting reform will result in a more responsive legislature with fewer ‘safe’ members. I suspect that the movement in that direction, while likely positive, is unlikely to be substantial. Maybe the PR movement needs a period of time for discontent about the impact of ‘fair districting’ to sink in before the public will be open to real reform.

Yet another argument in favor of this specific measure is that, unlike past proposals, this one does not include the state’s House of Representatives districts within the purview of the proposed redistricting commission. Of course, I would favor the drawing of House districts on independent criteria, rather than by state legislators–if we must keep plurality election of the House. However, I am not an advocate of unilateral partisan disarmament. A move to independent redistricting in one large and Democratic-dominated state without simultaneous moves by some significant Republican-dominated states risks the future partisan balance of the House. Thus redistricting reform in the House presumably should be done via constitutional amendment or an interstate compact (on the model of the National Popular Vote for the presidency).

The specific measure has some major problems, however. It has an extremely complex procedure designed to keep it free of partisan influence, yet at the same time it allows the leaders of the two major parties in Sacramento to strike names from the short list of candidates for commissioner.¹

The commission would be comprised of 14 members, five from each of the two largest parties (based on voter registration) and four who are not registered with either of the two largest parties. Right there, that alone is almost a deal-breaker for me: it entrenches a role in election district-drawing for two parties, not even allowing for the possibility that a third party might one day win a seat or two. If such a party did win a seat or two, this commission would find it easier than a genuinely independent agency to gerrymander the third-party districts out of existence.

The Commission would be granted funds and software with which to draw maps, based on specific (and good–but, as discussed in the comments, potentially contradictory) criteria laid out in the measure.² A decision on maps for each house of the legislature³ would have to be taken by nine votes on the Commission, including at least three votes by Commissioners representing each of the major parties and three Commissioners not representing the two major parties.

The appointment process is convoluted, but starts with self-selection in that voters submit applications. The State Auditor⁴ establishes an Applicant Review Panel (ARP), drawn randomly from auditors until there is one name from each major party and one who is registered with another party or nonpartisan. The ARP then screens the applicants, disqualifying those with stipulated conflicts of interest (including having been a candidate to partisan office or a family member of a candidate, and various other disqualifications).

Names are then drawn from the remaining pool to form a short list of 20 from each major party and 20 more who are not registered with a major party. These three groups of 20 are identified in the measure as the “subpools.” This is where the ‘strikes’ come in. The majority and minority party leaders in each house of the state legislature are now each allowed to remove two applicants from each subpool–for a total of 8 possible strikes from the original 60. Then the remaining names go forward to the State Auditor, who draws up the preliminary members of the Commission. The Auditor, however, selects only eight members (3 from each major party and 2 who are not). The remaining six (2 from each major party and 2 not from either major party) are co-opted onto the Commission by the originally selected eight (from the subpools). That feature limits the randomness inherent in the initial creation of the subpools, because if the initial six are comprised in part of members with partisan interest, they then have the ability to stack the rest of the Commission in their favor.

I actually am simplifying what is in the actual text of the measure! I wonder if a less complex process could have been devised? Perhaps even one with less input by top leaders of the partisan duopoly?

One troubling feature of the measure is the absence of any realistic role for the 19.5% of voters registered “Decline to State” [any party affiliation] or the 4.3% registered with parties other than Republican and Democrat.⁵ While voters from this pool of the electorate can submit their names, there is nothing to stop the leaders of the major parties from exercising their ‘strike’ option against anyone who enters the pool and is seen as an advocate for interests beyond those of the two main parties. And there is no representative of voters other than Democrats and Republicans delegated the ‘strike’ authority. In fact, one could doubt whether the legislative leaders are meaningful representatives for this purpose even of the voters who register with their parties.

In essence, the drafters of this initiative are trying to make the process appear to be driven by citizens,⁶ but were not willing to go as far as something resembling an actual Citizens Assembly.⁷ It looks to me as if this Commission is so structured as to recreate bipartisan dominance through what only looks like an independent commission. Yet it would be entrenched in the state constitution.

The disenfranchisement of actual independent voters reminds me of another of my favorite passages from Droop’s 1869 essay on electoral reform (part of which is enshrined in the blog’s banner):

a large proportion of the electors who vote for the candidates of the one party or the other really care much more about the country being honestly and wisely governed than about the particular points at issue between the two parties; and if this moderate non-partisan section of the electors had their separate representatives in the assembly, they would be able to mediate between the opposing parties and prevent the one party from pushing their advantage too far, and the other from prolonging a factious opposition.

Indeed, this measure shows–and entrenches–the difficulties those moderate and nonpartisan voters have of gaining representation in a fundamental part of the democratic process: districting. As I indicated above, of course, I doubt that such voters who care, above all, “about the country [or state] being honestly and wisely governed” can ever be fully enfranchised through single-seat districts. And, as I have often argued here, significant electoral reform is unlikely as long as no third parties make breakthroughs into our representative bodies. Californians have before them on Nov. 4 a measure that would make such a breakthrough no more, and perhaps less, likely than it is now, by entrenching a bipartisan dominance over the redistricting process. For these reasons, I will be voting NO on Proposition 11.
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1. The text of Prop. 11 may be downloaded from the California Secretary of State‘s Office. [↩]
2. The new criteria would also bind the legislature in the drawing of House of Representatives districts. [↩]
3. And the State Board of Equalization. [↩]
4. The State Auditor is selected by the Governor from a pool of three names sent forward by a bicameral Joint Legislative Audit Committee of the state legislature. [↩]
5. Registration figures available from the Secretary of State. [↩]
6. It is more citizen-driven than the last proposal, for sure. In that one, the line-drawing panel was to be made up of retired judges. [↩]
7. Such as the ones that recently proposed entirely new electoral systems in British Columbia and Ontario, or recommended adjustments to the system in the Netherlands. [↩]