SALT LAKE CITY — In 2018, Utah voters narrowly passed a proposition creating an independent redistricting commission that will recommend redistricting maps to the Utah State Legislature.
The propositions, however, are only suggestions — and according to Utah's Constitution, the state Legislature draws the final boundaries. If legislators wanted to, they could ignore the redistricting commission's recommendations altogether.
So, what is the role of the redistricting commission, and will the Utah Legislature use its recommendations? What incentives does the Legislature have to take the commission's maps seriously?
The commission's limits
"What we did with that referendum is we essentially created this advisory committee, but it really is advisory," said Matthew Burbank, a political science professor at the University of Utah. "Anything that they do does not have the force of law."
"All they can really do is to say, 'Here's how we think these lines ought to be drawn' and give their reasons, and the state legislature can look at those and they can say, 'Hey, that looks good. We're going to adopt that; we're going to vote on this,'" Burbank explained.
Utah's state constitution gives the sole power for drawing congressional lines to the Legislature.
"Without amending the constitution, the best you could do is kind of have an advisory," Burbank said. A proposition like the one passed in 2018 isn't enough.
"We do have this kind of dual-track process going on, where the legislative redistricting committee is going to do their own set of public hearings and draw their own set of maps, and then they'll receive the map from us," said Rex Facer, chairman of the state's independent redistricting commission.
"What we hope is that the public has engaged with us as we go through this very robust kind of outreach campaign — that the public will see our maps as being fair, and that they'll have an expectation that the Legislature will then treat those maps with respect," Facer explained.
"But, ultimately, it's just that kind of public sense of accountability, and the expectation of the public that will hold the Legislature accountable," Facer concluded. "The real accountability comes from the voters at the ballot box."
The real accountability comes from the voters at the ballot box.
–Rex Facer, chairman of Utah's independent redistricting commission.
Will the Legislature listen?
"What we're likely to see in this process is the independent commission is going to draw lines, the state Legislature is going to draw lines, and then ultimately what happens is that whatever the state Legislature comes up with is going to be what they vote on and what they accept," Burbank said.
Republican lawmakers hold the majority in the Utah House and Senate, and that position has allowed Republicans to create districts that they see as being advantageous to them during elections, Burbank explained.
"If they see their own lines as being more beneficial to their elections, and the elections of members of Congress, and helping Republicans more, that's what they're going to do in all likelihood," he continued. "Those are the lines that are going to get voted on, that are going to be approved."
Utah Democratic Party leader Jeff Merchant agreed.
"The Legislature is going to be doing their own work, without even knowing what the results of the independent redistricting commission's maps are," he said, noting that the delay in 2020 Census data tightened the redistricting schedule.
"The Republican Legislature time and time again loves to talk about how the political power resides in the people of the state of Utah," Merchant continued. "The people of the state of Utah were given an option, and they created an independent redistricting commission in 2018 so that there could be fairness and accountability and the process of creating communities of interest in their own in their own legislative districts ... so the incentive is that they actually put their money where their mouth is."
Don't count on legal recourse
If the independent redistricting committee's maps do get rejected in favor of the Legislature's, there's one option left for recourse: a lawsuit.
But the odds of a successful lawsuit don't look good.
"It might be possible that that has an impact," Burbank said of a lawsuit to challenge the districts, "But courts are generally reluctant to wade into this, because courts generally see this as a political question."
"A voter could make the argument that they're disadvantaged by being in one district or the other in such a way that they would have standing to make that lawsuit work," Burbank explained, but the violation would have to be extreme and there could be little alternative explanation for the boundary lines.
"If you weaken the power of communities of racial minorities, then you're really inviting a lawsuit," he said, referencing national precedent, "but again, that's generally not what we're gonna see in Utah, simply because it's a state which is overwhelmingly white."
"If they don't approve our maps, then the only thing that the voters have access to is to hold them accountable at the ballot," Facer agreed. "Unless they do something that is egregiously a violation of the law — and I'm confident that they won't do that, because they have good staff people that are going to help them understand kind of the basic parameters of one person, one vote and all of those kinds of rules that the courts are going to hold all of our maps to."
However, there are incentives to listen to the independent redistricting commission.
"I think the independent commission can essentially make the moral argument," Burbank said. "That moral argument might matter some if public opinion really gets behind a different set of lines."
A commitment to community feedback
Without final maps, it's impossible to guess where final redistricting lines will be, and how much influence the independent redistricting commission will wield in the process.
But until then, the commission and the state's Republican Party are looking forward to a good-faith process that includes the people of Utah.
"I think that the fundamental thing we're trying to do is to be transparent to the public, to engage with the public so that we get their input as we draw these lines, so that they know that they've been heard — and we have lines that in the end, people see as being fair and just," Facer said of his hopes for the redistricting process.
"We're going to communicate as best we can, and I'm going to urge communication between all sides of the party — and not just the party, but the state as well," said Carson Jorgensen, the newly elected head of the Utah Republican Party.
"I think we're just looking forward to a fair drawing of these maps, and we're going to do what's best and help people to do what's best for the state of Utah and, and do our best to be as fair as we can," he concluded.
"This is the first time ever that we'll have a commission that will help provide a recommendation to the legislature — and not only that, we gave them a million dollars to help facilitate it," said Mark Thomas, who is the chief of staff for Senate President Stuart Adams. "I think that showed a commitment there that we can get viewpoints from all different directions."
"This is a big deal — for everyone — not just legislators, but the people that are impacted for the elections process," Thomas said, noting that he wants the vigorous feedback process to make sure "that this is done in a way that people feel the Legislature was able to take input and come up with the best decision that they can."
"One of the things that we want to understand is, what do the citizens view as community?" Facer said. "We can try and treat those with respect and try and maintain those communities as much as possible within a single voting district where that makes sense. So, it's going to be critical that we have engagement from the public."
Facer also noted that the commission is soon launching a website, where Utahns will be able to draw their own maps and submit them for consideration.