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Judges Get Out of Redistricting? Establishing
the boundaries of a state’s congressional and legislative districts
is an inherently political undertaking.
The territory of a district may change drastically, stripping
the incumbent of a constituent base he or she labored to build.
Some incumbents find themselves pitted against one another
in the same district. Other districts are left without an incumbent,
opening the door to new candidates.
While the redistricting process may focus on demographics,
land use, and population changes, at its heart is the competition
for partisan political advantage. Conversely,
the heart of the Judiciary — especially in Minnesota, where judges
do not declare partisan affiliations — is political neutrality. To resolve individual cases appropriately, relying
on the facts, governing law, and equity, judges must remain disinterested
and neither influenced nor motivated by partisan objectives. In
addition, it is critical to the mission of the judicial system that
judges not only be fair, but also be perceived as fair.
Americans place their most important disputes in the hands
of the Judiciary; thus, litigants are entitled to confidence in the
impartiality and integrity of their decision makers. Judges must continually
confront the challenge of ensuring that the public recognizes decisions
as impartial, even where the results create clear winners or losers. Despite
the tension between the political nature of redistricting and judges’
need to be apolitical, judges are ever more frequently thrust into
redistricting battles. In 1962,
the United States Supreme Court dictated that decennial redistricting
must occur to ensure that every citizen’s vote is of equal weight.1
Because legislatures frequently are unwilling or unable to
complete redistricting by the statutory deadline, and because Minnesota
law provides no alternative redistricting method, Minnesota state
or federal courts have generally been responsible for redistricting
since Baker v. Carr was decided. Mixing Judges and Redistricting When
redistricting lands in the courts, judges find themselves in the center
of that political maelstrom.2 And
when judges are asked to actually draw district maps, centrally political
questions are put to them: Should incumbents be protected or paired?
Should the gender or race of an incumbent be a factor in drawing a
district line? Are past voting patterns relevant to redistricting
maps? Although such questions
may not be partisan, they are definitively political. Moreover,
redistricting judges must consider not only substantive political
questions, but also the perception question.
In a battle involving two or three political parties, each
party is highly motivated to decry the judges’ “partisanship” if the
end product appears tilted toward any one party.
For example, if more incumbents of one party are paired, the
map will appear to be biased against that party regardless of underlying
considerations or other political measurements.
Given the principal need to preserve the integrity of the judicial
system, judges must be mindful of these political issues.3
But nonpartisan judges will focus on nonpolitical, objective
criteria that the Legislature — an inherently political body with
primacy in the redistricting process 4 — might not find so compelling. Also
of concern is the judicial redistricting process itself. When it appears that the Legislature may not
complete redistricting by the statutory deadline, individuals or political
parties invest thousands of dollars in a lawsuit theoretically intended
to ensure the problem is resolved.
But redistricting lawsuits are unlike many others: no party
is injured when the election is still months away.
Nor is the central question whether a remedy (redistricting)
is required; the focus is the map-making.
Drawing
redistricting maps is a time-consuming, computer-based, detail-oriented
process not particularly suited to courts with limited resources. Nor was it originally intended for the judicial
system. And despite the parties’
well-conceived input, nonpartisan judges are unlikely to wholly adopt
a map proposed by a partisan group; doing so would only invite the
opinion that the judges were politically biased, regardless of the
merits of the underlying proposal. The
five judges on the 2001-2002 Minnesota Redistricting Panel faced all
these issues, fully aware of the enormity of their assigned task. Such was the political interest in the Panel’s
redistricting activities that the parties invested hundreds of thousands
of dollars in a lawsuit to compel redistricting and then propose redistricting
maps.5 The parties suggested
a variety of criteria to govern the Panel’s process, from “political
competitiveness” designed to open the process to new candidates by
increased pairing of incumbents, to protecting incumbents’ territory
and constituencies by emphasizing preservation of prior district cores. When the Panel conducted three days of public
hearings around the state, legislative staff members literally followed. Members of the media protested their exclusion
from the “political” process when the judges conducted their standard
private conferences. And the
March 19, 2002, release of redistricting maps undoubtedly (and understandably)
consumed Minnesota legislators and members of Congress for a time.5 Alternatives
to the Political Thicket Given
this political intrigue so ill-suited to the judicial system, it could
be argued that judges should not be involved in redistricting at all. But this is unlikely, in light of the United
States Supreme Court dictate that failure to redistrict following
each U.S. Census runs afoul of the Equal Protection Clause.7 And even when the Legislature completes timely
redistricting, the Voting Rights Act and Equal Protection Clause subject
overly partisan, discriminatory, or otherwise gerrymandered redistricting
plans to legal challenges. In
those cases, neutral judges are needed to sort out the constitutional
and statutory rights involved. But
is it necessary or appropriate for judges to draw redistricting plans
in the first place? As things
stood in Minnesota in 2001 and 2002, yes.
The Legislature did not pass a plan by the March 19, 2002,
statutory deadline,8 and state laws offered no alternative but to
institute a lawsuit to instigate redistricting.
Indeed, that is how the process has worked in Minnesota for
decades and, absent change, will continue to operate.9 The
Minnesota approach is not necessarily how the process works in other
states. Arizona, Hawaii, Idaho,
Montana, New Jersey and Washington all utilize redistricting commissions,
generally appointed by politicians from the various parties to draw
and choose redistricting plans. Indiana
employs a “fallback” commission if the Legislature fails to pass a
congressional plan by the end of the legislative session.
The Legislature is assigned the job in Iowa, but without regard
to any political criteria.
And some states employ a redistricting commission to recommend
plans to the Legislature, which is then charged with selecting and
enacting final plans.10 What
Might Minnesota Do? Consideration
of alternative processes may be appropriate for Minnesota. One change might involve the Legislature expanding
the current statutory redistricting criteria, directing judges to
apply or reject particular criteria as the Legislature sees fit. In this way, the Legislature would maintain
its primacy in redistricting even when judges draw the maps, and judges
would consider political criteria only if the Legislature demanded
it. But
despite the benefit of removing some initial political decisions from
judges’ hands, this approach would likely do more harm than good. Judges lacking control over redistricting criteria
could find themselves further involved in a morass of purely political
concerns. Requiring judges
to pore over prior election results or the seniority of incumbents
does not solve the problem. Nor
does it change the fact that a lawsuit may be necessary to trigger
redistricting, thereby directly involving political parties from the
beginning. Another
option might be establishment of a legislative commission. Each major political party in Minnesota could
appoint one or two members of a commission charged with drafting and
selecting congressional and legislative redistricting plans. If an even number of members was appointed,
those persons could jointly choose one additional member to avoid
a stalemate. Of
course the major question regarding this approach is whether such
a commission could ever be separated from the Legislature, the Legislature’s
incomparable redistricting resources, or the members’ political affiliations. Given politicians’ keen personal stake in redistricting,
it is unlikely that a legislative commission could function free of
legislative involvement. And
it is questionable whether such a commission could succeed where legislatures
frequently do not.11 Perhaps
the most viable option is a variation on the current system. The Legislature could abandon the fiction of
a lawsuit and enact a state law directing the chief justice of the
Minnesota Supreme Court to appoint a five-judge panel by a particular
date if the Legislature fails to adopt a redistricting plan. State funds would be allotted, and map-drawing
input would come from expanded public hearings, public commentary,
and perhaps special masters — not from political parties or litigants. Criteria would be derived from case precedent,
statutory directives, and present scholarship on redistricting, with
population as the touchstone. In
this scenario, decisions would be made without reference to political
outcomes, except to the extent necessary to render a fair and balanced
map. Politics would therefore be removed as much
as possible. And the costly
lawsuit that historically initiates and drives redistricting would
be obviated. This process would have many of the benefits
of the successful 2001-2002 process,12 and maybe remove some of the
drawbacks. This
proposal does not, however, separate Minnesota judges from redistricting. But perhaps this is for the best. To be accomplished at all (at least where Minnesota’s
political parties have relatively equal strength), redistricting may
require the neutral, apolitical, consensus-building approach embraced
by the Judiciary. In any case,
judges will always be involved to the extent necessary to protect
the constitutional “one person, one vote” standard. Ultimately,
of course, redistricting cannot be depoliticized unless the persons
involved are not themselves political.
Thus, the persons selected to complete the process are critical. But at bottom, a judge’s “constituency” tends
to be much broader than a politician’s.
And the 2001-2002 process demonstrated that redistricting seems
to work when carried out by persons whose agenda differs from politicians’
— i.e., a judge’s concern is public faith in the Judiciary
rather than partisan gain. Any
new redistricting proposal requires more investigation and consideration
than this limited space allows. But
a serious discussion of alternatives should begin now.
The next decennial will arrive before we know it. NOTES 2
See Bill Salisbury, “New year holds fun for politicophiles,” St. Paul
Pioneer Press (01/06/02). 3
Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (noting that a “politically
mindless” approach to redistricting “may produce, whether intended
or not, the most grossly gerrymandered results”). 4
See Growe v. Emison, 507 U.S. 25, 34 (1993) (“[R]eapportionment is
primarily the duty and responsibility of the State through its legislative
or other body[.]”) (quoting Chapman v. Meyer, 420 U.S. 1 (1975));
see also White v. Weiser, 412 U.S. 783, 794-95 (1973)) (“Reapportionment
is primarily a matter for legislative consideration and determination[.]”). 5
Not surprisingly, some of these maps came straight from partisan proposals
submitted to the State Senate and House of Representatives. “All sides tell court panel why their political
map is best,” Minneapolis Star Tribune (01/16/02) (“Redistricting
is a highly political, once-a-decade effort to redraw congressional
and legislative boundaries so they contain roughly an equal number
of people based on the latest census numbers.”). 6
See “Legislative Notebook,” Minneapolis Star Tribune (03/10/02) (“The
court announced last week that the maps would be posted on a Web site
at 1 p.m. [on March 19, 2002]. Don’t
even try to make an appointment with a legislator at that time.
Where the lines are drawn can mean life or death to political
careers.”). 7
Baker v. Carr, 369 U.S. 186 (1962) (holding that the “one person,
one vote” criterion is violated when one state or federal representative
represents a larger number of persons than another; such disparities
dilute the power of the votes in the larger districts, thereby undermining
each person’s right to Equal Protection of laws). 8
Minn. Stat. §204B.14, subd. 1a (2000). 9
See, e.g., Beens v. Erdahl, 349 F. Supp. 97 (D. Minn. 1972); LaComb
v. Growe, 541 F. Supp. 160 (D. Minn. 1982); Growe v. Emison, 507 U.S.
25 (1993). 10
For an excellent chart of different states’ alternatives to redistricting
by the legislature, see the National Conference of State Legislatures’
website on redistricting, at http://www.ncsl.org/programs/legman/redistrict/com&alter.htm. 11
See National Conference on State Legislatures’ website, supra note
11 (noting that the success of redistricting commissions has been
mixed). 12
The Panel’s 2002 redistricting maps were generally lauded and not
appealed or otherwise challenged.
See, e.g., Dane Smith, “Minnesota rejiggered, politically,”
Minneapolis Star Tribune (Mar. 20, 2003) (“All three [political] parties
pronounced the judicial panel’s plan ‘fair,’ at least at first look,
and not likely to be challenged.”); Bill Salisbury, “Suburbanites
gain new political clout,” St. Paul Pioneer Press (03/20/02); “Editorial:
Redistricting did what had to be done,” The Albert Lea Tribune
(03/20/02); “Judges are nonpartisan,” Rochester Post-Bulletin (03/25/02). HON.
THOMAS KALITOWSKI is a judge on the Minnesota Court of Appeals. He served as one of five judges on the 2001-2002
Minnesota Special Redistricting Panel. ELIZABETH
M. BRAMA is an attorney with the law firm of Briggs and Morgan,
P.A. She previously served as legal counsel to the
2001-2002 Minnesota Special Redistricting Panel. |
