A panel of federal judges gave Maryland until March 7 to fix what it ruled was an unconstitutional gerrymander. Specifically, it directed the General Assembly to promptly adopt an acceptable map.
If the legislature fails to do so, the panel will appoint an independent body to draw the map. Instead of drawing a map, the body should select among submitted maps — a good job for a redistricting jury.
The dilemma facing the panel is that legislators are ill-suited to redistrict because of their strong incentive to use the redistricting process to enhance their power; that is, to gerrymander. On the other hand, judges also aren’t well-suited: judicial selection is heavily influenced by partisan considerations, and the criterion for a good judge is legal expertise, not democratic accountability.
The threat to the judiciary’s institutional legitimacy when it directly decides political issues was famously illustrated in Bush vs. Gore, the U.S. Supreme Court case that determined the outcome of the 2000 presidential election. Florida and U.S. supreme court judges denied partisan motivation, but the public didn’t believe them. The U.S. Supreme Court still hasn’t recovered its legitimacy.
To preserve the judiciary’s legitimacy, the court should exercise its inherent power to convene a jury, which includes a redistricting jury. This jury would be limited to choosing among submitted redistricting maps. Consider one possible implementation:
The panel convenes a randomly selected jury broadly representative of registered voters; for example, 188 jurors stratified so that each of Maryland’s 47 senate districts is represented by two men and women, and the overall jury’s composition mirrors the partisan composition of registered voters.
To reduce cost and inconvenience, jurors remotely attend the redistricting trial via their local courthouse.
The court instructs the jury in redistricting law (e.g., district populations must be equally sized).
The jury selects among submitted maps, including maps submitted by the legislature, governor (e.g., the governor’s proposed redistricting commission), and others backed by at least one hundred petition signatures.
Each submitted map must include a copy of the algorithms—that is, the mathematical formulas—by which they were drawn.
The jury meets for a minimum of two days.
Advocates for each map make their case, including rebutting their opponents’ arguments. Jurors then deliberate and vote.
Any map chosen by a redistricting jury is subject to review by the U.S. and Maryland supreme courts.
Given how easy today’s redistricting software makes it to design professionally drawn maps with a few mouse clicks — e.g., clicking buttons to specify that districts should be equal, contiguous, and compact — jurors might need to find a simple way to choose among many submissions. One simplification could be to focus on the criteria used to draw each map rather than the details of the maps themselves.
Another could be to rely on one of the automated tests academics have developed to measure the degree to which a map is gerrymandered.
Would this result in the “perfect” map? No. But the relevant question is whether it would improve upon the status quo.
As an independent microcosm of the general public, a redistricting jury has more democratic legitimacy in selecting district maps than unelected judges and self-interested legislators. It may also be less expensive and faster than the current redistricting process, especially if implemented early in the process.
For example, Maryland’s government has already spent years and millions of dollars designing and litigating proposed maps. Given low-paid jurors and a speedy trial lasting only days, a redistricting jury could reduce costs.
A redistricting jury is the holy grail the judiciary has been seeking: a means to avoid entering the political thicket without giving carte blanche to a legislature’s gerrymanders.
The judiciary has always had this inherent power. By exercising it, judges could help restore both their own and legislators’ legitimacy.
Source: Snider, J.H., A jury should decide on Maryland’s next redistricting map, Capital, December 11, 2018.