How Independent is Too Independent?: Redistricting Commissions and the Growth of the Unaccountable Administrative State

• Author: Jason Torchinsky and Dennis W. Polio
• Position: Partner at Holtzman Vogel Baran Torchinsky Josefiak PLLC, specializing in campaign finance, election law, lobbying disclosure and issue advocacy groups/Senior associate with Holtzman Vogel Baran Torchinsky Josefiak PLLC, specializing in constitutional law, campaign finance and election law, appellate advocacy, and taxexempt organizations
• Pages: 533-573

How Independent is Too Independent?:

Redistricting Commissions and the Growth of the

Unaccountable Administrative State

JASON TORCHINSKY*AND DENNISW. POLIO**

ABSTRACT

Redistricting commissions are quickly proliferating across the country.

These commissions are intended to alleviate concerns about how redis-

tricting is conducted in an era of powerful computing technology, widely

available data, and advanced mapping software. However, as with all

things connected to public administration, the “devil is in the details.”The

proliferation of redistricting commissions raises numerous questions: Are

these commissions accountable institutions that increase public trust in the

redistricting process? Or are they simply another sy mptom of an ever-

expanding administrative state that removes key decision-making from

public officials accountable to voters? Will responsive public officials

make redistricting decisions? Or will such determinations fall to bureau-

crats or politically connected consultants who are completely insulated

from the public will? With the stakes of redistricting so high, and when

entrusting that process to an unelected commission, it is essential that

redistricting commissions are accountable to the public for t heir decisions.

This Article summarizes the varieties of state redistricting commissions and

provides a lens through which to evaluate their accountability to the public.

Ultimately, this article concludes that, if redistricting commissions continue to

proliferate, states must carefully study how to properly structure them to maxi-

mize accountability.

* Jason Torchinsky is a partner at Holtzman Vogel Baran Torchinsky Josefiak PLLC, specializing in

campaign finance, election law, lobbying disclosure and issue advocacy groups. He holds a B.A. in

Government and Public Policy from the College of William and Mary and a J.D. from the College of

William and Mary School of Law, where he also serves as an adjunct professor. This Article is written in

his personal capacity and not on behalf of any client of his law firm.

** Dennis W. Polio is a senior associate with Holtzman Vogel Baran Torchinsky Josefiak PLLC,

specializing in constitutional law, campaign finance and election law, appellate advocacy, and tax-

exempt organizations. He graduated cum laude from Fairfield University with a B.A. in Politics, magna

cum laude from Syracuse University College of Law with a J.D., and from the Maxwell School of

Citizenship and Public Affairs at Syracuse University with a Master of Public Administration degree.

Dennis previously served as a law clerk to the Honorable Carmen E. Espinosa, Associate Justice of the

Connecticut Supreme Court. This Article is written in his personal capacity and not on behalf of any

client of his law firm.

The Authors wish to thank Matthew Peterson and Andrew Pardue for their assistance; the

Georgetown Journal of Law & Public Policy for the wonderful opportunity to publish this article; and

the Authors’family, friends, and co-workers for their patience and support that enabled the Authors to

complete this Article. © 2022, Jason Torchinsky & Dennis W.Polio.

533

TABLE OF CONTENTS

INTRODUCTION ............................................ 534

I. A BACKGROUND OF INDEPENDENT REDISTRICTING COMMISSIONS .. 536

II. NOTABLE EXAMPLES OF REDISTRICTING COMMISSIONS AMONG THE

STATES ............................................. 541

A. Redistricting Commissions Especially Lacking in

Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

1. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

2. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547

3. Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550

4. New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554

5. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 556

B. Accountable Redistricting Commissions. . . . . . . . . . . . . . . . . 558

1. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559

2. Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561

3. Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563

4. Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564

5. Oklahoma. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565

6. Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567

7. Rhode Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568

III. PROBLEMS WITH LESS ACCOUNTABLE REDISTRICTING

COMMISSIONS ........................................ 569

IV. HOW CAN REDISTRICTING COMMISSIONS BEMORE

ACCOUNTABLE?....................................... 572

INTRODUCTION

In recent decades, redistricting commissions have grown in popularity across

the country. Indeed, recent political trends as well as changes in jurisprudence at

the federal and state levels will likely fuel the creation of even more redistricting

commissions in additional states in the near future.

With their expansion, it is imperative that the structure, authority, and charac-

teristics of redistricting commissions are examined closely—because not all

534 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:533

commissions are created equal. These differences implicate not only how redis-

tricting commissions function, but also whether such commissions will lead to

further expansions of the administrative state or function in a publicly accounta-

ble manner. As Alexander Hamilton appropriately reminded us in Federalist No.

27:“I believe it may be laid down as a general rule,that [the people’s] confidence

in and obedience to a government, will commonly be proportioned to the good-

ness or badness of its administration.”

1

Of course, there are many factors that

affect the “goodness or badness”of government; but one of the most important,

especially in the context of administrative agencies, is whether public officials

are held accountable for their decisions

2

After all, the legitimacy of governmental

actions in a democracy depends upon the consentof the governed.

3

The most basic form of political accountability, and therefore democratic con-

sent, is achieved through periodic elections in which voters may accept or reject

officials based on their performance in office.

4

However, in the context of redis-

tricting commissions, such public accountability is elusive because commission

members are not publicly elected to their positions. The public’s inability to

approve or disapprove of commission decisions erodes the essential constitu-

tional check on governmental overreach that the Founders envisioned.

5

Despite

presenting accountability issues of their own, at least federal agencies consist of

political appointees who can be fired by the President and are subject to federal

law imposing additional procedural requirements.

6

Most state redistricting com-

missions, on the other hand, lack similar checks. Accordingly, it is only the form

and characteristics of state redistricting commissions that impose any semblance

of accountability.

Indeed, redistricting commissions come in many shapes and sizes. Some pos-

sess complete authority to redistrict; others hold conditional authority over redis-

tricting in the event the legislature fails to act; still others act in an adversarial

1. THE FEDERALIST NO. 27, at 177 (Alexander Hamilton) (Central Law Journal Co. ed. 1914).

2. Glen Staszewski, Reason-Giving and Accountability,93M

INN.L.REV.1253, 1254 (2009).

3. See id. (citing Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV.L.REV.

434, 442 (1998)) (explaining that under theories of popular sovereignty “a regime is legitimate if people

are made to follow only those rules to which they have consented”); see also THE DECLARATION OF

INDEPENDENCE, para. 2 (U.S. 1776) (“Governments are instituted among Men, deriving their just powers

from the consent of the governed . . . .”); George Mason, VIRGINIA DECLARATION OF RIGHTS § 6 (Va.

1776) (“[A]ll men . . . have the right of suffrage and cannot be taxed or deprived of their property for

public uses without their own consent or that of their representatives so elected . . . .”).

4. See generally Staszewski, supra note 2.

5. See Timothy P. Brennan, Note, Cleaning Out the Augean Stables: Pennsylvania’s Most Recent

Redistricting and a Call to Clean Up This Messy Process,13W

IDENER L.J. 235, 337 (2003) (asserting

that the founders believed that legislators should be accountable to the people, which was the most

essential constitutional check on the government).

6. See Michael S. Kang, De-Rigging Elections: Direct Democracy and the Future of Redistricting

Reform,84W

ASH.U.L.REV. 667, 690 (2006) (citing Sidney A. Shapiro, Administrative Law After the

Counter-Reformation: Restoring Faith in Pragmatic Government,48U.K

AN.L.REV. 689 (2000)); see

also Richard B. Stewart, Essay, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437

(2003); Richard B. Stewart, The Reformation of American Administrative Law,88H

ARV.L.REV. 1669

(1975)).

2022] THE ACCOUNTABILITY OF REDISTRICTING COMMISSIONS 535