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Possible fixes to the N.J. redistricting amendment

December 16th, 2018, 10:24pm by Sam Wang

The redistricting amendment was withdrawn on Saturday. No vote Monday!

Leadership took a beating. Some of this beating was unfair, administered by reporters who see everything in terms of national partisan warfare. The true battle was between the Legislature and Governor Murphy. But the legislation also had defects. Now there’s breathing room to fix it.

To fix the amendment, we have a few ideas. Some were described in our December 5th analysis. Here’s an updated list:

1) Keep the partisan balance test.  In A.C.R. 205/S.C.R. 43, having half the districts be above-average and half below-average provides protection against partisanship in a 50-50 “purple” state. New Jersey isn’t purple now, but it could be someday. This rule is fine, and not nearly as bad as news reports have made it out to be. But it doesn’t cover the situation in 2021, when New Jersey will still be Democratic-leaning.

2) Drop all of the “competitiveness” language. Competitiveness tends to arise naturally when other criteria are dealt with honestly. So it’s better to give up mandating it in a law. The formula in the amendment is a mess anyway. The easiest move is to drop it entirely.

3) Add a provision prohibiting the drawing of a statewide plan that favors one party over the other. This could be a generally-worded provision. Perhaps better would be to specifically name known ways for detecting partisan advantage in a partisan-leaning state. In such a state, a dominant party entrenches its own advantage by engineering unusually uniform wins.

Possible text: modify the proposed text of A.C.R. 205 Article IV, Section III, paragraph 2(e) by adding a new sentence: “Notwithstanding any provision of this Article, no plan to establish legislative districts shall have the intent or effect of unduly favoring or disfavoring any political party on a statewide basis as measured using accepted measures of partisan fairness and excessively uniform wins.”

4) Make the Voting Rights Act’s section 2 a state-level right. At the federal level, this provision could be struck down by the Supreme Court in the near future. To protect voting rights in New Jersey, it would be great to add language to protect minority groups.

5) More public hearings and transparency. If deliberations have to be public, it’s much harder to commit an offense against a party or community. So mandating public hearings and making commissioners document their reasons for their choices would be very helpful.

If all of the above were done, the legislation would be pretty good. The two parties would have to propose plans that were somewhat closer to one another, which might encourage compromise. And minority rights would be protected.

Tags: Redistricting

4 Comments so far ↓

  • Pechmerle

    “using accepted measures” – in this new, unelaborated area of legislation, that phrase seems tailor-made to stimulate litigation over what are “accepted measures”

    • Sam Wang

      I like your suggestion. However, it is frowned upon to put specific formulas in a state constitution. Conditions can change!

      Also, that’s why the “excessively uniform wins” phrase is in there. I wrote about that in regard to Maryland in Election Law Journal. There’s an ancient textbook test for excess uniformity, the F-test. Not a euphemism, that’s its actual name. F stands for Ronald Fisher.

    • Sam Wang

      That’s a good reform, and one that is sweeping the nation. I like the retired-judges part – commissioner selection is a challenge.

      Usually commissions like this are passed by voters and not by legislators, who like to preserve their own power. However, there’s a good chance that Democrats will take full control of Virginia state government in 2021. Republicans have seen parts of their Congressional and legislative maps overturned in court on grounds of racial gerrymandering. So they might be relatively open to such a constitutional amendment to prevent the other side from doing what they did.

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