PENNSYLVANIA BAR ASSOCIATION CONSTITUTIONAL REVIEW COMMISSION LEGISLATIVE REAPPORTIONMENT COMMITTEE PUBLIC HEARING PHILADELPHIA, PA, MAY 4, 2011 TESTIMONY BY LORA LAVIN, VICE‐PRESIDENT FOR ISSUES AND ACTION LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA Thank you for this opportunity to present the views of the League of Women Voters of Pennsylvania on the very important issue of legislative reapportionment. The League is a nonpartisan organization whose mission is to promote informed public participation in government. The League also advocates on selected public policy issues after member study and consensus. The right to vote is fundamental to citizen participation in government that must be guaranteed. The League is dedicated to protecting that right and to removing unnecessary barriers to voting. But we also recognize that effective public participation depends on an open government system that is representative, accountable and responsive. The current redistricting system as practiced in Pennsylvania and many other states, is counterproductive to achieving this ideal. Indeed, the redistricting system often works against that most fundamental of citizen rights, the right to vote for a candidate of one’s choice. As is often said, the system is one in which the politicians select their voters rather than the other way around. This committee has been charged with examining the following issues: •
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Problems that occurred in past reapportionments. The specific problem or problems created by reapportionment by which individuals or organizations were injured or in which they have a particular interest. How problems can be cured by changing the Pennsylvania Constitution. How problems would be cured by adopting a non‐partisan reapportionment process. In this testimony I will combine these issues in to two topics: • Problems with the current system using graphic examples of gerrymandering for partisan and incumbent advantage and dilution of effective representation. • Proposals for reform. WHAT IS WRONG WITH THE CURRENT SYSTEM ‐ ‐ SOME GRAPHIC EXAMPLES As you know, we have two systems for redistricting in Pennsylvania ‐one for state legislature, and another for U.S. Congress. Because the legislative process is bipartisan – the system is theoretically fairer to both parties. However, it is not necessarily fair to voters. The Pennsylvania Constitution has two anti‐gerrymandering clauses. Article II, Section 16 says: ”The Commonwealth shall be divided into 50 Senatorial and 203 Representative districts which shall be composed of compact and contiguous territory as nearly equal in population as practicable.” Article II, Section 17 says: that “Unless absolutely necessary no county, city, incorporated town, borough, township or ward shall be divided in forming either a senatorial or representative district.” Unfortunately, there is nothing in the Constitution or state law that sets parameters for how these criteria are to be applied. Consequently they have been systematically ignored by the Legislative Redistricting Commission and the PA Supreme Court. Here are some examples. Graphic Example I – Protecting incumbents There is no better example of bipartisan cooperation to protect incumbents than the reconfiguration of Philadelphia House District 172. Party registration and voting history were used to select voters who would guarantee the reelection of a powerful Republican incumbent in a city that predominantly votes Democratic. Packing Republican voters in this way also helped make other districts safer for Democrats – a win‐win situation for both parties. The incumbent was eventually defeated in 2010, but only after being indicted in connection with the “bonusgate” scandal. Graphic Example II – Partisan Gerrymandering HD 161 – 1992 HD 161 ‐ 1992 The transformation of Delaware County HD 161 is a graphic example of minimizing the voting power of one party. This district includes all of only two municipalities, one predominantly Democratic, but only parts on nine other municipalities. It literally winds its way from Aston in the southern part of the county, to Radnor on the northern border with Montgomery County. In this gerrymander, Radnor was split into three separate House Districts. The map below showing HD 161 and neighboring HD 165 illustrates how both districts could easily have been made more compact. Graphic Example III – Cracking – Diluting the voting strength of a community. Monroe County (in the red rectangles) is split among 4 House Districts and 6 Senate Districts. The 6 Senate districts spill out into 11 nearby counties. Only 5 of the 11 share a boundary with Monroe. The Pocono Record claims that this gerrymander has cost the county millions in slots revenue sharing because of a clause inserted by the Senate in the bill legalizing casino gambling, that requires Monroe County to share its gambling revenue with adjacent counties. Not one of the six Senators lives in Monroe County. Graphic Example IV The plight of Philadelphia Ward 42 is another example of a community’s voting power being split. This ward, which is only about one square mile in size, is divided into five separate House districts, 179, 180, 181, 198 and 202. The red rectangle on the map below encloses an area that includes the approximate location of Ward 42. It shows how, with the exception of HD 180, the district boundaries were stretched out to achieve this feat. Not of the five representatives lives in Ward 42. The residents there feel they are without effective representation in the General Assembly. Example V (non‐graphic) ‐Punishing Dissidents The Leadership controlled commission can also utilize cracking to punish dissidents in their respective parties. Rank and file legislators are pressured to vote with the caucus rather than with their consciences. •
In 2001 the district of Pittsburgh Democrat Dave Mayernick was diced into seven other districts. His district, HD 29, was moved across state to Bucks County. •
Allegheny County Democrat Ralph Kaiser’s district was moved to Lancaster County leaving him to face another Democratic incumbent. •
Montgomery County Republican John Lawless’ district was split three ways. He decided to change parties but lost reelection anyway. Graphic example VI –Eliminating incumbents In Pennsylvania, Congressional redistricting is done through the regular legislative process. Thus, if one party controls both the General Assembly and the governorship, it has exclusive control over the shape of the congressional district map. In 2001, as is the case this year, the Republican Party controlled chambers of the PA Legislature and the governorship and thus had total control over congressional redistricting. Congressional District 12 in Allegheny County is an example of partisan Gerrymandering in which the district was reconfigured to put two Democratic incumbents (Murtha and Mascara) in the same district. 1991 2001 CD 12 is, by one measure of compactness, the 8th most gerrymandered congressional district in the country. Graphic Example VII. The 2001 Congressional Redistricting plan split 25 counties, 59 municipalities and 41 wards and was contested all the way to the U.S. Supreme Court. In this plan Montgomery County was split into six Congressional Districts. This gerrymander led to some bizarre configurations but none as strange as the section of Bucks County CD 8 that dips into Montgomery County and is only 8 feet wide at some points. Graphic Example VII – Importing Constituents Prison gerrymandering is an issue that gets little attention. In Pennsylvania, convicted prisoners cannot vote but the Census Bureau counts them as if they were residents of the community where they are housed even though they are legal residents of the places they lived before they were incarcerated. Prison gerrymandering artificially inflates the population basis for redistricting in the areas where the prisons are located. Also, because prisoners are mostly urban and minority, prison gerrymandering has the effect of diluting minority voting strength. WHY SHOULD WE CARE? In the legislative redistricting system: •
Power is concentrated in the hands of a few legislative leaders. •
The chair has no power in some cases. The four party leaders can collude to outvote the chair in order to protect the election prospects of their respective party’s candidates. •
The leaders can punish dissident members of their respective caucuses. Rank and file legislators are pressured to vote with the caucus rather than with their consciences. •
Loss of voting power. Even when you vote, you really lose your right to choose. •
Low voter turnout. If the outcome is predetermined, why vote? •
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Unresponsive representation. Politicians assured of reelection stop listening to their constituents. Ideological polarization By creating districts composed of mostly Democrats or mostly Republicans, legislators, need only listen to the views of the partisans who vote in the primaries. Legislators have a strong incentive to reflect the views of party extremes. The opportunity for bipartisan negotiation and compromise is diminished. PROPOSALS FOR REFORM In June, 2005 the Council for Excellence in Government and the Campaign Legal Center convened a conference on redistricting at the Airlie Center in Virginia. The conference brought together fifty individuals representing a broad array of backgrounds, organizations and political affiliations including the League of Women Voters of the U.S. After two days of discussion they agreed to a set of redistricting reform principles summarized as follows: Procedures for Redistricting •
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Assign the redistricting power to an independent commission.‐The use of an independent commission removes the redistricting process from legislators for whom it poses an inherent conflict of interest. Ensure transparency of the process and a meaningful opportunity for interested parties and for the public to participate effectively. Conduct redistricting once each decade, following the census with a strict timeline for completion. Standards for Redistricting (in rank order) 1.
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Adhere to all Constitutional and Voting Rights Act requirements. Promote competitiveness and partisan fairness Respect political subdivisions and communities of interest. Encourage geographical compactness and respect for natural geographical features and barriers. The conference report entitled “The Shape of Representative Democracy” contains a thorough discussion of the rationale behind these principles along with some caveats, concerns and objections. Particularly pertinent to the makeup of the Pennsylvania Legislative Reapportionment Commission and its impact as evidenced by the outcomes in the above graphic examples are these: •
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A bipartisan compromise commission, with equal numbers named by both parties, can easily become an incumbent protection plan under the guise of independence. Having a tie breaker on the panel give essentially total power to that individual and the ability to broker a deal with one side. On the other hand, the partisan members can collude to outvote the chair. A commission adds another layer between the process and direct voter accountability.” Many commission structures under discussion or in practice involve using state Supreme Court or other judges to name members to the commission. Rather than de‐politicizing the redistricting process, this may instead politicize the judiciaries. In 2008 the Pennsylvania League supported a proposed amendment to Article II, Section 17 of the PA Constitution that we believe met the Airlie principles and caveats. Under our proposal development of a redistricting plan would be taken out of the direct hands of legislators, but legislators would be put on record as approving or disapproving whatever plan is finally adopted. It would also provide clear guidelines for adherence to anti‐gerrymandering criteria to be used by the courts in ruling on any appeals. Our proposal would: •
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Assign congressional and legislative redistricting to a non‐partisan redistricting body using strict criteria for mapping, transparency and public input. Prohibit the use of data concerning voter registration and voter performance, as well as home addresses of legislators in drawing the districts. Assign responsibility for coordinating public input to a 5‐member temporary Redistricting Advisory Commission whose members may not be current office holders or related to or employed by members of Congress or the General Assembly. Set forth procedures for public input and plan adoption. 1. All Advisory Commission meetings would be publicly advertised and open to the public. 2. All external communications between the Bureau and the Commission and to or from the Commission and other persons are to be in written form and part of the public record. •
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3. All oral and written testimony and all data used in drafting a redistricting plan would be posted on the Internet and otherwise made available to the public as soon as it is available. 4. The Advisory Commission would conduct hearings before and after development of a preliminary redistricting plan. Based on public comment a revised redistricting plan would be sent to the General Assembly for approval under a rule prohibiting amendments. If the plan is approved by both Houses it becomes the adopted plan. If either or both Houses reject the plan it is sent back to the Bureau for revision with comments on why the plan was rejected. 5. If necessary, a final plan is presented to the General Assembly for consideration as above. 6. All legislators will be publicly on record regarding their approval or disapproval of a plan. 7. If the General Assembly fails to approve the final plan the revised and final plans are sent to the Secretary of State for selection by lot. Set clearly defined parameters for redistricting criteria 1. Compliance with federal law 2. Population equality, 3. Respect for political subdivisions 4. Strict rules for dividing political subdivisions more than once. 5. Assure that all parts of each district are contiguous. Districts joined at a single point shall not be considered contiguous. 6. Make districts as compact as possible consistent with above criteria. Limit redistricting to once per decade following the Federal census unless otherwise directed by court order. The bill (HB2420) had 95 cosponsors but never made it out of committee on time to take effect for 2011. Recognizing that many of the provisions of HB 2420 could be achieved without amending the Constitution the League proposed a legislative alternative to redistricting reform which we dubbed Plan B. Most of our recommendations were drafted into a bill sponsored by Rep. Babette Josephs which was introduced in the last session. That bill was reported unanimously out of the House State Government Committee but died in the House Appropriations Committee. Now that 2011 is upon us, the League is moving to Plan C which is to encourage voluntary compliance with our recommendations for transparency, public participation and adoption of well‐defined redistricting criteria before the process begins. We have been encouraged by the responsiveness of Senate Majority Leader Dominic Pileggi, to our proposals. We would welcome participation by the PA Bar in helping make the 2011 redistricting process more transparent than in the past and producing 1012 congressional and legislative district maps that put the interests of the voters first. The ultimate goal, of course, is to reform the process through an amendment to the PA Constitution. Interested parties should come together and agree on a proposed amendment early in this decade. Experience has shown that waiting until incumbent legislators will be impacted by the next redistricting will be too late. An Added note. In your review of redistricting please include examination of Article IX, Section 11 dealing with local reapportionment. It gives the local government body power to reapportion local representative districts where they exist after the Federal census “and at other times the governing body…..shall deem necessary…” This article opens local redistricting to the same kind of mischief as congressional and legislative redistricting with the added invitation to conduct mid‐decade redistricting for no other reason than partisan advantage.