California Gov. Arnold Schwarzenegger used his recent State of the State address to criticize current redistricting practices and to recommend reform of the way congressional and state legislative districts are drawn following each census. Schwarzenegger’s diagnosis of the problem is accurate even if his reform prescription is imperfect.
The word election implies choice, competition, and the possibility of both success and failure. Today, American representative government clearly suffers from the handicap of a serious lack of competition and meaningful choice. Those who hold political office enjoy tremendous, largely self‐bestowed, advantages in electoral competitions.
Unlike most democracies, we place the power to shape political districts in the hands of politicians rather than an independent commission. Redistricting has evolved into the electoral instrument that best serves to protect and strengthen incumbency advantage. Redistricting creates winners and losers and, in the process of doing so, has degenerated into almost a conspiracy against competitive elections, undermining the fundamental notion of representation and placing the health of American democracy at risk.
Schwarzenegger rightly bemoans the fact that last November not one of the 53 seats in California’s congressional delegation, and not one of the state’s 100 legislative seats, switched from Republican to Democrat or vice‐versa. Nationally, the lack of electoral competition is staggering.
In 2004, only 13 of 435 congressional seats changed from one party to another. The reelection rate for House incumbents was over 98 percent. Nine in 10 Americans live in districts where the outcome is so certain that their votes are irrelevant. Hence, Schwarzenegger’s stinging retort, “What kind of a democracy is that?”
This is not the outcome our constitutional framers intended. Article I outlines how the House is designed to be the legislative body most responsive to public opinion. According to The Federalist Papers, the House was viewed as a “numerous and changeable body” reflecting the shifting popular will. The decline in competitiveness is grossly inhibiting the extent to which the contemporary House serves this function of democratic responsiveness.
There are no easy solutions to the redistricting mess. Nevertheless, removing politicians’ control over redistricting can help to lessen the problem. Schwarzenegger’s remedy takes away the power to draw state and congressional boundaries from politicians and gives it to an independent panel of retired judges.
Placing judges rather than politicians in charge may improve the redistricting outcome but it does not guarantee more elections that are competitive. Judges are inherently unpredictable creatures. Individually or collectively, they may tend to favor Republicans or Democrats, or neither party at all.
Nevertheless, California’s recent experience with judge‐based redistricting was fairly positive. In 1991, following a political impasse, the judiciary was forced to redraw the state’s legislative districts and generally produced more competitive districts than existed previously or since.
There are other reform instruments that could also inject a modicum of competition into the body politic. For example, in Iowa, state law prioritizes competitiveness in redistricting and assigns redistricting to a nonpartisan professional body.
Four out of Iowa’s five congressional districts were potentially competitive in 2002, the first election after redistricting, a far higher degree of competition than existed in other states. This professionalized approach may demonstrate that politics can be largely, if not entirely, removed from the redistricting process.
From coast to coast, most politicians are unwilling to contemplate such reform. Senate leader Don Perata (D‐Oakland) says redistricting reform is unnecessary in California, as bipartisan legislative support exists for the status quo. Given that the status quo guarantees a favorable electoral outcome for both parties’ incumbents, Perata’s view is not surprising.
The most viable reform path may be via the initiative process. In recent years, public concern over increasingly uncompetitive elections led Arizonans to approve the creation of an independent redistricting commission. Last week, Schwarzenegger challenged the state legislature to act swiftly on his recommendation for reform. If they fail to do so, he will ask California voters to approve his reform plan in a ballot initiative this fall.
Historically, redistricting reform has not been a California ballot winner. Most voters are cautious and vote no on such questions. However, Schwarzenegger’s demonstrated influence in initiative races may make the difference next time.
Today, redistricting reform is essential. Over two centuries ago, James Madison warned that no democratic institution should decide the rules of its own membership. It used to be that, in an election, the voters chose the politicians. Now, the politicians choose the voters. There will not be an improvement in political competition until the incumbent fox is removed from his guardianship of the democratic henhouse.