News Center

April 6th, 2011

Questions Raised About Legality of First Redistricting Plan

Jim Davis, a retired executive of Deere & Company from Davenport, has filed an extensive report on the current redistricting plan that the Legislative Services Agency proposed last week.  Davis claims that the LSA selectively applies the redistricting standards, which undermine the legitimacy of the redistricting process.

Davis’ plan is very well thought out and deserves discussion.  Below are some selected portions of Davis’ “Congressional Redistricting in Iowa: Comments in Opposition to the First Redistricting Plan of 2011.”

REPORT_CongressionalRedistrictingInIowa. (Full Plan PDF)

April 6, 2011

Maggie Tinsman
Chairperson
Temporary Redistricting Advisory Commission
1007 East Grand Avenue, Suite 303
Des Moines, IA 50319-0003

Dear Chairperson Tinsman:

As you may recall, I attended the Temporary Redistricting Advisory Commission’s public hearing regarding the first redistricting plan prepared by the Legislative Services Agency in Bettendorf on Tuesday, April 5, 2011. While I had hoped to communicate some of the concerns set forth in the following report entitled, “Congressional Redistricting in Iowa: Comments in Opposition to the First Redistricting Plan of 2011,” it has taken until this evening to complete the document with the assistance of an attorney with extensive expertise into the areas of election law, constitutional law, and Iowa’s redistricting process.

Today, I am respectfully submitting this report pursuant to Chapter 42 of the Iowa Code for consideration by the Temporary Redistricting Advisory Commission, the Legislative Services Agency, and the Iowa legislature. Due to statutory deadlines associated with public input, as well as the Commission’s own deadlines, this report was prepared under severe time constraints and, by necessity, is limited in scope to congressional districts.

For reasons set forth herein, particularly due to the failure of the Legislative Services Agency to adhere to the laws of the state of Iowa in establishing congressional districts, it is recommended that the first redistricting plan of 2011 be rejected in favor of an improved plan that will foster greater public confidence Iowa’s congressional redistricting process and foster a greater sense of fairness and equity in Iowa’s federal representation. Furthermore, I respectfully request that this report be appended to the Commission’s official report to the Iowa legislature pursuant to Chapter 42.6 of the Iowa Code.

Please accept my gratitude for the hard work, dedication, and non-partisan service of your Commission, and I hope this report may contribute some value to the important work of your Commission, the Legislative Services Agency, and the Iowa legislature.

Sincerely,

Jim Davis

A. The Iowa legislature must closely monitor and oversee the work of the Legislative Services Agency to ensure that it is performing its functions consistent with the laws passed by the people’s elected representatives.

For over 30 years, the state of Iowa has utilized a congressional redistricting model that is notable because, among other things, the Iowa legislature has voluntarily delegated its own legal authority to formulate, though not decide, congressional redistricting plans to the LSA, a non-partisan and independent agency that operates outside the pressures and responsibilities of the political process. Proponents have argued that the independent nature of the LSA allows congressional districts to be established with minimal manipulation of the redistricting process by politicians for electoral advantage, and the Iowa experience appears to have largely validated this argument.

At the same time, delegating authority to an independent panel is not without risks, which should be acknowledged and managed by the people’s elected representatives in the Iowa legislature. It should be recalled, after all, that there is a name for the political process that the LSA is isolated from – it is called democracy. And however ‘dirty’ one may perceive the process to be, democracy is the very means by which the people of Iowa govern themselves and hold their government accountable. Independent panels like the LSA are, in a sense, exceptions to the democratic process. This, in turn, places an even greater responsibility on the Iowa legislature, as representatives of the people of Iowa, to closely monitor and oversee the work of the LSA to ensure the agency is performing the limited functions that have been assigned to it in a manner that is consistent with democratic theory and the laws that have been adopted by their elected representatives.

B. The Legislative Services Agency has established a pattern of selectively applying redistricting standards which undermines the legitimacy of the redistricting process.

The central function of the LSA, as it pertains to congressional redistricting in Iowa, is to formulate congressional redistricting plans based on the constitutional and statutory standards that have been adopted by Iowa’s elected representatives.[1] Since 1980, these standards have included: (1) population equality, (2) contiguousness, (3) whole counties, (4) convenience, and (5) compactness.[2]

By law, each of these standards must be used to establish congressional districts, without exception, and the legislature has not vested the LSA with discretionary authority to selectively apply these standards. Even if one of Iowa’s current redistricting standards were unable to withstand court scrutiny – and there is no indication, based on federal case law, that such a scenario is possible – it would not be the proper role of the LSA to interpret case law on its own accord and attempt to modify democratically enacted standards; instead, it is the job of the legislature, directly accountable to the people of Iowa, to modify standards in accordance with court decisions if the need arises.

Since Iowa’s redistricting standards were established in 1980, however, the LSA has failed to consistently consider and apply each of these standards and has, instead, established a pattern of selectively applying standards using discretionary authority it does not maintain. In some years, the LSA has failed to analyze legally mandated redistricting standards at all. For example, in each of the three plans submitted in 1981, the LSA failed to analyze the convenience standard. In 1991, the LSA failed to analyze the compactness standard and although it allegedly considered the convenience standard, it failed to provide any information or analysis by which the legislature or the public could evaluate the application of the standard. In its first plan in 2001, the LSA again failed to analyze the convenience standard and when the legislature implored it to do so in its second plan, as explained in further detail elsewhere in this report, the LSA adopted an erroneous interpretation of the convenience standard, as well as an erroneous metric by which to measure its erroneous interpretation.

This pattern has continued in the 2011 plan currently under consideration. In a section entitled “Selection Standards for Congressional Districts,” the LSA has ‘selected’ only two out of the five legally mandated redistricting standards to formulate the proposed congressional districts, including ‘population equality’ and ‘respect for political subdivisions’ – the latter of which applies not to congressional districts (congressional districts are required under the Iowa Constitution to simply consist of whole counties), but instead applies to legislative districts. Most importantly, however, the ‘selection standards’ chosen by the LSA exclude from the LSA’s considerations the contiguousness, convenience, and compactness standards, in direct contravention of Iowa law.

But even when the LSA has applied legally mandated standards, it has used different metrics by which to measure the same standard – not only over time, but occasionally in the very same year. For example, in measuring population equality in 1981, the LSA used absolute mean deviation in the first plan, but abandoned it in the second and third plans submitted in 1981, only to return to it again in 1991. Similarly, in 1981, the LSA used three separate metrics by which to judge compactness, including total length-width compactness, average length-width compactness ratio, and average population dispersion compactness. But by 1991, the LSA had abandoned all three of these metrics in favor of no metric.

Based on the foregoing, the LSA has clearly exercised discretionary authority that has not been delegated by the Iowa legislature and in a manner that undermines the credibility of the congressional redistricting process in Iowa. It is recommended, therefore, that the Iowa legislature provide more effective oversight of the LSA regarding the consistent application of redistricting standards that have been democratically adopted by the people’s representatives of Iowa. In addition, it is recommended that the legislature instruct the LSA to analyze each redistricting standard as set forth in Iowa law and provide sufficient information by which the legislature and the general public can evaluate the application of such standards.

C. The Legislative Services Agency has failed to adhere to the redistricting standards  set forth in the Iowa Constitution and Iowa Code in establishing the 2011 congressional redistricting map.

In addition to selectively applying congressional redistricting standards, the LSA has simply failed to adhere all five standards set forth in the Iowa Constitution and the Iowa Code. By law, five standards must be used to establish congressional districts, including population equality, contiguousness, whole counties, convenience, and compactness.[3] But, as stated above, when the LSA submitted the first congressional map of 2011, it only selected ‘population equality’ and ‘respect for political subdivisions’ as standards for establishing congressional districts. The end result is that that LSA has failed to adhere to Iowa law when it submitted the 2011 congressional redistricting map. It is recommended, therefore, that the Iowa legislature instruct the LSA to analyze each redistricting standard set forth in law and to provide sufficient information by which the legislature and the general public can evaluate the application of such standards.

D. The Legislative Services Agency has adopted an erroneous interpretation of the convenience standard under Chapter 42.4 of the Iowa Code.

Pursuant to Chapter 42.4 of the Iowa Code, “[d]istricts shall be composed of convenient contiguous territory.”[4] At the time this language was adopted, in 1980, district territory was already required to be contiguous pursuant to a 1968 amendment to the Iowa Constitution,[5] but territory was not required to be convenient. Consequently, it is logical to conclude that the import of Chapter 42.4 was to supplement the existing requirement of contiguous territory with the additional substantive requirement that territory be convenient. This convenience requirement has remained unaltered in statute for three decades, constituting a longstanding legislative objective for congressional redistricting in Iowa.

Unlike other standards set forth in Iowa’s redistricting statute, however, the convenience standard was not further defined in statute. For example, the statute further defined the contiguous standard by stating, “[a]reas which meet only at the points of adjoining corners are not contiguous.”[6] Similarly, and more recently, the compactness standard is now accompanied by not only a description of compact districts (“square, rectangular, or hexagonal in shape, and not irregularly shaped, to the extent permitted by natural or political boundaries”), but specific metrics have also been explicitly established to compare the compactness of two or more districts or plans. These two metrics include length-width compactness (“the absolute value of the difference between the length and the width of the district”) and perimeter compactness (“the distance needed to traverse the perimeter boundary of a district is as short as possible”).

Despite Iowa’s longstanding legislative objective of pursuing ‘convenient contiguous territory’ for congressional districts, however, the LSA failed to expressly apply or address this standard in the first five congressional redistricting plans it submitted from 1981 through 2001, in contravention of the Iowa Code. It was not until the Iowa legislature rejected the LSA’s first plan in 2001 and explicitly directed the LSA to “better reflect the convenient, contiguous territory of our state” in the second plan that the LSA finally addressed the convenience standard in one of its reports.

In response to the legislature’s 2001 instruction to address the convenient standard, the LSA acknowledged in its second report that, from 1991 through 2001, it had interpreted the convenience standard to mean that redistricting plans must not contain “irregularly shaped districts, districts with narrow connections, and districts that are excessively long from north to south or from east to west.” But these considerations apply not to the convenience standard, but to the compactness standard, an entirely different standard with its own requirements that must be met under the Iowa Code.[7] For example, the LSA stated in its report that it had interpreted the convenience standard to forbid “irregularly shaped” districts. Yet, pursuant to Chapter 42.4(3) of the Iowa Code, that is the very definition of a compact district, not a convenient district.

Not only did the LSA adopt an erroneous interpretation of the convenience standard, it simultaneously adopted an erroneous metric by which to measure its erroneous interpretation. In its second report of 2001, the LSA inserted a conclusory statement, without rationale or analytical support, that it had “determined that an objective means for comparing [the convenience of] possible plans would be to compare the total number of miles needed to traverse the perimeters of all of the districts in a plan.” The LSA referred to this metric as a ‘total perimeter score.’

But just as its interpretation of the convenience standard adopted the meaning of compactness under the Iowa Code, so too did its metric draw upon one of the statutory metrics required to measure compactness, not convenience. For example, pursuant to Chapter 42.4(4) of the Iowa Code, the compactness of districts or plans is required to be measured using a ‘perimeter compactness’ test which states that, “[t]he compactness of a district is greatest when the distance needed to traverse the perimeter boundary of a district is as short as possible.”[8] In short, the ‘total perimeter score,’ which is being used by the LSA to measure the convenience of all districts within a plan, is the sum of the ‘perimeter compactness’ tests used to measure compactness for individual districts.

When the LSA submitted its first plan in 2011, currently being considered by the Iowa legislature, it included a statistical summary of the standards used by the LSA to formulate congressional districts. Within this statistical summary the LSA included the ‘total perimeter score,’ presumably for the purpose of measuring convenience. If so, it is apparent that the LSA has again adopted an erroneous interpretation and metric for convenience. If not, the LSA has once again failed to properly address or analyze the convenience standard as required by Iowa law.

Furthermore, pursuant to Chapter 42.4(3) of the Iowa Code, the convenience standard applies to individual districts, not “all of the districts in a plan” as the total perimeter score purports to measure.

Moreover, there is no logical relationship between the convenience standard and the total perimeter score, i.e., the distance needed to traverse the perimeters of districts. By utilizing the total perimeter score to measure convenience, the LSA would have Iowans believe that the convenience of an individual district can be determined not only by traveling around it, but by traveling around all districts in a plan. But people do not travel around districts (let alone all districts), they travel through districts. A prospective home owner would not judge the convenience of a home by walking around the property, so why would the convenience of a congressional district be judged in such a way?

Based on the foregoing, it is clear that the LSA has adopted an erroneous interpretation of the convenience standard under Chapter 42.4(3) of the Iowa Code, and the LSA has adopted an erroneous metric by which to judge its erroneous interpretation. It is recommended, therefore, that the Iowa legislature instruct the LSA on the proper meaning of the convenience standard and insist upon the faithful application of the law as written.

E. The Legislative Services Agency has adopted other erroneous legal interpretations of state and federal law.

In 1981, the LSA asserted that, “[w]hile population equality is the overriding and highest standard considered in congressional plans, the remaining standards of Chapter 42 cannot be completely ignored in establishing congressional districts.” This legal interpretation rests on the erroneous assumption, however, that the Iowa legislature – the democratic body that is constitutionally empowered to determine the standards which the LSA is required to apply – has prioritized population equality above other redistricting standards.[9] This is simply incorrect.

Chapter 42.4 of the Iowa Code makes no distinction between the relative importance of redistricting standards. Just as the statute states that congressional districts “shall each have a population as nearly equal as practicable to the ideal district population,” it similarly states that congressional districts “shall be composed of convenient contiguous territory” and “shall be reasonably compact.” The arguable exception to this involves the compactness standard which, unlike other statutory standards, is accompanied by a clause that states it should be “consistent” with other standards. But to be ‘consistent’ is different from being ‘subordinate.’ And if any standards were found to take priority, it would be more logical to conclude that they would be the contiguousness and whole county standards because they were established not by mere statute, but they are enshrined in the Iowa Constitution.

In its second report of 2001, the LSA also concluded that “the requirements of the United States Constitution mandate that a second proposed Congressional redistricting plan must have equal or lower population deviations than the first plan submitted.” But the LSA provided no legal citation to justify this legal conclusion and it is, in fact, contrary to the holdings of the U.S. Supreme Court. In short, the U.S. Supreme Court has never held that subsequent plans must contain lower population deviations and, to the contrary, it has acknowledged that congressional redistricting plans can contain avoidable population deviations if the state proves that the avoidable variances “were necessary to achieve some legitimate state objective.”[10] The state of Iowa has codified several state objectives that could legitimately justify avoidable population variances, including contiguousness, whole counties, convenience, and compactness.

These erroneous legal interpretations are relevant to the current plan under consideration because they are, or could, impact not only the remainder of the 2011 congressional redistricting process, but future redistricting processes. It is imperative that the LSA exercise its limited authority in a manner that is consistent with the laws democratically adopted by Iowa’s elected representatives and it is the legal obligation of the LSA to properly account for the legitimate objectives of the state of Iowa in formulating congressional redistricting plans. It is recommended, therefore, that the Iowa legislature instruct the LSA to apply the congressional redistricting standards as adopted by Iowa’s elected officials and correct the LSA’s prior misinterpretations of state and federal law.

III. Recommendations

A. The Iowa legislature should reject the first congressional redistricting plan in favor of a plan that will foster greater public confidence in Iowa’s congressional redistricting process and a greater sense of fairness and equity in Iowa’s federal representation.

B. The Iowa legislature should provide more effective oversight of the LSA regarding the consistent application of congressional redistricting standards.

C. The Iowa legislature should instruct the LSA to analyze each redistricting standard set forth in Iowa law and to provide sufficient information by which the legislature and the general public can evaluate the application of such standards.

D. The Iowa legislature should instruct the LSA on the proper meaning of the convenience standard and insist upon the faithful application of the standard as written.

E. The Iowa legislature should instruct the LSA to apply the congressional redistricting standards as adopted by Iowa’s elected officials and correct the LSA’s prior misinterpretations of state and federal law.

F. The citizens of Iowa should insist that the Iowa legislature approve a congressional redistricting plan that adheres to Iowa law, and they should begin to explore alternative options if the legislature fails to do so.


[1] See Iowa Code §§ 42.2-42.4.

[2] See Iowa Const. Art. III, § 37; Iowa Code §§ 42.4.

[3] See Iowa Const. Art. III, § 37; Iowa Code § 42.4.

[4] Iowa Code § 42.4(3) (emphasis added).

[5] Iowa Const. Art. III, § 37 (“When a Congressional District is composed of two or more counties it shall not be entirely separated by a county belonging to another district . . . .”).

[6] Iowa Code § 42.4(3).

[7] Iowa Code § 42.4(4).

[8] Iowa Code § 42.4(4)(b) (emphasis added).

[9] The LSA may have sought to correct this erroneous interpretation in its second report of 2001 when it stated that “consideration of population equality alone is not required based on the United States Constitution and is also not consistent with the requirements of Chapter 42 or Iowa law in general.”

[10] Karcher, 462 U.S. at 739.

Enhanced by Zemanta

About the Author

The Iowa Republican





blog comments powered by Disqus