By DONALD SCARINCI and MARK J. MAGYAR
Congressional redistricting in New Jersey 10 years ago was a game of “Mutual Assured Survival,” as Democrats and Republicans on the state’s Congressional Redistricting Commission reached a bipartisan agreement designed to protect incumbents and thus promote the state’s seniority in Washington in the decade that followed.
The success of that effort, which Republican counsel Bill Baroni touted at the time as “a great map for New Jersey, was demonstrated when not a single seat changed hands until 2008, when Democrat John Adler rode Obama’s coattails to win the 3rd District seat vacated by retiring GOP Congressman James Saxton. The success of the commission in drawing the 3rd as a Republican district was reaffirmed when Jon Runyan ousted Adler on November 2.
Success will not be measured the same way in the upcoming congressional redistricting round, when Census projections show that New Jersey is expected to lose one of its 13 U.S. House seats.
Congressional redistricting next year will be as hotly contested as legislative redistricting was in 2001, when Democrats succeeded in persuading the neutral tie-breaker appointed by the state’s Supreme Court chief justice to disperse thousands of minority voters from “majority minority” districts in North Jersey cities into neighboring suburban swing districts. These new “minority opportunity districts,” where Democrats argued that minority candidates could be elected to seats in districts with one senator and two Assembly members, produced Democratic legislative majorities that have stood for the past decade.
The legislative and congressional redistricting experience in New Jersey in 2001 underscores the reform nature of the bipartisan or nonpartisan redistricting commissions created in most of the 20 states whose experience we studied to assess the effectiveness of various commission formats and reform proposals for our forthcoming book, Redistricting and the Politics of Reform.
Created at a special New Jersey constitutional convention in 1966, New Jersey’s system of drawing districts through a bipartisan commission with a neutral tie-breaker recognizes the inherently partisan nature of redistricting in a two-party system while giving the final say to the public interest by giving the tie-breaking vote on the final plan to a public member, which has always been a university professor. In 2001, Rutgers University Professor Alan Rosenthal believed it was in the public interest to rebuild seniority in Congress, and Princeton University Professor Larry Bartels believed that packing minority voters into overwhelmingly majority districts represented a reverse racial gerrymandering that unfairly diluted their political power.
Bartels’ decision, which ran directly counter to two decades of rulings under the U.S. Voting Rights Act that required the creation of “majority minority” districts, was controversial and sharply criticized by New Jersey Republicans – which is a reminder that redistricting is the ultimate political process because it determines whether political careers continue or end.
While New Jersey and other states with redistricting commissions will not see the outrageous gerrymandering that is expected to prevail in the 35 states where state legislatures and governors, usually from the same party, draw the maps, our study of redistricting commissions shows that even the best-intentioned reforms can’t take the politics out of redistricting.
As Denver Post columnist Diane Carman put it in her assessment of Colorado’s 2001 redistricting, “Taking the partisanship out of politics is like trying to take the sex out of porn.”
Giving power to judges is no guarantee of nonpartisanship. In Colorado, the Democratic state Supreme Court chief justice named four Democrats to the “neutral ” seats on Colorado’s 11-member commission, giving Democrats control over the mapmaking in a state that had just voted Republican. In Pennsylvania, the retired judge who served as the neutral tie-breaker looked the other way while Democratic and Republican party bosses colluded in redrawing their legislative districts to gerrymander their party’s dissidents out of office.
Some states deliberately created bipartisan commissions with equal numbers of Democrats and Republicans and no tie-breakers in order to force bipartisan cooperation. That didn’t work very well either. Republican Dean Haagenson became known as “the most hated man in Idaho” when he voted with the three Democrats for a preliminary map that was fairer to voters in his northern Idaho region than the existing districts. Washington State’s Democratic and Republican delegations were so sharply split in their open public meetings that one Democrat and one Republican had to meet privately in Poodle Dog’s diner to work out a compromise away from the capital and the glare of the Sunshine Law.
Illinois legislators worried that their equally divided commission would be unable to reach a compromise so they inserted a “poison pill” they were sure would never be used. If the commission failed to reach a compromise, the winning legislative map would be drawn by lot. Surely, no one would want to risk such an outcome, right? Wrong. Illinois party leaders would rather gamble on a 50-50 chance to gerrymander outrageously than try to compromise on a fair map. In 2001, as in 1991 and 1981, Illinois determined its legislative map by lot, drawing the winning plan out of Abraham Lincoln’s stovepipe hat, which was brought to the Statehouse especially for that purpose.
Even the most well-intentioned reforms can be circumvented by politics or Voting Rights Act restrictions. When Iowa’s nonpartisan legislative services commission redistricted three out of five incumbent congressmen and 64 out of 150 incumbent legislators into new districts, the three congressmen and most of the legislators simply moved to new districts, and almost all of them won. Arizona’s vaunted citizens commission, which was designed to keep power out of the hands of the party bosses, wound up taking seven years to get a map through the courts because the competitive districts they created were challenged by Hispanic leaders who felt too few Hispanic-majority districts were being created – not to mention the Hopi tribe, who successfully objected to being thrown into a district with their ancestral enemy, the Navajo.
That doesn’t mean there aren’t commissions that are able to balance politics and the public interest.
Connecticut, which had to combine its six congressional districts into five in 2001, ultimately drew almost a perfectly competitive district for incumbents Nancy Johnson and James Maloney. The new map gave Maloney at 13,400-vote Democratic edge in registration, but gave the Republican Johnson a 55-45 edge in voters she had represented in her previous district. In the most expensive House race in the nation in 2002, Johnson ran the better campaign and ended up winning, partly because she carried her Democratic hometown of Bristol.
This latest “Connecticut Compromise” is a model for New Jersey and other states with redistricting commissions that face a loss of congressional seats. But even it wasn’t achieved until the final hours before a deadline set for the state Supreme Court to take over mapmaking from the deadlocked commission.
With the volatile politics that has roiled New Jersey for the past two years, you can expect New Jersey’s congressional and legislative redistricting commissions to go down to the wire before reaching a compromise that balances partisan and public interests.
This article is adapted from Redistricting and the Politics of Reform by Donald Scarinci and Mark J. Magyar, which is being published this week. Scarinci, founding partner of Scarinci and Hollenbeck in Lyndhurst, served as a Democratic counsel to both of New Jersey’s 2001 redistricting commissions. Magyar, who teaches labor studies at Rutgers University, served as policy director for independent Chris Daggett’s 2009 gubernatorial campaign. For further information, please email Mark Magyar at firstname.lastname@example.org