TABLE OF CONTENTS INTRODUCTION 1789 I. STATE MODELS FOR TRANSPARENCY IN REDISTRICTING 1793 A. Redistricting Transparency Provisions in 1793 Noncommission States B. Transparency and Redistricting Commissions 1805 C. Technological Innovation and Redistricting 1811 Transparency II. THE PERILS OF TRANSPARENCY IN REDISTRICTING 1817 A. The Problem of Transparency 1818 B. The Problem of Redistricting Transparency 1821 III. REDISTRICTING TRANSPARENCY IN 2020: BEST 1828 PRACTICES A. Clarify 1828 B. Consider Timing Carefully 1829 C. Embrace Technology 1831 D. Fear Technology 1834 CONCLUSION 1835 INTRODUCTION
For much of this country's history, the redistricting process--like so many other government processes--took place in proverbial (if not literal) smoke-filled rooms. (1) If legislative redistricting happened at all (which, for decades it did not, despite state constitutional commands), (2) the process included very little, if any, public oversight or input. (3) Practical realities prevented meaningful oversight. Few Americans were aware the process took place and lacked the rarified legal and technical expertise to understand redistricting's subtleties and evaluate legislative maps. (4)
In the 1950s and 1960s, public attention to inequities in redistricting, specifically malapportionment between rural and urban districts, gave rise to heightened public awareness of the issue generally. (5) Equipopulation concerns culminated in the Supreme Court's "one person, one vote" mandate in 1962, requiring that states redraw congressional and state legislative districts every ten years to account for changes in population. (6) According to public opinion polling at the time, the vast majority of members of the public (76 percent) agreed with the "one person, one vote" principle. (7) If the public conceptually absorbed and approved of the idea of "one person, one vote," intermittent polling thereafter established that the vagaries of the rest of the redistricting process remained largely removed from public consciousness. (8)
In the decades that followed Baker v. Carr, states dutifully completed the decennial redistrict. (9) But public participation and oversight of the process remained minimal. (10) State legislatures largely shrouded the redistricting process from public view and built in few public input mechanisms. (11) Cloaked processes and mounting fairness concerns later prompted reform efforts, particularly in states with direct democracy mechanisms. (12) In several states, reformers created independent redistricting commissions featuring a variety of transparency measures to make the process more open, participatory, and accountable. (13)
In the 2010 round of redistricting, many states saw an unprecedented level of public participation buoyed by a technological revolution in the way the public could engage in the process. (14) In the last round, any person with access to a computer, redistricting software, and basic knowledge of the line-drawing process could draw his or her own maps in several states using the same data legislative linedrawers used. (15)
This Article posits that these trends will be joined in 2020 by another more recent phenomenon: unprecedented levels of public interest in redistricting. Since the 2016 election and subsequent high-profile partisan gerrymandering cases in Wisconsin, Maryland, North Carolina, and Pennsylvania, public interest in the redistricting process is expanding. (16) The experience of the Virginia redistricting reform organization OneVirginia2021 is illustrative. The group formed in 2013 to press for reform amid public outcry following the 2010 round (which installed incumbent-protective maps resulting in only two seats changing party hands in the subsequent election). (17) In the following several years, the organization's leadership struggled to gain traction. In January 2015, the group had 3500 supporters. (18) The fallout from the 2016 election, the Supreme Court's invalidation of Virginia's state legislative maps as unconstitutional racial gerrymanders in 2017, (19) and unprecedented local, state, and national attention to the issue of gerrymandering (as well as the group's own successful efforts to strike a chord), all combined to swell OneVirginia's ranks to 73,000 active members as of March 2018. (20) Polling in Virginia bears this trend out, showing an increase in interest in redistricting, particularly among younger voters. According to a Christopher Newport University Wason Center for Public Policy survey, in 2015, 33 percent of Virginia voters ages eighteen to forty-four indicated familiarity with redistricting concepts. (21) Polling in 2017 suggests that percentage has almost doubled to 64 percent. (22)
As of this writing, it appears likely that public interest in the process in the 2020 round could rise to levels states have not previously experienced.
Are states prepared for a potential onslaught of interest? What measures can states take to ensure that public participation and oversight mechanisms are functioning and adequate? Are states preparing for negative consequences of increased public scrutiny? Public channels of input can distort rather than enhance the process, particularly given our current landscape of purposeful misinformation campaigns and security lapses. Furthermore, massive public interest can flood the process, making it difficult for line-drawers to deliberate effectively, let alone absorb and incorporate public will. In this environment, ensuring public satisfaction with redistricting outcomes presents an enormous challenge for 2020 line-drawers.
This Article examines whether current state redistricting transparency rules are adequate and suggests ways in which states might improve redistricting transparency mechanisms. The Article proceeds in three Parts. Part I provides an overview of state redistricting transparency rules and innovative approaches to transparency in redistricting. Part II describes the risks inherent in transparent processes, suggesting that redistricting is particularly vulnerable to challenges transparency poses. Part III concludes with a set of decision points to help ensure that increased public interest in the redistricting process translates to meaningful public input and oversight--and public buy-in once the process is complete.
STATE MODELS FOR TRANSPARENCY IN REDISTRICTING
This Part surveys current state redistricting transparency environments in three categories: transparency rules in states in which legislators draw the lines; transparency rules governing independent redistricting commissions; and finally, a sampling of experiments with redistricting transparency innovation.
Redistricting Transparency Provisions in Noncommission States
As of this writing, thirteen states will employ some form of independent commission to draw state legislative lines in 2020. (23) In seven states, independent commissions will draw lines for U.S. congressional districts. (24) In the remaining thirty-seven states, legislators will draw the lines of their own districts, and forty-three state legislatures will draw U.S. congressional maps. (25) Most state redistricting transparency provisions in noncommission states are found in state statutes. (26)
Most state statutory approaches require some combination of public meetings, notice, and publication of draft maps. Oregon's redistricting transparency statute, for example, requires its legislature to hold ten public hearings throughout the state prior to proposing a reapportionment plan. (27) Following the proposal of a plan, but before adoption, the legislature must, to the extent practicable, hold five more public meetings in each congressional district or via teleconference to permit active citizen participation throughout the state. (28) In addition, the statute requires appropriate public notice of each hearing be given; at least one of the preproposal hearings be held in each congressional district; and, at least one preproposal and one postproposal hearing be held in areas with the greatest population shifts since the previous reapportionment. (29) Finally, people in remote locations must be permitted to provide public testimony at the hearings remotely through video equipment. (30)
In the past, even states with statutory transparency provisions have run into trouble. Illinois provides an example. A 2011 statute mandated that the Illinois legislature provide notice and hold public hearings during its redistricting process. (31) Despite these requirements, vocal criticism of the state's transparency measures ensued. Critics argued that the new law provided only a facade of transparency. (32) As one journalist described it, "Democratic leaders in Illinois held dozens of public hearings... [, b]ut all of the meetings came before the congressional redistricting maps were released, and the Democratic majority quickly approved their own proposals with little opportunity for the public, or Republicans, to voice concerns." (33) Illinois's experience demonstrates that having transparency measures on the books does not necessarily translate to a satisfied public.
Some state statutes employ permissive transparency rules or rules that otherwise fall short of mandating transparency. For example, an Alabama statute instructs that its committee on reapportionment may hold public hearings. (34) Likewise, a Vermont statute permits that its legislative apportionment board (which proposes maps for state legislative districts to the legislature) has the power to hold public hearings. (35) A North Carolina statute explicitly provides that all documents prepared for redistricting are not confidential and become public records--but only once the plan becomes law, precluding meaningful public oversight or participation while plans are being formulated. (36)
A slight majority of state constitutional and statutory regimes (twenty-six) are silent on the topic of redistricting...