For Election Reform, a Heartening Defeat

By SAM HIRSCH and THOMAS E. MANN - New York Times: "ON Tuesday, voters in California and Ohio defeated ballot initiatives to "reform" the way in which Congressional and state legislative districts are drawn. The California proposal, sponsored by Gov. Arnold Schwarzenegger and his Republican allies, lost 41 percent to 59 percent, while the Ohio initiative, sponsored by a coalition of groups generally aligned with the Democrats, was defeated by an even larger margin. While some commentators have portrayed the results as the death knell for districting reform, we believe that this conclusion is entirely unwarranted.

The problem with both the California and Ohio initiatives was not that voters don't want reform, it's that they perceived these two initiatives as partisan power grabs. And the voters were largely right.

The key to both initiatives - and to their defeat - was that they would have required a round of redistricting in the middle of this decade. Governor Schwarzenegger wanted state legislative lines redrawn immediately, undoubtedly hoping that he would no longer have to face a Legislature in which Democrats hold a nearly veto-proof majority. Indeed, he rejected a bipartisan compromise that would have deferred redistricting until after 2010. Similarly, the Democratic backers of the Ohio initiative wanted "re-redistricting" to be in effect for the 2008 elections, to seize full advantage of what is shaping up to be a strongly pro-Democratic election cycle.

With a lot of help from each initiative's partisan opponents, the voters detected these motives. In Ohio, the initiative ran strongest in the counties that had favored John Kerry in 2004, but was trounced, by a vote of 24 percent to 76 percent, in the counties that had favored George W. Bush. California presented the mirror image: the initiative ran strongest where Mr. Bush had won, but lost by 34 percent to 66 percent in the pro-Kerry counties.

Two lessons emerge. First, authentic redistricting reform is a long-term project. To borrow from the political philosopher John Rawls, redistricting reform must take place behind a "veil of ignorance" - that is, without anyone knowing in advance who will benefit. Any initiative requiring mid-decade redistricting smells like a power grab by the "out" party. District changes must be put off to a date well in the future - like 2011, after the next federal census.

Second, a redistricting initiative needs to have criteria that voters see as fair and enforceable; otherwise they will assume the proposal is just a Trojan horse for one political faction. California's Proposition 77 was based on the idea that gerrymandering could be cured simply by shifting the power to draw lines from the Legislature to a panel of retired judges, and then denying the panel access to empirical data on politics.

But voters rightly feared giving enormous discretionary power to a handful of unelected (and overwhelmingly elderly white male) former judges. And even if the judges on the new panel had been perfectly conscientious, the "data-free" method imposed on them by Proposition 77 could well have resulted in severe, albeit unintended, gerrymanders that would lead to the same sorts of lopsided, biased election results that reformers seek to eradicate.

A better way to reform the system is to constrain the line-drawers by forcing them to show that the map they adopt will not only comply with federal law (the "one person, one vote" rule and the Voting Rights Act) but will also minimize partisan bias and increase competitiveness. An unbiased districting plan would treat both parties roughly the same, relative to their statewide vote totals - not guaranteeing proportional representation, but creating a fair chance for both parties to convert a majority of votes into a majority of seats. And to increase competitiveness, redistricters should have to show (again, using recent election returns) that their plan creates a reasonable number of districts that are closely balanced between Democrats and Republicans.

The evils of gerrymandering cannot be cured simply by drawing districts that follow county or municipal boundaries, or by increasing the geometric compactness of district shapes, or even by transferring the power to redraw lines from politicians to an independent commission. Rather, it requires a careful effort to create districts that will be fair and competitive.

Tuesday's defeats do not mean that redistricting reform is dead. Those who would improve our elections simply need to come up with better proposals. The voters of California and Ohio have begun to show the way.

Sam Hirsch is a lawyer specializing in election law. Thomas E. Mann is a senior fellow at the Brookings Institution and a co-editor of "Party Lines: Competition, Partisanship and Congressional Redistricting."