With three-fifths supermajorities in the legislature, New Jersey Democrats are pushing a reform to New Jersey's five-decade-old bipartisan legislative redistricting commission, but it's far from clear that the current proposal would be an improvement over an existing process. Indeed, Democratic Gov. Phil Murphy and former Attorney General Eric Holder, who leads the National Democratic Redistricting Committee, have come out against the plan, as have numerous good-government groups and progressive organizations.
Currently, New Jersey has two separate but similar bipartisan commissions for congressional and legislative redistricting, and this proposal would alter the latter one. Under the existing system, each major party's chair appoints five members, and when they inevitably deadlock over whom to choose as a tiebreaking 11th member, the state Supreme Court's chief justice appoints the tiebreaker.
With political appointees controlling the process, this system has effectively yielded a coin-flip as to which party gets to draw the maps, which have typically been modest gerrymanders under the guise of protecting incumbents. The new proposal would shift most of these appointments to each party's legislative leadership, which wouldn't alter the partisan control over the commission but could determine which incumbents get favored.
However, the most controversial aspect of the proposal is that it uses a purported partisan fairness formula that potentially opens the door to maps that are considerably flawed. Partisan fairness by itself is a laudable goal, and any truly democratic two-party system should try to ensure that the party that wins the most votes also wins the most seats, but the particular approach required by this plan could wind up producing district maps that are anything but fair, as we'll explain below.
The Democratic proposal uses what's called "partisan symmetry," whereby no more than half of the districts can be more Democratic than the result in the average district as measured by an average of the results in elections for president, Senate, and governor over the preceding decade. Furthermore, at least 10 of the 40 districts must be within a 10-point margin of the average result. (Both chambers use the same map, with the Assembly electing two members per district and the Senate one.)
What this means in practical terms is that if the average district voted 53-47 Democratic, for example, then at least 10 districts would have to range from no more than 58-42 Democratic to 52-48 Republican. And for every seat in that range that leans toward one party by a particular amount relative to the average district, there must be a corresponding one that leans toward the other party by the same distance from the average to maintain symmetry.
By themselves, these requirements could be used to ensure that maps are fair in two respects: one, that the party with the most votes will typically win a majority of seats, and two, that increases or decreases in a party's statewide support will lead to reasonably commensurate increases or decreases in seats.
However, this current proposal still lacks two critical ingredients that any truly fair redistricting system ought to have, and a wide range of interests—including Republican legislators, nonpartisan reformers, and even liberals—have voiced their hostility to it.
First, while this proposal sets a floor on the number of supposedly "competitive" districts a map must have, it doesn't set a ceiling. That might sound counterintuitive—after all, wouldn't a greater number of competitive districts be a good thing?—but in a state like New Jersey that leans heavily toward one party, the standard of competitiveness set out by this plan could lead to perverse results.
For instance, instead of drawing just 10 districts so that they fall within 10 points of the average result (as mandated), Democrats could draw 20 such districts, with those surplus seats all hovering around a 55 percent Democratic performance, similar to the support they typically earn overall in this blue-leaning state. That would let Democrats spread their voters around with maximum efficiency—in other words, a classic partisan gerrymander.
While Republicans could occasionally capture these seats in a strong year for their party where the GOP wins the most votes statewide, Democrats would be likely to carry them in any normal election, allowing them to win far more seats than their overall share of the statewide vote. In addition, the creation of an excess of "competitive" districts could lead to black and Latino communities (which often represent concentrated numbers of Democratic voters) getting split apart.
Second, regardless of which party's plan the tiebreaker picks, this system does nothing to prevent powerful individual lawmakers from the favored party from choosing their own voters to stave off challenges in primaries or general elections. That’s directly at odds with the goals of truly independent redistricting.
In late November, a state Senate committee voted along party lines to advance the proposed constitutional amendment, which would need either three-fifths of the vote in one session of the legislature, or simple majorities both before and after the 2019 elections, to make it onto the 2020 ballot in time for redistricting ahead of the 2021 elections. Consequently, even if Democrats ultimately pass this plan, voters would still have a chance to block it.
Like other existing bipartisan commissions where elected officials get to hand-pick members, New Jersey needs a fairer alternative to its decennial bipartisan incumbent-protection racket. However, this proposal in its current form is not the way to go about doing that.