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School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

An End to Business as Usual: Adopting an Independent Redistricting Commission in Arkansas

By · May 17, 2017 · 2017 Ark. L. Notes 1974
In categories: Arkansas Law Notes, Extended Article, Government Practice

I. Introduction

Imagine that you are sitting in your office getting ready to head to a board meeting when suddenly an important proposal that will be voted on shortly is dropped on your desk. You do not know anything about the proposal. You notice the proposal is for a project that you too have been working on—in fact, you have created your own separate proposal. When you arrive at the board meeting a few minutes later, the two other board members inform you that they will be voting on the project proposal and they are approving their proposal that you received minutes earlier. You quickly realize that no consideration was given to your proposal and there will be no debate on the matter in the board meeting. The other two members have the deciding votes because they constitute a majority, which is all that is required for the board to approve the project proposal. The above scenario is clearly unfair and allows the majority group to create a project proposal that only serves their interests. By substituting state politics for business as the backdrop, the above scenario illustrates the redistricting process in Arkansas.[2]

In most democracies across the world, voting districts are “geographically defined and normally consist of contiguous territory.”[3] The process of drawing these voting districts is known as redistricting.[4] In the United States, it has become customary for members of the legislature to have the power of redistricting, and they are able to draw their own district lines.[5] The process of redistricting in the United States creates a system where politicians are “choosing their voters at least as much as it is the voters choosing their representatives.”[6]

In Arkansas, the state constitution separates redistricting responsibilities to ensure that legislators do not draw their own district lines, but the process still benefits the majority party at the expense of the voters.[7] After each U.S. Census, the Board of Apportionment (hereinafter “the Board”), composed of the sitting Governor, Attorney General, and Secretary of State, has the power to redraw Arkansas senate and house districts.[8] The Arkansas General Assembly has the power to redistrict Arkansas’ U.S. Congressional districts after the Census.[9] To reach an ideal population for General Assembly seats, the total population of the state is divided by 100 Arkansas House districts and thirty-five Senate districts.[10] Using the Census data, the Board looks at the population of current districts and compares it to the new ideal district population.[11] When a district has a smaller population than a new ideal district, the boundaries of that district are expanded.[12] Conversely, if the population of a district is larger than the new ideal district, the boundaries of that district shrink.[13]

Despite the checks on power, the redistricting process in Arkansas has negatively impacted voters. Section II will explain the background of redistricting and the problems it creates for the right to vote.[14] In Section III, the specific problems with redistricting in Arkansas will be addressed.[15] For example, the first problem is the Board has been the defendant in a successful court battle where minority voters claimed vote dilution existed in majority-minority districts in the Delta.[16] Second, heated fights between the political parties have led to uneven redistricting maps that favor the majority party in the General Assembly and the Board.[17] Finally, the redistricting process created noticeable deviations in state House and Senate district populations where some districts are underpopulated while others are overpopulated.[18] The problems with the current system show there is a drastic need for redistricting reform in Arkansas.

In response to the negative impacts created by the traditional redistricting process, other states have used public ballot initiatives to adopt redistricting reforms—including independent redistricting commissions.[19] Section IV will discuss the variety of redistricting commissions that have been passed or proposed and give recommendations for the creation of a commission in Arkansas.[20] Redistricting commissions take the power to redistrict away from politicians and allow a group of citizens to draw the new district lines.[21] States that have adopted redistricting commissions often require the members of the board to be diverse in terms of political background, ethnicity, and the area of the state they are from.[22]

Redistricting in Arkansas is a flawed system that is inherently partisan, and it has negatively impacted voters through vote dilution and partisan politics. Therefore, Arkansas should adopt an independent redistricting commission that would be made up of a diverse group of citizens who would take over redistricting responsibilities from elected officials.

II. The Business of Redistricting

The right to vote is the corner stone of American democracy. Therefore, the method by which voting districts are created is of the utmost importance. Beginning in the 1960’s, the Supreme Court heard cases that focused on redistricting and created the constitutional principle of “one person, one vote.”[23] The Court also upheld and enforced the Voting Rights Act by creating a framework to use when deciding issues of minority vote dilution—when redistricting is used to devalue racial minority voting blocs.[24] Finally, the Court has restricted the population deviation of legislative districts so that districts all have similar population totals.[25]

A. Redistricting and Gerrymandering

Federal courts did not address redistricting issues until Baker v. Carr in 1962.[26] In Baker v. Carr, the Court held that plaintiff voter’s equal-protection claim was justiciable.[27] The Court’s decision made it clear that unequal legislative districts “would come under more stringent judicial scrutiny,” but it failed to articulate what courts would actually do with voting districts that violated the equal protection clause.[28]

After Baker v. Carr, the Court further expanded on the issue of district populations and equal protection.[29] In Reynolds v. Sims, the Court held that “weighting the votes of citizens differently” was a violation of the equal protection clause.[30] In Wesberry v. Sanders, the Court held that the “Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives.”[31] Wesberry and Reynolds together articulate the “one-person, one-vote” doctrine, which holds that each person’s vote should be counted equal and voting districts should have equal populations.[32]

In 1993, the Supreme Court looked at issues of extreme race based gerrymandering of congressional districts.[33] In Shaw v. Reno, the Court struck down North Carolina’s Twelfth Congressional District because on its face the district was clearly an attempt to segregate people based on their race.[34] Since Shaw v. Reno, the Court has held that gerrymandering claims are justiciable, but it has failed to create a definitive standard for gerrymandering cases—only ruling that race cannot be the primary factor in creating a district.[35]

The Court has also taken up the issue of political gerrymandering as a violation of the equal protection clause.[36] In addressing the issue, the Court could not determine a standard to use for deciding political gerrymandering claims.[37] Therefore, the Court held that political gerrymandering claims are nonjusticiable.[38] In addition to political gerrymandering, the Court has taken up the issue of independent redistricting commissions.[39] In 2015, the Court upheld the constitutionality of the Arizona Redistricting Commission because it was passed by a public ballot initiative.[40] The next year, the Court held that the district maps created by the Arizona Redistricting Commission were constitutional because the deviation in populations between the districts was less than the requisite ten percent and plaintiffs failed to prove the plan violated the Equal Protection Clause of the Fourteenth Amendment.[41]

B. Vote Dilution

Race based vote dilution claims begin with Section 2 of the Voting Rights Act of 1965.[42] According to subsection (a), states cannot deny a citizen’s right to vote based on their race.[43] Subsection (b) outlines what is required to establish a denial of the right to vote based on race: the political process in the state is not “equally open to participation” because “members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[44]

In Thornburg v. Gingles, the Court outlined three factors to be considered in minority vote dilution cases where the racial-minority group must show: (1) “it is sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) “that it is politically cohesive”; and (3) “majority votes sufficiently as a bloc to enable it… usually to defeat the minority’s preferred candidate.”[45] The Court reasoned that “unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice.”[46]

In Bartlett v. Strickland, the Court further explained the first Gingles factor requiring that “minorities make up more than fifty percent of the voting-age population in the relevant geographic area” for the creation of a majority-minority district.[47] If the Gingles factors are satisfied and a majority-minority district could exist but was not created, “or where a majority-minority district is cracked by assigning some voters elsewhere,” then the minority group has been denied the opportunity to elect a candidate of their choice.[48]

C. District Population Deviation

One method employed by partisans during redistricting cycles is to increase or decrease the population of voting districts in a way that helps their party and places the other party at a disadvantage.[49] However, changing population percentages goes against the ideal of “one-person, one-vote.”[50] Therefore, the Supreme Court of the United States has held that in order for U.S. congressional districts to withstand judicial scrutiny, any discrepancy, no matter how small, must be in spite of a good faith effort to achieve precise mathematical equality between districts, and if the districts are not a produce of good faith, they must be justified by a legitimate state interest.[51]

However, state senate and house districts are treated differently. For state legislative districts, populations can deviate by less than ten percent without creating “a prima facie case of discrimination.”[52] If the state district’s population deviates by ten percent or more, then the State must justify the deviation.[53] In the face of such a large population deviation for state districts, some states have passed legislation requiring their district populations to not deviate by more than five or even three percent (either larger or smaller than the ideal deviation).[54]

III. Business as Usual: The History of Redistricting in Arkansas

In 1936, Arkansas was at the forefront of redistricting reform when it passed Amendment Number Twenty-three to the Arkansas Constitution— “the first ever redistricting initiative.”[55] Amendment Number Twenty-three to the Arkansas Constitution created the Board, which replaced the Arkansas General Assembly as the body charged with redistricting state house and senate districts.[56]

Despite the fact that Arkansas was the first state to reform traditional redistricting, there are apparent problems with the current system. First, the redistricting process is inherently partisan and favors the party with two of the three votes on the Board. Second, voters have felt the negative impacts of minority vote dilution and dramatic difference in district population deviation for political gains. In order to remedy the current problems with redistricting in Arkansas, the process must be completely reformed.

A. Flawed Redistricting Process

The redistricting process in Arkansas is set up to benefit the party that holds a majority of the seats on the Board.[57] For the past two redistricting cycles (2001 and 2011), Democrats have held two of the three seats on the Board allowing them to redistrict without any approval from Republicans.[58] Under the current redistricting process, the majority party is able to pass a redistricting plan that favors their own political objectives regardless of the impact it has on the voters.

1. Redistricting Procedure

Since the passage of Amendment Number Twenty-three, the Board has drawn district lines for Arkansas House and Senate districts.[59] The Board is comprised of the sitting Governor, Secretary of State, and Attorney General.[60] Prior to Amendment Number Twenty-three, the Arkansas General Assembly retained complete control over redistricting, and state senate and house districts populations varied widely because redistricting had not taken place in over forty years.[61] The Arkansas Supreme Court argued that with Amendment Number Twenty-three, “the people intended to correct certain evils that then existed; some counties with a small population having more representatives than others with a larger population.”[62]

Following the U.S. Census, the Board reapportions the Arkansas General Assembly based on the most recent census data.[63] During the most recent round of redistricting, the official population of Arkansas was 2,915,918, and the population is evenly divided between Arkansas’ 100 house districts and thirty-five senate districts to create an ideal district population.[64] For the 2011 redistricting cycle in Arkansas, the ideal population of a senate district was 83,312 people and the ideal house district was 29,159.[65]

When creating new district lines, the Board looks at the population of the districts from the last census and compares the current district population to the new ideal population.[66] If the district’s population is less than the new ideal population, then the Board increases the size of the district to increase the population.[67] Conversely, if the population of the district is larger than the new ideal population, then the Board decreases the size of the district to shrink the population.[68] The Board also welcomes public comments through the website, and it schedules public meetings that occur throughout the state where voters can express their concerns about the creation of new voting districts.[69] After taking into account ideal district population size and public comment, the Board creates new district maps that are adopted by a majority vote.[70] The approved district maps are filed with the Secretary of State and become the new Arkansas house and senate districts until the next Census.[71]

2. Partisan Nature of the Redistricting Process

Redistricting is an inherently partisan process: state legislators fight to preserve control over their district while extending the political power of their party throughout the rest of the state.[72] Partisan fighting remains an issue in Arkansas even though the General Assembly was removed from most of the redistricting process.[73] For example, in Jeffers v. Beebe, testimony was given by the Governor, Attorney General, Secretary of State, and a state senator from the Delta to illustrate the partisan fighting that occurred in the recent 2011 redistricting cycle.[74]

In Jeffers v. Beebe, African-American voters from the Delta brought a claim against the Board alleging a violation of Section Two of the Voting Rights Act and the Fourteenth and Fifteenth Amendments.[75] For plaintiffs to bring a constitutional vote dilution claim under the Fourteenth or Fifteenth Amendments, they had to prove the state “acted with a discriminatory purpose.”[76] Plaintiffs used testimony from the three Board members and other related legislators to show the reasoning and process used by the Board during redistricting.[77] From the testimony, the court determined that partisan politics played a major role in the redistricting process.[78]

Partisan politics was a clear issue between the three members of the Board because only two of the three member’s votes are required to pass new district maps.[79] When asked about the Secretary of State’s (the lone Republican on the Board) proposed redistricting plan, the Governor admitted that he “discarded most of Secretary Martin’s suggestions.”[80] The Attorney General also acknowledged “that ‘virtually no[]’ consideration was given to Secretary Martin’s Senate map.”[81] When the Secretary of State was asked about the proposed redistricting maps, he said that he “kn[e]w very little about [the enacted maps] except [that] they showed up slightly before it was time to vote on them.”[82] He also claimed it was “made perfectly clear” that his ideas were not going to be considered.[83] In fact, the Secretary of State claimed that in the final meeting there was no debate over the maps—his redistricting plan was “not even brought up.”[84] The need for a bare majority vote to pass the district maps effectively nullified the Secretary of State’s vote and left any Republican suggestions out of the discussion.

The political nature of redistricting was also apparent in interactions between Board members and state legislators.[85] A state senator who represented the district at issue in Jeffers v. Beebe testified that he met with the Governor several times about the redistricting of his district.[86] The senator claimed their first two meetings were “cordial”, but in their final meeting, the Governor was “quite heated.”[87] The senator testified that the Governor “banged on the table” and told him: “I don’t want to look at any more maps. And I wish you wouldn’t come back to my office asking me about that again.”[88] The Governor even acknowledged his own behavior during testimony and explained that he and the senator “would get exasperated with each other.”[89]

The state senator also testified that he talked with the Attorney General because the Governor would not help him.[90] He urged the Attorney General “to do the right thing for the people of Arkansas, not just simply what the Governor says, and do what’s right because you are the State’s attorney.”[91] The court found that the Governor and Attorney General disregarded the state senator because of “the political preferences of the majority of the Board” not because of his race.[92]

After acknowledging the inequality and unfairness of the 2011 redistricting process, the court showed concern with the Governor’s dismissive attitude towards the state senator, as well as his “comparative disregard for the Jeffers cases’ history and holdings” at the expense of his own political motives.[93] However, the court acknowledged that none of the Governor’s actions were unconstitutional.[94] Even though the Board’s actions were constitutional, it is apparent they voted according to their own political objectives and failed to seek an agreement involving the Secretary of State.[95] Despite the establishment of the Board, partisan disputes and fighting are still an integral part of redistricting in Arkansas.

B. Negative Impacts of Redistricting on Voters

Even though Arkansas was the first state to reform traditional redistricting, there are apparent problems with the current system that have a negative impact on Arkansas voters. First, the discrepancies in district population deviation show overrepresentation in some Democratic districts and underrepresentation in Republican held districts.[97] Second, the approved redistricting maps from 2011 have more districts with high population deviations compared to the Secretary of State’s proposed maps.[98] Finally, Arkansas has a history of minority vote dilution in the Delta.[99] In order to remedy the current problems with redistricting in Arkansas, an overhaul of the current process is necessary.

1. District Population Deviation

During redistricting, politicians often use their power to shift district boundaries in ways that give their party an advantage.[100] However, changing population deviation percentages goes against the ideal of “one-person, one-vote” because some districts have larger populations than an ideal district, which devalues the voting power of those citizens.[101] Therefore, for even the smallest deviation from the ideal population of a district, the Supreme Court requires a good faith attempt to achieve precise mathematical equality, and, if good faith is not found, then the district population deviation must be justified by a legitimate state interest.[102] However, state senate and house district populations can deviate by less than ten percent without creating “a prima facie case of invidious discrimination.”[103] If the state district’s population deviates by ten percent or more, then the State must justify the deviation.[104] In the face of such a large population deviation range for state districts, some states have passed legislation requiring that district populations not deviate by more than five to even three percent (either larger or smaller than the ideal deviation).[105]

The 2011 redistricting cycle shows that disparities in population deviation between state senate and house districts is a problem in Arkansas. During the 2011 redistricting cycle, the Secretary of State submitted his own district maps along with the Governor and Attorney General.[106] However, the Secretary of State’s maps were not taken into consideration when deciding the final district lines because he was the only Republican on the Board.[107] When looking at the Secretary of State’s suggested maps as compared with the final district maps, there are clear differences.[108]

The adopted district maps tend to over represent Democratic held districts and under represent Republican districts. When looking at the population deviations for both house and senate districts, eighteen of the 135 districts have a population deviation (either positive or negative) of three percent or more[109]—the maximum population deviation allowed by statue in Montana.[110] Of those eighteen districts, ten of the districts are held by Republicans and eight by Democrats.[111] When looking at the Republican held districts, seven of the ten districts have a population deviation of positive three indicating they have more people in the district than is ideal.[112] The votes of the citizens in these Republican districts are underrepresented compared to an ideal district. However, with the Democratic held districts, six of the eight districts have a population deviation of at least negative three, which indicates they have fewer people than an ideal district.[113] Based on this information, the voting power of citizens in the five Democratic controlled districts is overrepresented compared to their population. Therefore, the ideal of “one-person, one-vote” is not always true for all state house and senate districts in Arkansas.[14]

2. General Population Deviation

The second population deviation issue is the large number of state house and senate districts that have a high population deviation percentage.[115] By comparing the population deviations in the Secretary of State’s suggested maps with the adopted maps, it is evident that the adopted district maps have higher population deviations.[116] In the Secretary of State’s suggested senate district map, the largest population deviation was in District 31, which had 517 more people than the ideal district population with a deviation of 0.62 percent.[117] In contrast, the adopted senate map had two senate districts where the population deviated by more than 3,000 people (District 22 was underpopulated and District 24 was overpopulated), and the two districts have a deviation of -3.60 percent and 4.60 percent respectively.[118]

In addition, the approved senate map had six districts that deviate by at least 2,000 people from the ideal district population.[119] For the Secretary of State’s house and senate maps, only one district had a population deviation greater than three percent.[120] Conversely, the adopted maps had a total of eighteen districts that had a deviation of at least three percent: twelve house districts and six senate districts.[121] If Arkansas had a statue similar to Montana, which has the most stringent district population deviation law and requires state districts to have a population deviation of less than three percent, then eighteen of the districts in the adopted map would be against the law.[122] Even though Arkansas does not have a statutory maximum district population deviation, the difference between the population deviations in the Secretary of State’s maps and the approved maps are drastic.

3. Minority Vote Dilution

The redistricting process in Arkansas has produced past problems with the dilution of African-American votes, and the trend continues through the 2011 redistricting cycle. The first major race based vote dilution case in Arkansas was Jeffers v. Clinton.[123] In 1981, African-American voters brought suit against the Board claiming the new redistricting plan violated Section Two of the Voting Rights Act of 1965 and the Fourteenth and Fifteenth Amendments to the U.S. Constitution.[124] In the 1981 redistricting cycle, only three majority-minority districts were created for both houses of the Arkansas General Assembly—two house districts and one senate district.[125]

The court held that in Arkansas, African-Americans were located in geographically compact areas in the Delta and South Arkansas that potentially constitute a majority in some districts.[126] The court further reasoned that elections in these areas are “highly racially polarized” because African-American candidates cannot win despite winning almost all of the African-American vote.[127] As a remedy, the court ordered the Board to submit a new plan that created more majority-minority districts in the Delta and South Arkansas.[128] However, Jeffers v. Clinton was just the beginning of minority vote dilution cases in Arkansas.

In 1994, African-American voters in the Delta once again brought a claim against the Board alleging the Board’s redistrict plan created after Jeffers v. Clinton was still in violation of Section Two of the Voting Rights Act.[129] The plaintiff’s argued that only four majority-minority House districts were created in the Delta when five could have been created, and only one majority-minority Senate district was created when two could have been drawn based on the African-American population.[130]

Majority-minority districts are required to have more than a simple majority of African-American voting age population in order to adequately represent the choice of the minority group: a district with sixty percent minority voting age population satisfies the requirement.[131] The court reasoned that the plaintiff’s proposed redistricting map would create more majority-minority districts, but the proposed districts would be under the sixty percent African-American voting age threshold.[132] The court found that the plaintiff’s proposed majority-minority Senate seat would not follow Shaw v. Reno and create a district with an irregular shape that could only be explained by race.[133] The court held that the 1991 redistricting plan did not violate Section Two of the Voting Rights Act because the minority population was too dispersed to create additional majority-minority districts.[134]

In 2012, African-American voters from the Delta brought a claim against the Board alleging a violation of Section Two of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the U.S. Constitution.[135] The plaintiffs alleged the new district map diluted the voting strength of African-Americans.[136] Specifically, the voters took issue with Senate District 24 in the Delta that had a decreased Black Voting Age Population (BVAP) compared to the previous population of the district.[137]

In evaluating the vote dilution claim, the court addressed the issue of the minority group’s size and compactness.[138] The court held that Plaintiffs failed to establish this factor because the district was already a majority-minority district even though the district did not meet the 60 percent African-American voting age population threshold. The court reasoned that “[t]he Supreme ‘Court [has] rejected the proposition… that § 2 entitles minority groups to the maximum possible voting strength.’”[139] Therefore, a district with sixty percent minority population was not required to constitute a majority-minority district.[140] Also, the court further reasoned that Plaintiff’s proposed Senate district only had an African-American voting age population of 58.41 percent, showing that sixty percent or more was not possible for the Senate district in question.[141]

For the third factor, Plaintiffs must prove “that the white majority votes sufficiently as a bloc” that allows it to “defeat the minority’s preferred candidate.”[142] However, in the counties that were included in the Senate district in question, President Obama received a majority of the votes—proving the minority preferred candidate actually won in the majority-minority district.[143] Therefore, the court held Plaintiffs did not meet their burden of proof for a vote dilution claim.[144]

Even though the court held that there was no “illegal vote dilution or intentional discrimination” in this case, it did acknowledge that the plaintiffs brought forward many issues with the current redistricting process.[145] Looking at the data from the 2011 adopted and proposed redistricting maps, the Secretary of State’s proposed maps have more majority-minority districts than the adopted district maps.[146] According to the Secretary of State’s data, his proposed maps included nineteen districts with a BVAP of fifty percent or higher—including two districts with a BVAP percentage of over sixty percent.[147] Conversely, the adopted redistricting maps only included fifteen districts with a BVAP of fifty percent or higher and only one district was higher than sixty percent.[148]

The data clearly shows the Governor and Attorney General could have passed a redistricting plan with more majority-minority districts than we have today, but they decided to vote according to their own political objectives.[149] The Secretary of State also appeared to be acting according to his own political motives by including a large number of majority-minority districts in his proposed district maps.[150] In Jefferes v. Beebe, the court added that even though the votes are not counted equally, it is up to the voters, not the courts, to remedy the issues with redistricting in Arkansas.[151]

Despite the fact that Arkansas was the first state to reform the traditional redistricting system, there are apparent problems with the process to this day. First, the Board is severely partisan and suggestions from the minority political party are not incorporated into the district lines. Second, districts have extreme population deviations that favor the majority political party. Finally, Arkansas has a history of successful minority vote dilution that continues through the 2011 redistricting cycle, but more recently the courts have shown they are no longer positioned to remedy the situation. In order to remedy the current problems with redistricting in Arkansas, the process must be changed.

IV. An Alternative to Business as Usual

Regardless of the method, redistricting is a complicated and messy process.[152] However, there are redistricting institutions that lead to the ultimate goal of redistricting: fair and equal democratic election. States across the country have experimented with a variety of institutions that seek to improve the process of redistricting.[153] One such variation is the independent redistricting commission.[154] The purpose of independent redistricting commissions is to take the power over redistricting away from politicians that directly benefit from drawing district lines.[155]

The independent redistricting commission itself is typically comprised of citizens, often with their own political dispositions.[156] However, they are combined into one group that works together to create new district lines.[157] Commissions are not perfectly nonpartisan, but the commission seeks to place restraints on a deeply partisan process and place it in the hands of an uninterested group of leaders.[158]

Independent redistricting commissions are not the only option for redistricting reforms.[159] The redistricting process can be reformed by placing stronger restraints on the legislature while it retains the power to redistrict.[160] Reforms have also taken the shape of redistricting commissions that have strict requirements on their ability to draw district lines.[161] However, Arkansas has already passed one redistricting reform creating the Board in the 1930’s, and the reformed system remains deeply partisan and negatively impacts voters. Therefore, the independent redistricting commission is the reform option that will best remedy the problems with the redistricting process in Arkansas.

The first half of this section will address the issues present in the current Arkansas redistricting process: (1) procedure; (2) membership diversity; and (3) independent authority. To address these issues, this section will evaluate examples of existing and planned redistricting commissions across the country. The state redistricting commissions will be analyzed to establish the process for creating an independent commission to address the redistricting problems faced by Arkansas. The second half of this section will propose an independent redistricting commission for Arkansas. The proposed commission will be based on the examples from other states, and it will address the issues of flawed and inherently partisan procedures, minority vote dilution, and severe population deviation between the districts.

A. Redistricting Commissions

This section will evaluate existing and planned redistricting commissions in California, Arizona, Washington, and Illinois to establish the process for creating an independent commission to address Arkansas’ redistricting problems. Three factors will be used to evaluate the independent redistricting commissions: (1) redistricting procedure; (2) membership diversity; and (3) independent authority.

1. California

After a long history of struggling for redistricting reform, California voters passed Proposition 11 in 2008 and Proposition Twenty in 2010.[163] Proposition Eleven enacted an independent redistricting commission that only had power over the California Legislature, and Proposition Twenty extended the commissions control to U.S. congressional districts.[164] The California Redistricting Commission was established as a board comprised of fourteen members that are chosen by the State Auditor through an application process.[165] In order to ensure the members of the commission are uninterested citizens, California created a variety of requirements for membership on the commission.[166] First, prospective members are not allowed to hold an elected or appointed political office presently or in the past.[167] Members are not allowed to have served in a paid position for a political party or campaign committee, and lobbyists are barred from membership.[168] Finally, members cannot be the immediate family or a consultant of a state or federal official.[169]

The State Auditor created an elaborate application process where prospective commission members would fill out an online form, write “four essays of 500 words or less,” provide their education level, and a list of potential conflicts of interest.[170] Next, the Auditor choses eight of the members through a lottery system: three registered Republicans, three registered Democrats, and two independents.[171] The eight members then choose six additional members from the remaining applicant pool: two Republicans, two Democrats, and two independents.[172] In addition to political diversity, the six chosen members of the commission had to reflect the diversity of California in terms of “racial, ethnic, geographic, and gender diversity.”[173]

Once the final maps for the California legislature and U.S. congressional districts are created, a majority of each political group of the commission is required to approve the maps: three Democrats, three Republicans, and three independents.[174] The California commission has self-executing power to enact the redistricting map for the state of California.[175] However, the Commission’s final map is “subject to referendum in the same manner that a statue is subject to referendum.”[176]

2. Arizona

In response to legislative gridlock and drastic district lines drawn by a federal judge in the early 1990’s, Arizona voters passed Proposition 106, a state constitutional amendment that established the Arizona independent redistricting commission.[177] The redistricting commission is composed of five members: two registered Republicans, two registered Democrats, and one independent.[178] In addition to the political party diversity of the group, no more than two members of the commission are allowed to be from the same county, creating geographic diversity.[179] To ensure an independent board, Arizona also has a variety of basic requirements for potential commission members.[180] First, a commission member cannot be a candidate for or hold an elected or appointed public office.[181] Also, a member cannot have served as a lobbyist or as an officer of a political party.[182]

The amendment to the Arizona Constitution also outlines the process for selecting the five member board.[183] The Commission on Appellate Court Appointments narrows the applicants to a pool of twenty-five nominees: ten Democrats, ten Republicans, and five independents.[184] Next, the party leadership from both houses of the state legislature appoints the first four members of the commission.[185] Finally, the four appointed members then pick the final member of the commission from the pool of five independent nominees.[186] The commission is comprised of two Democrats, two Republicans, and one independent.[187]

Before the commission approves the final district maps, it publishes a draft district map for public comment and recommendation reports from both houses of the state legislature.[188] After making changes to the district map, the commission votes on the final maps.[189] To pass the final redistricting maps, three of the five members must approve the maps.[190] Therefore, the final redistricting maps are passed by either bipartisan support or with the support of the lone independent member.[191] The Arizona commission has the independent power to execute the maps into law.[192]

3. Washington

Similar to California, the Washington independent redistricting commission was not used until after the 2010 census.[193] The commission is comprised of five members with the first four members chosen by the leaders of both parties in both houses of the state legislature: two Republicans and two Democrats.[194] After the initial appointments, the four members of the commission chose the final member who does not vote and acts as the commission’s chairperson.[195] Washington has membership requirements to ensure that prospective commission members will not be self-interested.[196] First, a commission member cannot have previously held an elected office at the state or county level.[197] Second, a member cannot serve as an elected official within two years of his service on the commission.[198]

Before the final district maps become law, three of the four voting members of commission must approve the maps.[199] After the commission’s vote, the district maps are reviewed by both houses of the state legislature.[200] At this stage, if any changes are made to the maps, each house must approve the maps by a margin of two-thirds, but the legislature cannot change a district by more than two percent of the district’s population.[201] The Washington commission does not have independent power to execute the maps into law.[202] After the maps are approved by the legislature, they become the official district lines of Washington.[203]

4. Illinois

Similar to other states before an independent redistricting commission, Illinois has a history of redistricting gridlock and corruption.[204] Currently, the Illinois legislature holds the power to redistrict.[205] However, if the legislature is unable to pass new district maps, a committee of eight legislators (four Republicans and four Democrats) creates the map.[206] If the eight person special committee cannot decide on the matter, then a tie-breaking vote is chosen randomly.[207] The luck-of-the-draw selection of a tie breaker occurred in three of the last four redistricting cycles.[208] In addition, the current Illinois redistricting process ensures that incumbents are protected and many seats are left uncontested.[209]

In response to the history of redistricting problems in Illinois, an independent group has created a petition for a public ballot initiative to amend the state constitution and establish an independent redistricting commission.[210] The proposed state constitutional amendment would enact a “multistage process” to create an eleven member commission with multiple layers of decision making to ensure independence.[211]

The first stage would require the Auditor General of Illinois to create the Applicant Review Panel (hereinafter “the Panel”) that will select the pool of applicants for the independent commission.[212] Next, the Panel would take applications from the public for membership on the independent redistricting commission.[213] The Panel would then select a pool of 100 potential commission members from the applicants.[214] When choosing the pool of potential members, the Panel would be tasked with ensuring the applicants would act in an independent and ethical manner on the commission.[215] Some of the factors the Panel would look at include: “prior political experience” and “ability to represent the demographic and geographic diversity of the State.”[216] After the pool selection, the leadership of both parties from both houses of the state legislature would have the opportunity to strike up to five members of the pool.[217]

To begin the process, the Panel would do a random drawing to determine the first seven members of the commission: two registered Democrats, two registered Republicans, and three independents.[218] Finally, the leadership of both parties from both houses of the legislature would pick the final four members: two Republicans and two Democrats.[219] Once the commission votes on the final district maps, at least seven of the eleven members must vote for the maps.[220] Of the seven affirmative votes, the amendment requires that two come from the Republicans and Democrats each and two from the independent members.[221] The commission has independent execution power to enact the new district maps into law.[222]

B. Redistricting Commission Analysis

The positive and negative aspects of independent redistricting commissions from across the country can be used to establish a commission to meet the specific needs of Arkansas. The redistricting process in Arkansas includes problems such as: flawed and inherently partisan procedures; minority vote dilution; and severe population deviation between the districts. The following recommendation for the adoption of an independent redistricting commission can solve the problems with the current process of redistricting in Arkansas. The analysis will focus on: (1) membership diversity; (2) voting procedure; and (3) independent authority.

1. Membership Diversity

The current redistricting process in Arkansas places the minority party and racial minorities at a disadvantage. Therefore, an important issue to address when creating an independent redistricting commission for Arkansas is the diversity of the membership. Membership diversity includes: political party, race, and geography.

In terms of political diversity, the main issue is the political make-up of the commission: how many Republicans, Democrats, and independents should be included? All redistricting commissions have an equal balance of Democrats and Republicans.[223] However, the role of independent commission members varies widely depending on the state.[224] Some states have only one independent commission member who has the option, while others have multiple independent members who are allowed to vote.[225]

The current redistricting voting procedure in Arkansas allows the party who controls two of the three seats on the Board to control how district lines are drawn—effectively nullifying any suggestions from the minority party.[226] An independent redistricting commission can be set up to give equal power to both parties.[227] Therefore, a balanced commission should create a more impartial outcome than the traditional redistricting process because a final map would require at least some support from the opposing party.[228] Independent members are also present in many redistricting commissions to prevent gridlock between the parties.[229] The California commission and proposed Illinois commission both include multiple independent members.[230] The addition of independent members forces the partisan commission members to convince individuals with no stake in the fight to vote for their district map plan. However, most independent voters lean towards one party or the other based on their voting record.[231] Therefore, having an odd number of multiple independent members is preferred to a single independent member who likely leans in favor of one party over the other.[232]

In 2011, the Board was comprised of three white males from Eastern Arkansas—this does not represent the full diversity of Arkansas.[233] The California redistricting commission includes racial and geographic diversity as two factors that are used when selecting the commission.[234] The first eight members of the California commission are chosen by a lottery, and the first members select the remaining six delegates by taking into account ethnic and geographic diversity, leading to a diverse commission.[235] The Arkansas redistricting process has led to many issues with minority vote dilution.[236] In order to account for the racial diversity of Arkansas, the race of members should be taken into account during the selection of the commission.

In addition to issues of racial diversity, the commission should also account for geographic diversity. The California commission used geographic diversity as a factor in selecting members which ensured that members would represent all areas of the state.[237] In Arkansas, the Board during the 2011 redistricting cycle was comprised of three members who all grew up in Eastern Arkansas.[238] The Board in 2011 did not represent the full geographic diversity of Arkansas. The lack of diversity in the redistricting process can be remedied by adding geographic diversity as a factor used when selecting the commission.

The Arkansas redistricting commission should be composed of nine members: three registered Democrats, three registered Republicans, and three independents. The commission should include multiple independent seats to keep the commission from falling into partisan gridlock. A lottery selection process should be used to randomly select the first two Republican and Democratic members and one independent member. The lottery system should ensure that members are chosen randomly, instead of the legislature picking the members.

The first five members of the commission should then select the final four members from the remaining pool of applicants: one Democrat, one Republican, and two independents. When the final four members are selected, the members of the commission chosen by the lottery should take into account racial and geographic diversity to ensure the commission reflects the entire population of the state. The lottery system should automatically choose members who are representative of all populations in the state. Therefore, the initial members should select members for political equality as well as racial and geographic diversity. The commission should more effectively represent all populations in Arkansas if it is more diverse in terms of race and geography.

2. Voting Procedure

The voting procedure employed by each redistricting commission dictates to what extent the two political parties and independent commission members must work together. There are two types of voting procedures: (1) simple majority and (2) supermajority. A simple majority commission only requires a majority of the members approve the district map.[239] The supermajority system requires more than a bare majority for the district maps to become law—California requires a majority of votes from each of the three political subdivisions.[240]

The supermajority system is the preferred voting procedure for redistricting commissions. Simple majority commissions only require one additional vote from an independent or opposing party commission member. While simple majority commissions require some cooperation between the parties, it does not require the compromise and cooperation that is necessary to pass a district map in a supermajority commission. With the need to have multiple votes from both political parties and independent members, the incentives encourage the committee to adopt district maps that are fair to both parties and the voters at-large. A simple majority lowers the cost of compromise because only one independent or opposing party member is required to pass the final maps. However, it is more difficult for deals and compromises in a supermajority system. The compromises reached in a supermajority system must apply to a wider variety of commission members than in a simple majority system. The increased cost of cooperation improves the incentives to have a more fair and balanced redistricting plan.

The Arkansas redistricting commission should use a supermajority as the voting procedure. For the final district maps to be adopted, a supermajority comprised of votes from two Republicans, two Democrats, and two independents should be required. This proposal is similar to the supermajority required in the California commission.[241] A supermajority should require a consensus between both political parties and the independent members.

3. Independent Authority

The final factor to evaluate is the independent authority of a commission to pass final district maps. For this factor, there are two potential options: (1) required legislative approval and (2) self-executing. In the first system, redistricting commissions are required to send the final district maps to the state legislature for their final approval of the redistricting plan.[242] If the commission has a self-executing system, then the final district maps approved by the commission are the official district lines.[243]

Without self-executing power, a redistricting commission lacks true independence from the state legislature and is reduced to the role of advisor to the state legislature. The ability for a commission to make their final district maps the law of the land is a complete check on legislative authority and keeps the state legislature out of the process. The Arizona redistricting commission is required to publish their final district maps for public comments and suggestions from the state legislature.[244] However, the ultimate authority to pass the final district maps—with or without the state legislature’s suggestions—remains with the commission.[245] The Washington redistricting commission sends the final district maps to the state legislature for their approval, but the legislature may only change the district lines by two percent of the district’s population.[246] Therefore, the state legislature’s power to change the final district lines is limited in Washington. However, the self-executing power of the other redistricting commissions makes them truly independent.

The Arkansas redistricting commission should have self-executing power. However, like the Arizona commission, the Arkansas commission should submit the final district maps for public comment and suggestions from the state legislature. The commission should then vote on the final district maps where they are free to include the suggestions or not. The public comment requirement should keep the actions of the commission transparent.

V. Conclusion

The current redistricting process is similar to a game of pick-up basketball where one captain picks the players for both teams: the incentive is for the one captain to pick all the best players for his team so that his team will always win. This system is not fair on the basketball court and should not be fair in the redistricting process either. However, redistricting allows politicians to draw the boundaries of their own districts and for those of legislators in their own party. In Arkansas, the redistricting system has led to severe partisanship; extreme district population deviations for political gains; and dilution of minority votes.

Redistricting commissions create an independent body that assumes all apportionment responsibilities, placing a buffer between elected officials and redistricting. Arkansas should adopt an independent redistricting commission through a public ballot initiative to take over redistricting responsibilities from the political branches. The Arkansas commission should be composed of nine members: three registered Democrats, three registered Republicans, and three independents. When selecting members, race and geographic diversity should be used to ensure a diverse commission that represents the entire state of Arkansas. The voting procedure for the commission should be a supermajority with two Republicans, two Democrats, and two independents voting in favor of the final redistricting maps. Finally, the commission should have self-executing power.

If Arkansas voters adopt a constitutional initiative to create a redistricting commission, it would create a forum where diverse voices and perspectives could come together and create a more fair and balanced outcome.[247] The problems that face the current redistricting system show that reform is necessary to bring change to a system that only benefits politicians at the clear detriment of voters.


Notes

[1] The author sincerely thanks Jonathan L. Marshfield, Assistant Professor of Law, University of Arkansas School of Law, for his guidance and valuable insight throughout the drafting of this comment. The author also thanks Colt Galloway, along with the rest of his Note and Comment group, for their help in the editing process. The author finally thanks his family for their continuous encouragement and support throughout this journey.

[2] A situation similar to this hypothetical occurred during the 2012 redistricting cycle. See Jeffers v. Beebe, 895 F.Supp.2d 920, 938 (E.D. Ark. 2012).

[3] Peter Miller & Bernard Grofman, Redistricting Commissions in the Western United States, 3 UC Irvine L. Rev. 637, 640 (2013).

[4] Id.

[5] Id.

[6] Id.

[7] See Ark. Const. art. VIII, §§ 1, 4.

[8] Ark. Const. art. VIII, § 1.

[9] Id. § 4.

[10] About the Process, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/aboutTheProcess/Pages/default.aspx.

[11] See Jeffers v. Beebe, 895 F.Supp.2d 920, 926 (E.D. Ark. 2012).

[12] See id.

[13] See id.

[14] Infra Part II.

[15] Infra Part III.

[16] See Jeffers v. Clinton, 730 F.Supp. 196 (E.D. Ark. 1989).

[17] See generally Jeffers v. Beebe, 895 F.Supp. 2d 920 (E.D. Ark. 2012).

[18] 2010 Population by House Districts-Statewide, Ark. Redistricting, 2011, http://www.arkansasredistricting.org/censusData2010/Documents/2010_House_Variance.pdf.

[19] Nicholas Stephanopoulos, Reforming Redistricting: Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail, 23 J.L. & Pol. 331, 337 (2007) (suggesting a ballot initiative is the most effective method to achieve redistricting reform because it bypasses politicians who have the incentive to retain power over the redistricting process).

[20] Infra Part IV.

[21] Bruce E. Cain, Redistricting Commissions: A Better Political Buffer?, 121 Yale L.J. 1808, 1817 (2012).

[22] See id. at 1825.

[23] Gray v. Sanders, 372 U.S. 368, 381 (1963).

[24] See Thornburg v. Gingles, 478 U.S. 30, 50 n.17 (1986).

[25] See Karcher v. Daggett, 462 U.S. 725, 740-41 (1983).

[26] 369 U.S. 186 (1962).

[27] Id. at 237.

[28] Jeremy Buchman, Drawing Lines in Quicksand: Courts, Legislatures, and Redistricting 13 (David A. Schultz ed. 2003).

[29] See Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1, 18 (1964).

[30] 377 U.S. at 563.

[31] 376 U.S. at 18.

[32] See id; Reynolds, 377 U.S. at 563; J. Gerald Hebert & Marina K. Jenkins, The Need for State Redistricting Reform to Rein in Partisan Gerrymandering, 29 Yale L. & Pol’y Rev. 543, 546 (2011).

[33] See Shaw v. Reno, 509 U.S. 630 (1993).

[34] Id. at 658 (1993). The 12th congressional district sought to bring various African-American communities from across North Carolina into a majority-minority district. Id. At points, the district was only a few miles long and followed the interstate between cities. Id.

[35] Hebert, supra note 31, at 544.

[36] Vieth v. Jubelirer, 541 U.S. 267, 272 (2004).

[37] Id. at 281.

[38] Id.

[39] Arizona State Legislature v. Arizona Independent Redistricting Com’n, 135 S.Ct. 2652, 2658 (2015).

[40] Id. at 2671.

[41] Harris v. Arizona Independent Redistricting Comm’n, 136 S.Ct. 1301, 1307 (2016).

[42] See Jeffers v. Beebe, 895 F.Supp.2d 920, 929 (E.D. Ark. 2012).

[43] 52 U.S.C.A. §10301(a) (West 2017).

[44] Id. §10301(b).

[45] 478 U.S. 30, 50-1 (1986).

[46] Id. at 50 n. 17.

[47] 556, U.S. 1, 18 (2009).

[48] Id. at 18-19.

[49] Hebert & Jenkins, supra note 31, at 549.

[50] Id.

[51] Karcher v. Daggett, 462 U.S. 725, 730-31 (1983). Legitimate state interests include making districts compact, preserving municipal boundaries, avoiding disturbance of cores of previous districts, and avoiding contests between incumbents; any legitimate interest must be nondiscriminatory. Id. at 740 (citing Gomillion v. Lightfoot, 364 U.S. 339 (1961)).

[52] Voinovich v. Quilter, 507 U.S. 146, 161 (1993) (quoting Brown v. Thomas, 462 U.S. 835, 842-43 (1983)).

[53] Id.

[54] Justin Levitt, Where are the lines drawn?, All About Redistricting (2015), http://redistricting.lls.edu/where.php.

[55] Stephanopoulos, supra note 18, at 346.

[56] Ark. Const. art. VIII, § 1.

[57] Just two out of three seats makes a majority. Id.

[58] Justin Levitt, Arkansas, All About Redistricting (2016), http://redistricting.lls.edu/states-AR.php.

[59] Ark. Const. art. VIII, § 1. The power to redistrict U.S. congressional districts remains with the Arkansas General Assembly. About the Process, supra note 9.

[60] Ark. Const. art. VIII, § 1.

[61] Stephanopoulos, supra note 18, at 346.

[62] Bailey v. Abington, 201 Ark. 1072, 1072, 148 S.W.2d 176, 180 (Ark. 1941).

[63] Ark. Const. art. VIII, § 4.

[64] About the Process, supra note 9.

[65] Id.

[66] Id.

[67] See Jeffers v. Beebe, 895 F.Supp.2d 920, 926 (E.D. Ark. 2012).

[68] See id.

[69] About the Process, supra note 9. Though it is difficult to measure the impact of the public comment process, many of the preliminary redistricting maps were made after a few of the early public comment meetings were held. See Events Calendar, Arkansas Board of Apportionment (2011), http://www.arkansasredistricting.org/events/Pages/default.aspx; Draft Senate Maps, Arkansas Board of Apportionment (2011), http://www.arkansasredistricting.org/maps/Pages/draftSenateMaps.aspx. Some of the public comments that were released show public concern for the Governor and Attorney General not considering the opinion of the Secretary of State. Public Comment Documents received by email through June 8, Arkansas Board of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/Public%20Comment%20by%20email%20through%20June%208.pdf.

[70] Ark. Const. art. VIII, § 1.

[71] Id. § 5.

[72] Jeffrey L. Fisher, The Unwelcome Judicial Obligation to Respect Politics in Racial Gerrymandering Remedies, 95 Mich. L. Rev. 1404, 1424 (1997).

[73] SeeBailey v. Abington, 201 Ark. 1072, 1072, 148 S.W.2d 176, 180 (Ark. 1941). (The Arkansas General Assembly retains the power to redistrict Arkansas’ U.S. congressional districts.)

[74] Jeffers v. Beebe, 895 F.Supp.2d 920, 938-39 (E.D. Ark. 2012).

[75] Id. at 928.

[76] Id. at 935-36 (quoting Reno v. Bossier Parish Sch. Bd. 520 U.S. 471, 481 (1997)).

[77] Id. at 938-39.

[78] Jeffers v. Beebe, 895 F.Supp.2d at 938.

[79] Ark. Const. art. VIII, § 1. During the 2001 redistricting cycle, the vote was once again two to three with the Democratic Attorney General and Secretary of State voting for the maps. Levitt, supra note 57. The Republican Governor did not approve the maps. Id.

[80] Jeffers v. Beebe, 895 F.Supp.2d at 938.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Jeffers v. Beebe, 895 F.Supp.2d at 939.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Jeffers v. Beebe, 895 F.Supp.2d at 939.

[91] Id.

[92] Id.

[93] Id.

[94] Id.

[95] The partisan fighting that occurred during the 2011 redistricting cycle could be partially based on the personalities of the members on the Board, but the system is set up in a way that marginalizes the minority political party. During the 2001 redistricting cycle, the Board was comprised of two Democrats and one Republican, and the Democrats voted for the final district maps while the Republican voted against them. Levitt, supra note 57.

[97] See infra Section III.B.1. A district is overrepresented when the population of the district is smaller than the ideal population, leading to individual votes in the overrepresented district counting more than a single vote in an ideal district. See id. Conversely, underrepresented districts have a larger population than an ideal district, and the individual votes in underrepresented districts count less than votes in an ideal district. See id.

[98] Compare Adopted House Matrix, Ark. Bd. of Apportionment (2011) http://www.arkansasredistricting.org/SiteCollectionDocuments/adopted%20house%20matrix.pdf, and Adopted Senate Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/adopted%20senate%20matrix.pdf, with Sec’y of State’s House Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/sos%20house%20matrix.pdf, and Sec’y of State’s Senate Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/sos%20senate%20matrix.pdf.

[99] See Jeffers v. Clinton, 730 F.Supp 196, 198 (E.D. Ark. 1989)

[100] Hebert, supra note 31, at 549.

[101] Id.

[102] Karcher v. Daggett, 462 U.S. 725, 740-41 (1983).

[103] Voinovich v. Quilter, 507 U.S. 146, 161 (1993) (quoting Brown v. Thomas, 462 U.S. 835, 842-43 (1983)).

[104] Id.

[105] See e.g. Colo. Const. art. V, § 46 (Colorado legislative districts cannot have “more than five percent deviation between the most populous and the least populous district”); Iowa Code Ann. § 42.2 (West 2011) (Iowa legislative districts cannot deviate by more than five percent from the ideal population); Mont. Districting and Apportionment Comm’n, Cong. and Legis. Redistricting Criteria (May 28 2010), http://leg.mt.gov/content/Committees/Interim/2011-2012/Districting/Other-Documents/1124RWFA-corrected-criteria-updated-2011.pdf (Montana legislative districts cannot deviate by more than three percent from the ideal population).

[106] Jeffers v. Beebe, 895 F.Supp.2d 920, 938 (E.D. Ark. 2012).

[107] Id.

[108] Compare Sec’y of State’s Senate Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/sos%20senate%20matrix.pdf with Adopted Senate Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/adopted%20senate%20matrix.pdf.

[109] See Adopted House Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/adopted%20house%20matrix.pdf; Adopted Senate Matrix, supra note 106.

[110] Mont. Districting and Apportionment Comm’n, supra note 103.

[111] See Adopted House Matrix, supra note 107; Adopted Senate Matrix, supra note 106.

[112] See Adopted House Matrix, supra note 107; Adopted Senate Matrix, supra note 106.

[113] See Adopted House Matrix, supra note 107; Adopted Senate Matrix, supra note 106.

[115] See Sec’y of State’s Senate Matrix, supra note 106. See also Sec’y of State’s House Matrix, supra note 113.

[116] Compare Adopted House Matrix, Ark. Bd. of Apportionment (2011) http://www.arkansasredistricting.org/SiteCollectionDocuments/adopted%20house%20matrix.pdf, and Adopted Senate Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/adopted%20senate%20matrix.pdf, with Sec’y of State’s House Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/sos%20house%20matrix.pdf, and Sec’y of State’s Senate Matrix, Ark. Bd. of Apportionment (2011), http://www.arkansasredistricting.org/SiteCollectionDocuments/sos%20senate%20matrix.pdf.

[117] See Secretary of States Senate Matrix, supra note 106.

[118] See Adopted Senate Matrix, supra note 106.

[119] See id.

[120] Sec’y of Stateenate Matrixkans, supra note 106; Sec’y of State; ate Matrixkan, supra note 113. (The one district that has a population of deviation greater than three was Arkansas House District Sixty-six, which had a population deviation of only negative 3.04 percent.)

[121] See Adopted Senate Matrix, supra note 106; Adopted House Matrix, supra note 107.

[122] See Mont. Districting and Apportionment Comm’n , supra note 103.

[123] Jeffers v. Clinton, 730 F.Supp 196, 198 (E.D. Ark. 1989).

[124] Id.

[125] Id. at 199-201.

[126] Id. at 205-06.

[127] Id. at 208.

[128] Jeffers v. Clinton, 730 F.Supp at 217.

[129] Jeffers v. Tucker, 847 F.Supp. 655, 657 (E.D. Ark. 1994).

[130] Id.

[131] Id. At 660. “It is widely understood that ‘minorities must have something more than a mere majority even of voting age population in order to have a reasonable opportunity to elect a representative of their choice.’” Smith v. Clinton, 687 F.Supp. 1361, 1362-63 (E.D. Ark. 1988) (quoting Ketchum v. Byrne, 740 F.2d 1398, 1413 (7th Cir. 1984)). The guideline of 65 percent is created by adding to 50 percent an additional five percent to account for younger minority population, five percent for low minority voter turnout, and five percent for low minority voter registration. Id. at 1363. When using voting age population data, a 60 percent African-American majority is used suffices to give a minority group the opportunity to have a representative of their choice. Id.

[132] Jeffers v. Tucker, 847 F.Supp. at 660-61.

[133] Id. at 662.

[134] Id.

[135] Jeffers v. Beebe, 895 F.Supp.2d 920, 938 (E.D. Ark. 2012).

[136] Id.

[137] Id.

[138] Id. at 931.

[139] Id.

[140] Jeffers v. Beebe, 895 F.Supp.2d at 931. (quoting Bartlett v. Strickland, 556 U.S. 1, 15-16 (2009).

[141] Id. at 932-33.

[142] Thornburg v. Gingles, 478 U.S. 30, 51 (1986).

[143] Jeffers v. Beebe, 895 F.Supp.2d at 935.

[144] Id.

[145] Id. at 940.

[146] See Adopted House Matrix, supra note 107; Adopted Senate Matrix, supra note 106; Secy of States Senate Matrix, supra note 106; See Secy of States House Matrix, supra note 113.

[147] See Secy of States Senate Matrix, supra note 106; Secy of States House Matrix, supra note 113.

[148] See Adopted House Matrix, supra note 107; Adopted Senate Matrix, supra note 106.

[149] At first glance, it may appear backwards that a Republican would push for more majority-minority districts than the Democrats. The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2220 n.67 (2003). However, since the 1990s, Republicans have supported concentrating African-Americans (known to be dependable Democratic voters) into a few districts. Id. This strategy leads to the other districts being more likely to elect a Republican. Id.

[150] See id.

[151] Jeffers v. Beebe, 895 F.Supp.2d 920, 940 (E.D. Ark. 2012).

[152] Stephanopoulos, supra note 18, at 331.

[153] See Miller & Grofman, supra note 2, at 651.

[154] See id.

[155] See Cain, supra note 20.

[156] Id. at 1832.

[157] Id. at 1817.

[158] Id. at 1831-32.

[159] See Stephanopoulos, supra note 18.

[160] Id.

[161] Id.

[163] Angelo N. Ancheta, Redistricting Reform and the California Citizens Redistricting Commission, 8 Harv. L. & Pol’y Rev. 109, 114 (2014).

[164] Cain, supra note 20, at 1823.

[165] Id. at 1824-25.

[166] Cal. Gov’t Code § 8252(a)(1)(A) (West 2013).

[167] Id.

[168] Id.

[169] Id.

[170] Cain, supra note 20, at 1825.

[171] Cal. Gov’t Code § 8252(f) (West 2013).

[172] Id. § 8252(g) (West 2013).

[173] Id. § 8252(g) (West 2013).

[174] Cal. Const. art. XXI, § 2(c)(5).

[175] Id. § 2(g).

[176] Id. § 2(i).

[177] Rhonda L. Barnes, Redistricting in Arizona under the Proposition 106 Provisions: Retrogression, Representation and Regret, 35 Ariz. St. L.J. 575 (2003).

[178] Ariz. Const. art. IV, Pt. 2 § 1(3).

[179] Id.

[180] See id.

[181] Id.

[182] Id.

[183] See Ariz. Const. art. IV, Pt. 2 § 1(5), (6), (8), (16).

[184] Id. § 1(5).

[185] Id. § 1(6).

[186] Id. § 1(8).

[187] Id.

[188] Ariz. Const. art. IV, Pt. 2 § 1(16).

[189] Id.

[190] Id. § 1(12).

[191] See id.

[192] Id. § 1 (16)-(17).

[193] Miller & Grofman, supra note 2, at 654.

[194] Wash. Rev. Code Ann. § 44.05.030(1) (West).

[195] Id. § 44.05.030(3) (West).

[196] Wash. Const. art. II, § 43(3).

[197] Id.

[198] Id.

[199] Wash. Rev. Code Ann. § 44.05.100(1) (West).

[200] Id. § 44.05.100(2) (West).

[201] Id.

[202] See id.

[203] Id. § 44.05.100(3) (West).

[204] Rick Pearson, New Push to Change Illinois Remap Process Begins, Chicago Trib. (Apr. 28, 2015), available at http://www.chicagotribune.com/news/local/politics/chi-illinois-redistricting-reform-effort-starts-over-20150428-story.html.

[205] Ill. Const. art. IV, § 3(b).

[206] Id.

[207] Id.

[208] The tie-breaker measure was used in 1981, 1991, and 2001. Pearson, supra note 201.

[209] Id.

[210] Independent Map Amendment, Indep. Map Amend. (2015), http://www.mapamendment.org/index.html.

[211] The proposed amendment is similar to a redistricting amendment from the 2014 election cycle. Pearson, supra note 203.

[212] Petition for Constitutional Amendment, Indep. Map Amend. (2015), available at http://www.mapamendment.org/uploads/mapamendment/documents/petition.pdf.

[213] Id.

[214] Id.

[215] Id.

[216] Id.

[217] Petition for Constitutional Amendment, supra note 211.

[218] Id.

[219] Id.

[220] Id.

[221] Id.

[222] Petition for Constitutional Amendment, supra note 211.

[223] See Ariz. Const. art. IV, Pt. 2 § 1(3); Wash. Rev. Code Ann. § 44.05.030(1), (3) (West); Cal. Gov’t Code § 8252(f), (g) (West 2013); Petition for Constitutional Amendment, supra note 211.

[224] See Ariz. Const. art. IV, Pt. 2 § 1(3); Wash. Rev. Code Ann. § 44.05.030(1), (3) (West); Cal. Gov’t Code § 8252(f), (g) (West 2013); Petition for Constitutional Amendment, supra note 211.

[225] Arizona has one independent, voting member. Ariz. Const. art. IV, Pt. 2 § 1(3). Washington has one independent, non-voting member. Wash. Rev. Code Ann. § 44.05.030(1), (3) (West). Both California and Illinois’ amendment use this system. Cal. Gov’t Code § 8252(f), (g) (West 2013); Petition for Constitutional Amendment, supra note 209.

[226] See Ark. Const. art. VIII, § 1.

[227] See Cal. Gov’t Code § 8252(f), (g) (West 2013).

[228] See id.

[229] See id.; Petition for Constitutional Amendment, supra note 209.

[230] Cal. Gov’t Code § 8252(f), (g) (West 2013); Petition for Constitutional Amendment, supra note 209.

[231] Cain, supra note 20, at 1832.

[232] The California redistricting commission includes four independent members. Cal. Gov’t Code § 8252(f), (g) (West 2013). While the proposed Illinois plan includes three independent members. Petition for Constitutional Amendment, supra note 209.

[233] See Mike Beebe, Ballotpedia, https://ballotpedia.org/Mike_Beebe; Dustin McDaniel, Ballotpedia, https://ballotpedia.org/Dustin_McDaniel; Mark’s Biography, Ark. Sec’y of State (2015), http://www.sos.arkansas.gov/aboutOffice/Pages/biography.aspx.

[234] Cal. Gov’t Code § 8252(g) (West 2013).

[235] Karin MacDonald, Adventures in Redistricting: A Look at the California Redistricting Commission, 11 Election L.J. 472, 479-80 (2012).

[236] See supra pp. 17-21.

[237] Ancheta, supra note 160, at 121.

[238] Governor Beebe graduated from Newport High School. Mike Beebe, supra note 230. Attorney General McDaniel grew-up in Jonesboro, Arkansas. Dustin McDaniel, supra note 230. Secretary of State Martin is from Hughes, Arkansas. Marks Biography, Ark. Sec’y of State (2015), http://www.sos.arkansas.gov/aboutOffice/Pages/biography.aspx.

[239] Both Arizona and Washington use a simple majority system. Ariz. Const. art. IV, Pt. 2 § § 1(12); (16)-(17); Wash. Rev. Code Ann. § 44.05.100(2), (3) (West).

[240] Cal. Const. art. XXI, § 2(c)(5). The proposed Illinois commission requires a supermajority but not a majority from all three political subdivisions. Petition for Constitutional Amendment, supra note 209.

[241] Cal. Const. art. XXI, § 2(c)(5).

[242] Washington requires final legislative approval. Wash. Rev. Code Ann. § 44.05.100(2), (3) (West).

[243] Both California’s state constitutional amendment and Illinois’ proposed amendment are self-executing. Cal. Const. art. XXI, § 2(g); Petition for Constitutional Amendment, supra note 209. The Arizona constitution requires the state legislature make final suggestions, but the commission has the ultimate power to pass the final district maps with or without the legislature’s suggestions. Ariz. Const. art IV, Pt. 2 § 1(12); (16)-(17).

[244] Ariz. Const. art. IV, Pt. 2 § 1(12); (16)-(17)

[245] Ariz. Const. art. IV, Pt. 2 § 1(12); (16)-(17).

[246] Wash. Rev. Code Ann. § 44.05.100(2), (3) (West).

[247] The Arkansas Constitution allows for public ballot initiatives to be used for the adoption of constitutional amendments. Ark. Const. art. V, § 1. Other states have used public ballot initiatives to pass constitutional amendments creating independent redistricting commissions. See Cain, supra note 20, at 1823. Therefore, a constitutional amendment through a public ballot initiative should be the preferred method for Arkansas adopting an independent redistricting commission. Even though the method and probability of passing a ballot initiative is an important part of creating the commission, this paper is limited to the shortcomings of the current redistricting process in Arkansas and design of an independent commission that should remedy the current problems.

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