Analysis: How Better Boundaries will fundamentally change redistricting in Utah

A number of readers have inquired how it can be that if the Utah Constitution gives to the Legislature the responsibility of redrawing U.S. House and legislative districts every 10 years, then how can the Better Boundaries citizen initiative on November’s ballot set up an independent redistricting commission?

Couldn’t the Legislature just ignore what the commission does and adopt it’s own redistricting plan – as it has after every Census since statehood in 1896?

I’ll attempt to explain how the initiative’s strict nonpartisan redistricting rules corners legislators – especially the majority Republicans – into excluding partisan redistricting.

But bear with me, as the restrictions are many. You can read the initiative language yourself here.

Broadly speaking, the initiative prohibits the seven members of the Utah Independent Redistricting Commission from considering any partisan information, including voting patterns, voting records, party membership rolls, where incumbents live, and such, in redrawing districts.

The commission MUST only consider population equality; city, town and county boundaries; geographic features; and other nonpartisan information.

Let’s start at the beginning.

If passed by voters in November, before the 2021 redistricting takes place a seven-member independent redistricting commission will be formed, consisting of:

  • One person selected by the governor (now a Republican).
  • One person picked by the Senate president (now a Republican).
  • One person chosen by the House speaker (now a Republican).
  • One person selected by the Senate minority leader (now a Democrat).
  • One person picked by the House minority leader (now a Democrat).
  • One person picked by the Senate president, House speaker and members of majority leadership in both houses.
  • One person picked by minority leaders in the House and Senate.

The last two picks above CANNOT be clearly partisan folks – they can’t have voted in the previous five years in a party primary, nor been a party delegate or otherwise identified with a political party. In other words, they must be an independent voter.

OK, this makes the commission (as of today), officially three Republicans, two Democrats, and two independents.

In reality, those picking these folks would likely know that it would be 4-3 Republicans over Democrats, or at least leaning that way, for the “independent” voter-commissioners may have inclinations one way or the other.

No commissioner can be (for the previous five years) a lobbyist, candidate or officeholder, party official, run a PAC or political campaign, appointed by the governor to a public post, employed by Congress or the Legislature.

Each commissioner must swear that they will not help any person or political party.

The key to this “nonpartisan” process is that the commissioners would be bound by law in what they can and can’t consider:

  • First among these restrictions is that the commissioners must follow city or town boundaries wherever possible.
  • Second is that they must follow county boundaries wherever possible.

Then they must consider transportation routes, natural boundaries, communities of interest, neighborhoods and such.

What they CAN’T consider is political voting patterns, where an incumbent may live or any other political information.

The commissioners “can’t favor or disfavor any particular person, group or political party.”

It will take five – and this is key – votes for the commission to adopt any redistricting plan.

That means, in reality, it will take at least one Democrat and one independent-voter commissioner to vote for a plan – restricting the Republicans’ control of the commission.

One to three plans must be submitted to the Legislature. If the commission can’t come up with a five-vote plan, then at least three plans are sent to the Chief Justice of the Utah Supreme Court, for him or her to make a recommendation to the Legislature.

From the plans coming to it, the Legislature (now run by Republicans) must pick one plan and enact it WITHOUT any amendments.

If the Legislature adopts any other plan, it must,  within seven days, give a detailed written explanation to citizens why any of the up to three commission plans FAILED to meet the commission’s restrictive redistricting policies, and say why the Legislature’s alternative plan is BETTER in meeting the commission’s restrictive redistricting.

Most likely, any plan that the GOP Legislature came up with would not be better in nonpartisanship.

For example, for generations heavily Democratic Salt Lake City has either been split up two or three ways in U.S. House districts, or the city has been lumped into heavily Republican areas, to make that U.S. seat Republican.

It likely would be hard for the GOP-controlled Legislature to draw up a “nonpartisan” redistricting plan that still kept city Democrats with a Republican House member – as is now the case in the 2nd Congressional District.

But what if the Republican Legislature still dumps all the commission’s plans and adopts one of their own anyway?

Well, any citizen can immediately sue, and a judge could decide if the Legislature’s plan is really better – following the commission’s nonpartisan rules – than a commission-approved plan.

And in the lawsuit, the taxpayers would have to pick up attorneys fees, the cost of plaintiffs’ expert witnesses or computer work – everything.

Finally, if a legislative redistricting plan – through court hearings – really is better than the commission-approved plans, then the Legislature can adopt it.

Now, GOP lawmakers and party advocates may claim that since the state Constitution gives the final authority of redistricting to the Legislature, the whole citizen initiative Better Boundaries in unconstitutional.

However, the U.S. Supreme Court has already ruled that similar “independent” redistricting commissions in other states – who recommend to the Legislature, even if the Legislature is tightly bound to adopt the recommendation – are constitutional.

The latest poll by Dan Jones & Associates found:

  • All Utahns support the Better Boundaries initiative, 55-20 percent with 27 percent undecided.
  • Republicans support the initiative, 49-24 percent with 27 percent undecided.
  • Democrats support it, 71-11 percent with 18 percent undecided.
  • And political independents support it, 58-14 with 28 percent undecided.

If a majority of voters approve the initiative in November, the commission will redraw boundaries for elections in 2022.