home > voting rights & elections Statement on the Voter Redistricting Process 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 voting.” Neutral Criteria 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 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 boundaries. The redistricting experiences of states that have adopted such commissions were exceptionally smooth and plans were passed into law well before the other states. Proportional Representation 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.

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