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Statement on the Voter Redistricting
September 24, 2001
This week, a Special Legislative Session will be held to approve voter redistricting plans based on
2000 Census data. Experts and politicians agree: redistricting is probably the most powerful
political maneuver available in our electoral system today, and it remains vulnerable to the designs
of the dominant political party.
The ACLU of Utah is not currently taking a position on the legality of the patently partisan
redistricting plans approved by Utah’s Legislative Redistricting Committee. Instead, we take this
opportunity to point out the fundamental fairness and constitutional issues raised by partisan
gerrymandering, and to outline several viable electoral alternatives now existing in other states
along with those proposed by legal and political scholars and politicians nationwide.
Fundamental Fairness and Constitutional Issues
The Equal Protection Clause of the Fourteenth Amendment requires the State to govern impartially.
“Election rules which serve no purpose other than to favor one segment ... or to disadvantage a
politically weak segment of the community violate the constitutional guarantee of equal protection.”
The U.S. Supreme Court has also stated: “unconstitutional discrimination occurs ... when the
electoral system is arranged in a manner that will consistently degrade a voter’s or a group of
voters’ influence on the political process as a whole.” Redrawing voting districts in a manner that
can only be justified by partisan considerations is political gerrymandering that interferes with the
right to vote, and is used by the legislature to dilute votes and influence the outcome of the
elections, thereby impairing the fundamental rights of citizens. Gerrymandering, by its very nature,
classifies people, whether by race, religion, or political affiliation and fails to aspire to any interest
higher than mere partisanship.
Viable Alternatives Resulting in Free and Fair Elections
Experts agree that redistricting rules are difficult to understand and follow; however, for the
Legislature to ensure institutional integrity, maintain the confidence of the citizens, increase voter
participation, and achieve the object of fundamental fairness, there are at least three viable
alternatives to partisan gerrymandering: 1) mandate the use of neutral criteria using political
subdivisions and natural boundaries when redrawing district lines; 2) use non-partisan commissions
to draw voting district boundaries; or 3) use alternative electoral schemes known as “proportional
The U.S. Supreme Court has stated that even if citizens establish a case of unconstitutional
gerrymandering, a state could “justify the discriminatory impact of the redistricting plan by showing
that the plan had a rational basis in permissible neutral criteria.” If the legislature’s redistricting
scheme was held to the traditional measures of compactness, use of political subdivisions, and
communities of interest, the result would more likely be districts that serve the voters fairly and
would also be easily drawn and manageable.
To obtain neutral divisions, political subdivisions, such as cities and counties should be used
first; then if these are too large, divisions can be determined by neutral criteria such as natural
boundaries marked by rivers, mountains, canals, highways, and major thoroughfares. Further
divisions could take into account bus routes, library districts, etc.
Such neutral criteria could not be manipulated for illegitimate reasons. This would enhance natural
communities, which have been formed by the conscious migration of individuals into areas of
people with common interests.
Another alternative is using “census blocks,” which provide larger, organic units. Census bureaus
draw census tracts to represent socially homogeneous populations; their borders also tend to be
easily recognizable natural or man-made features. Census tracts are neighborhoods defined by
actual shared interests.
This neutral criteria alternative has three important results: 1) creates a judicially manageable
standard (the state would have to justify a deviation); 2) meets the “compact,” “contiguous,” and
“community of interest” standards already in existence; and, 3) leaves redistricting in the hands of
the Legislature and allows it some flexibility.
Non-partisan commissions are currently used in several states. For example Arizona passed a
constitutional amendment to create a balanced citizen based Independent Redistricting
Commission. Their five member Appellate Court Appointments Commission reviewed 311
applications and nominated 25 candidates: 10 Republicans, 10 Democrats and 5 people not
registered with either party. This ensures non-partisan redistricting.
Independent commissions can also be given the neutral criteria of population equality, plus those
outlined above: contiguity, compactness, unity of counties and cities, and use of natural
The redistricting experiences of states that have adopted such commissions were exceptionally
smooth and plans were passed into law well before the other states.
The term “proportional” comes from the principle that any group of voters, as defined by their
cohesive voting behavior, should be able to elect representatives in proportion to their support in the
electorate (e.g., if a group earns 20% of the vote, that group or party wins 20% of the seats).
The U.S. Congress has before it four bills, and more than a dozen state legislatures are considering
legislation, regarding proportional voting and/or instant runoff voting. These electoral proposals are
designed to enhance the opportunity of voting minorities to win representation in accord with their
voting strength. This would ameliorate the “winner-take-all” aspect of traditional at large elections,
where up to 49.9% of voters may not elect a candidate of their choice. Much scholarly work is
available delineating standards that courts or legislatures can use to evaluate and choose between
these alternative electoral systems, which include preference voting, cumulative voting, limited
voting or instant runoff voting.
Proponents note that proportional representation has been used successfully in nearly every other
full-fledged democracy, including most of Europe; states could combine proportional representation
and “neutral criteria” representation; it is the only system that fully accommodates both majority
rule and minority representation; and it increases voter turnout and decreases cynicism and apathy
because a diversity of viewpoints is proportionally represented.
Short Term Remedy
Although the use of proportional voting or a non-partisan commission is highly advised, it will take
time to study and develop. More immediately, it would be entirely possible to hold off final approval
(by Special Session or by the Governor) of the existing redistricting plans and re-draw districts
using the neutral criteria standards. This would allow politicians to avoid lawsuits, regain the faith of
all of their constituents, and enhance the vitality of a multi-party electoral system in Utah.