I write in support of my colleague, Professor Schaff's recent post on this topic. A bill has apparently been introduced that would create an independent commission to redraw South Dakota's election districts after every census. I agree with Professors Newquist and Schaff that legislatures may indeed delegate certain powers to independent bodies, powers that the legislature itself would otherwise exercise. I agree with Pat Powers and Professor Schaff that there are constitutional problems with Rep. Bill Thompson's proposal, as I understand it. I should add that I could not find that bill on the legislature's page, and I am relying on Pat Powers' documents.
The bill would apparently provide for the creation of a bipartisan commission of seven citizens to do the job of redistricting. The procedure by which the commission would be appointed seems fair enough. The redistricting plan that the commission drafts would be submitted to the legislature, and the legislature would be allowed to make "recommendations." But as I read it, the legislature would have no power to alter the plan, or to prevent it from becoming law.
I agree with Profess Schaff that this is inconsistent with the plain words of the SD Constitution, which states that "The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators ...[my italics]" If the bipartisan commission has the final say, then the legislature is no longer apportioning its membership or dividing the states into legislative districts.
Professor Schaff directs our attention to the state of Iowa, where a similar plan is in place. But in the Iowa scheme,
The legislature has the final responsibility for enacting both congressional and state legislative district plans, but the nonpartisan Legislative Services Bureau has initial responsibility.
In other words, the independent body produces a plan (or three plans, to be precise), and the legislature must approve one of them. That procedure would pass constitutional muster in South Dakota.
Gerrymandering is a very old practice in American politics, as is indicated by the image produced above. As soon as the first political party system emerged (and it emerged very quickly), it was discovered that districts could be drawn so as to benefit one party at the expense of the other. As state legislatures draw district lines, this has the effect of artificially increasing the power of the party that controls the state legislature. Contrary to Professor Newquist's comments, there is nothing obscene about this. Winners enjoy a lot of unfair advantages in any democratic system. But it is at least an ugly distortion of the will of the electorate, and there is nothing to recommend it. It has lasted these two centuries because its vices are always more readily apparent to the party that suffers from it, and the power to change it lies always in the hands of the party that benefits. If Professor Newquist wants to see something really ugly, look to the campaign waged against a similar reform proposal by Republican Governor Arnold Schwarzenegger in California. It will not be easy to get reform here, either. But if Iowa can do it ...
I would like to see something similar to the Iowa system put in place in South Dakota, and I applaud Rep. Thompson for suggesting it. I think it would be better government. I disagree with Professor Schaff only in so far as I think a constitutional amendment would a very bad idea. That would create a fourth branch of government with its own constitutional authority, however circumscribed, that would be uncorrectable by the legislature and governor. Or uncorrectable for at least ten years. The better course would be to amend the proposal to make it more like the system in Iowa.
The legislature must have the final say about which redistricting plan is adopted. Of course, the majority party will be tempted to veto any plan that does not preserve its advantage. But the state constitution wisely provides for that. If the independent commission proposes three plans, and the legislature cannot agree on any of them, the State Supreme Court will choose one. I am guessing that the majority will rather act than let the Court act for it.
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