Inside the Capitol

Sunday, November 20, 2011

11-25 Redistricting

112511 AZ Redistricting

SANTA FE – Two months ago, I asked if there might be a way to take all politics out of redistricting. It stands to reason that with the stakes being so high for the two political parties, they will do anything possible to game the system.
New Mexico Democrats, of course, deny they did anything to help their party in the redistricting plans they passed and which Republicans now are challenging in court. New Mexico Republicans claim Democrats produced fewer competitive districts in which Republicans might have a chance to win and eventually gain a majority.
The courts will decide. But then courts aren't free of politics either. We have seen courts tilted in both directions that have been accused of deciding elections.
So how do we design a completely nonpartisan redistricting system? I described some state plans two months ago in which independents cast the deciding votes. I liked neighboring Arizona's system in which Republican and Democratic leaders choose two members apiece and those four choose an independent to be chairman.
But we have just learned that this method isn't working either. Why? Because the plan had too many competitive districts that Democrats might win. Wait a minute. In New Mexico, Republicans wanted more competitive districts.
It depends on who is in control. It is good for voters to be in competitive districts because their vote is more likely to count. But the party in control wants as few competitive districts as possible. It has nothing to do with what is best for voters.
But what could Arizona Republicans do about the independent who voted for more competitive districts? They didn't appoint the person so they couldn't remove her. But, wait a minute. Another part of Arizona law gives the governor power to remove a member of any state committee for gross misconduct. So that's what Gov. Jan Brewer did.
The Arizona Supreme Court said that wasn't good enough. Brewer at least needed to explain the actions that constituted gross misconduct. Brewer said whatever she said was gross misconduct was gross misconduct. The Supreme Court disagreed. She said the court needed to explain.
But Brewer isn't giving up. She is meeting with her top advisers to determine what she can do to the decisions of the independent redistricting committee. Evidently her options will not include explaining what sort of gross misconduct the independent redistricting chairman committed.
Gov. Brewer's defense reminds of former President Richard Nixon's Watergate defense that if the president did it, it was legal. Even Nixon's friends didn't buy that one.
A better explanation came from former New Mexico Senate President Pro Tem Les Houston. When told that what he was trying to do was unlawful, he replied that anything for which he could get 22 votes (in the 42-member body) was legal.
Houston was closer to correct. The Senate is a lawmaking body and therefore can make decisions that a chief executive of a state or nation cannot.
So would it be possible to give independent redistricting commissions powers that a governor cannot override? To be constitutional, the courts would need to be in on the final action. Could the burden of proof for overriding an independent redistricting commission decision in court require something stronger than a preponderance of evidence?
Could overturning a redistricting decision require evidence beyond a reasonable doubt?
Of course, New Mexico will never have such an independent redistricting process until voters have the ability to put items on the ballot. It is called an initiative and referendum process. Gather enough signatures from registered voters and an issue can be put on the ballot for a public referendum.
Republican legislators have tried in the past to convince the Legislature to put initiative and referendum on the ballot. But Democrats, who almost always have been in control since 1930, don't like seeing voters going over their heads.


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