Fair Maps Nevada Constitutional Amendment Explainer
You can read our Fair Maps Nevada amendment here: Fair Maps Nevada Amendment
You can read our attorney’s response to the legal challenge to our description of effect here: Letter to Kevin Benson – dated 12-17-2019
First, a historical and philosophical framework:
During the Constitutional Convention in 1787, our country’s founders created a governing document sufficient to address the needs of the day, while simultaneously flexible enough to adapt to the realities of the future. They crafted a blueprint of government that aimed to balance governing powers between competing branches, the states, and future generations, who can recalibrate that balance as needed.
Our founders established direct representation in the legislative house which holds the power to raise taxes, to address the colonial-era argument of “no taxation without representation.” And, instead of over-relying on prescriptive regulations, they cleverly engineered mechanisms of countervailing power to harness self-interest as a tool to keep corruption at bay. Self-interested groups all watch the cookie jar to ensure no one cheats.
Our current census and redistricting processes are the legacies of these governing philosophies. To ensure responsible, direct representation in the House of Representatives, and later in state and local governments, our founders envisioned districts that produced leaders equally impacted by the laws and taxes they voted to pass. Districts, therefore, were to be drawn to elect officials with deep connections to their constituents and to empower constituents to hold their leaders accountable.
The U.S. Constitution, the result of our founder’s efforts, has served us well for over two-hundred years and when we have found it wanting, we’ve used its amending process to fix the deficiency. We have, however, faced one daunting challenge that has been difficult to address.
Our founders assumed the United States would be too diverse for organized political groups to form, so they opted to not address the role of political parties in the Constitution, yet political parties did form after the Constitution’s ratification. And as those parties melded into our governing infrastructure, we’ve faced destructive struggles as partisans disabled checks and balances to benefit their group over the public’s interest.
Efforts to regulate the destructive power of the political parties have come through laws, litigation, and amendments to the federal and state constitutions. Some of these efforts have directly cut off access to power, while other reforms have indirectly curtailed a range of possible negative outcomes.
Despite not specifically addressing political organizations, our Constitution does clearly prioritize representation with its directive to conduct a decennial census (Article I Section 2). And while it is silent on redistricting details, the people were empowered through their elected officials to create representative districts.
Unfortunately, the political parties were then able to assert control over the redistricting process, which allowed partisans to produce maps that ensured favorable electoral victories. By co-opting redistricting power for partisan purposes, commonly known as gerrymandering, the political parties made it almost impossible for the people to reclaim this power merely by electing new representatives from these distorted districts.
Gerrymandered districts produce candidates who represent a party’s interests, not constituent interests, so gerrymandering allows the political parties to draw district maps to benefit incumbents and their candidates at the expense of the people.
Our proposed solution:
Since the Civil War gerrymandering cases have generally divided into two kinds, racial and partisan, with both types aiming to suppress the influence of voters. Since the 1950s litigation through the federal courts has been the preferred remedy until recently.
The League of Women Voters alone and in coalitions has sued to overturn gerrymandered maps on a state by state basis. Unfortunately, in June of 2019, the Supreme Court ruled in cases out of North Carolina and Maryland that partisan gerrymandering is a political issue that cannot be fixed through the federal courts. So, we needed a new strategy. See Rucho v. Common Cause
The League of Women Voters isn’t about to celebrate our 100-year anniversary because we back down from a fight; we’ve endured because we figure out how to go over the wall when a gate shuts. In this instance, we looked at our 2017 Pennsylvania gerrymandering case for a solution.
In that case, the League of Women Voters Pennsylvania sued to overturn gerrymandered maps based on their state constitution, including their “free and fair election” clause. We won and the Pennsylvania Supreme Court then affirmed the ruling and struck down the state’s gerrymandered districts.
Pennsylvania’s Republican Party appealed the ruling to the U.S. Supreme Court, but the Court declined to accept the case; this effectively established a state option for curbing partisan gerrymandering. Combined with a 2015 Supreme Court ruling in Arizona Legislature v. Arizona Independent Redistricting Commission, which established the constitutionality of independent redistricting commissions, we arrived at a new strategy.
Subsequently, in September of 2019, the League of Women Voters announced our People Powered Fair Maps initiative, which focuses on a mix of state and federal solutions for partisan gerrymandering. Each League affiliate decided the best option for addressing their own state’s potential for current and future gerrymandering. https://www.lwv.org/redistricting/people-powered-fair-mapstm
League affiliates in states with established redistricting commissions are advocating for the U.S. Senate to bring H.R. 1, which passed the House of Representatives with yes votes from Nevada’s three Democratic congressional representatives, up for a vote. H.R. 1 requires every state to have a congressional redistricting commission.
Not only did Nevada’s three Democratic members of the House of Representatives vote yes on H.R. 1, they also signed on as co-sponsors. Read more here: H.R. 1 Text and Cosponsors
The League of Women Voters of Nevada opted to pursue a state constitutional amendment to create a bipartisan independent redistricting commission. We selected this option foremost to prioritize the power of the people in the redistricting process and to create checks and balances to regulate the influence of the political parties.
The argument for our amendment:
Accusations that this ballot question was written by anyone other than the League of Women Voters of Nevada and our partner Indivisible Northern Nevada in consultation with our attorneys are baseless and a scurrilous attempt to derail our anti-gerrymandering efforts.
We relied on three main sources when researching how to develop a redistricting commission suited for Nevada.
First, League of Women Voters affiliates in other states have already successfully passed and litigated initiatives to adopt redistricting commissions, so we looked at the language and content of those states’ amendments and legislation. We found that Colorado and Michigan have redistricting commissions that could work in Nevada.
You can view current redistricting commissions here: http://www.ncsl.org/research/redistricting/creation-of-redistricting-commissions.aspx
Second, we used the Campaign Legal Center’s Guide for Designing Redistricting Commissions: Read the Guide Here
Third, we used information from the Brennan Center for Justice. You can read their Guide for Redistricting Commissions: Read the Guide Here
We did not follow any one example or guide to the letter for a number of important reasons. The first reason connects directly to limitations placed on ballot questions in Nevada. Amendments may not violate the single-subject rule and cannot violate the prohibition against including excessive administrative details. So, we could not include too many details or require a judge to assist with the process of placing individuals on the commission without running the risk of violating these two rules.
But, after a ballot question passes, legislators in the next legislative session will write enabling legislation that can include members of different branches of government and administrative details.
We also took funding into consideration. Every extra commissioner adds to the commission’s cost even after making the commissioners all unpaid due to per diem costs, so while the above-mentioned sources recommend at least nine commissioners, we felt that seven commissioners and ample opportunities for the public to engage in the redistricting process made more sense for Nevada.
We also recognize that for many Nevadans, our political parties provide familiar infrastructure to express views on a wide range of issues. That’s why our redistricting plan includes the political parties through their representatives in the Nevada Legislature, while also subjecting them to new mechanisms of countervailing power that ensure they prioritize the public interest ahead of their narrow personal political careers.
Our commission, therefore, insulates the redistricting process from personal ambitions of self-interested politicians by bringing it out of smoke-filled backrooms by closing an existing loophole that exempts the redistricting process from state Open Meeting laws. Too much of what happens during legislative sessions happens away from the public’s eyes. Under our plan, redistricting will no longer be hidden behind closed doors.
Right now, approximately twenty-five percent of Nevada’s registered voters are not affiliated with the two major political parties, and so have no voice whatsoever in the redistricting process. Our proposed redistricting commission gives these Nevadans a seat at the table.
We understand that running a constitutional amendment ballot question is a heavy lift that requires gathering a substantial number of signatures and receiving an affirmative vote in two consecutive elections. But this process ensures permanence and consistency for the redistricting process because any future attempts to eliminate the redistricting commission must use the same arduous process and secure similar levels of support.
We could have chosen to run an easier-to-pass statutory ballot question. But this would allow the political parties to change and/or effectively kill the law.
If our amendment succeeds in both 2020 and 2022, the new redistricting process will start in 2023 with enabling legislation to help guide the commission. At this point, Nevada’s legislature will have a mandate from the Nevada Constitution to engage in the redistricting process, so it will fund redistricting just as it has in the past.
We did consider whether to constitute the commission through a random, automated application process, but we worried that randomly selecting commissioners could produce unrepresentative selections. We, therefore, decided on the following process, which will result in a commission comprised of seven members.
Leaders of the two major parties will select four members. Nevadans registered with these two parties will be able to influence this part of the process through their elected, party representatives. We believe party constituents will pressure their leaders to appoint commissioners who reflect the various, diverse groups in their party. If constituents would like an application process, please work during the 2023 legislative session to influence the enabling legislation.
These four commissioners will then select three members who are not affiliated with either of the major political parties.
Again, if Nevadans would like to include an application process to assist in selecting these three commission members, they can do so by influencing the enabling legislation.
Once constituted, and unlike under our current legislative redistricting process, the new redistricting commission will be constitutionally required to do their work in the open, and it will be constitutionally required to allow the public to participate in the process. Redistricting software can be easily accessed by the public online, creating an additional layer of public scrutiny to effectively check the commission’s work.
Under our amendment, the redistricting commission will be constitutionally required to draw maps that meet the following criteria:
The Commission will ensure, to the extent possible, that the electoral districts comply with the United States Constitution, have an approximately equal number of inhabitants, are geographically compact and contiguous, provide equal opportunities for racial and language minorities to participate in the political process, respect areas with recognized similarities of interests, including racial, ethnic, economic, social, cultural, geographic, or historic identities, do not unduly advantage or disadvantage a political party and are politically competitive.
In our last round of redistricting, in 2011, the Democrats controlled both legislative houses, and Governor Brian Sandoval, a Republican, vetoed two sets of maps drawn by them, arguing that both violated the Voting Rights Act. According to the Legislative Counsel Bureau’s Constituent Services Office, these maneuverings cost taxpayers $85,000.
At a stalemate, a judge created a redistricting panel that consisted of three nonpartisan “special masters” tasked with following nearly the same criteria as in our amendment. Neither party sued to reject this independent redistricting panel, and it drew the maps that we have today. But altogether, the ad hoc and litigious nature of this addition to the legislative redistricting process drove the cost to taxpayers up to $332,000.
Read more about the 2011 redistricting process here: https://www.recordcourier.com/news/local/special-masters-praise-new-redistricting-process
Once our proposed redistricting commission is constituted after a second affirmative vote in 2022, it will adopt a redistricting plan. This plan can come from new maps or the very same maps drawn by the legislature in 2021. If the maps drawn in 2021 align with the amendment’s criteria, the new commission can simply adopt those maps as the state’s plan.
Again, the amendment does not require our redistricting maps to be redrawn in 2023, it only tasks the commission with adopting a redistricting plan. Hopefully, this will encourage both parties to not gerrymander in 2021.
If members of the legislature refuse to fulfill any part of our plan’s constitutional mandate, we will be ready to sue to protect Nevada’s constitution.
We are confident our description of effect is legally sound and we believe any lawsuits will be quickly resolved so that we can begin gathering signatures.
You can read our Amendment here: Fair Maps Nevada Redistricting Reform
In response to questions about whether the legislature can decide to not engage in redistricting, Nevada’s Constitution requires redistricting after each census:
Sec. 5. Number of Senators and members of Assembly; apportionment. Senators and members of the Assembly shall be duly qualified electors in the respective counties and districts which they represent, and the number of Senators shall not be less than one-third nor more than one-half of that of the members of the Assembly.
It shall be the mandatory duty of the Legislature at its first session after the taking of the decennial census of the United States in the year 1950, and after each subsequent decennial census, to fix by law the number of Senators and Assemblymen, and apportion them among the several counties of the State, or among legislative districts which may be established by law, according to the number of inhabitants in them, respectively.