How the failure of local governments to redistrict in Indiana undermines democracy
The Equal Protection Clause of the U.S. Constitution amendment XIV requires substantial equality of population among the various districts, so that a vote of any citizen is approximately equal in weight to that of any other citizen. Vigo County Republican Central Committee v. Vigo County Commissioners (U.S. District Court, Terre Haute, IN, Oct. 1993)
The US Constitution and Indiana state law require local governments to redistrict after every decennial census. Yet, we found that many Indiana county councils and school boards that are required to redistrict failed to do so following the 2010 census, or did so improperly. Indeed we found evidence that many of these councils and boards have been illegally constituted for decades. As a result, hundreds of thousands of Hoosiers have been and continue to be deprived of their constitutional right to equal representation.
Although local governments do not receive the attention that state legislatures and the US Congress receive, they have enormous impact on the lives of those living within their jurisdictions. They decide which local roads are paved and repaired, whether and how garbage is collected, and who will be hired as school superintendents, principals, teachers and coaches. They run police departments and jails; provide water and sewage treatment; and often maintain parks, reservoirs, and sports facilities. In doing so, they spend billions of dollars of taxpayer money annually.
Indiana state law is explicit about the necessity to redistrict every 10 years and about the requirements that districts be compact (to avoid gerrymandering) and nearly equal in population. Statutes mandating the redistricting of county councils and elected school boards that use single-member electoral districts read in part (with emphasis added):
IC 36-2-3-4 [county councils]
Election of fiscal body; division of county into districts; single-member district criteria
(d) Single-member districts . . . must:
(1) be compact, subject only to natural boundary lines . . . ;
(2) not cross precinct boundary lines;
(3) contain, as nearly as possible, equal population; and
(4) include whole townships, except when a division is clearly necessary to accomplish redistricting under this section. . . .
(e) A division shall be made . . . during the first year after a year in which a federal decennial census is conducted . . . .
IC 20-23-8-8 [school boards]
(4) If the [school board] plan provides for electoral districts, where a member of the governing body is elected solely by the voters of a single district, the districts must be as near as practicable equal in population. The districts shall be reapportioned and their boundaries changed, if necessary, by resolution of the governing body before the election next following the effective date of the subsequent decennial census to preserve the equality by resolution of the governing body.
Yet these legislative requirements are regularly flouted in Indiana.
Take the North Putnam School Corporation, for example, which completely ignores the requirement that districts be approximately equal in population. North Putnam encompasses the six northernmost townships in Putnam County with a total population of just over 10,000 people. The school corporation has a seven-person board that controls an annual budget of around $16,000,000. One board member is elected at-large but the other six members each represent--and are elected solely by--residents of their own township. The smallest of these townships, Russell, has only 823 residents, while the largest, Floyd, has 4,011 residents. Thus, Russell residents have five-times as much say over school board decisions as Floyd residents. The school board refused to redistrict prior to the November 2011 election although the matter was brought to their attention repeatedly. In response, the ACLU has filed a federal lawsuit on behalf of a Floyd Township resident to force the North Putnam school board to redistrict.
Or consider the Bartholomew County Council, which just as brazenly flouts the requirements that districts be compact and that they not cross precinct boundary lines. Bartholomew County’s third council district (in blue) has two large pieces connected only by a long, narrow stretch of road, and numerous smaller pieces that are wholly contained within other districts. Furthermore, four precincts are split between Districts 3 and 4 and one between Districts 1 and 2. Yet Bartholomew’s county commissioners decided to ignore their responsibility to redistrict the council in 2011.
In February 2012, the Indiana Association of Cities and Towns held a panel on “Mandatory Municipal Redistricting” as part of their annual statewide IACT conference. Indiana municipalities across the state had held elections in 2011 and thus were not due to redistrict until 2012. (Elections for county councils and school boards, in contrast, are taking place in 2012 and thus they were required to redistrict in 2011.) The three panelists on redistricting at the IACT conference—the Speaker of the Indiana House of Representatives, the Republican co-chair of the Indiana Elections Division, and the state’s leading redistricting lawyer—left no doubt that redistricting was not only mandatory but also had to follow all facets of Indiana law and federal and state legal precedents. The IACT followed up with timelines, guidelines, practical tips and other assistance to ensure that all municipal governments in the state redistricted and did so properly. In sharp contrast to our experience with county councils in 2011, every city and town official we contacted in 2012 was aware of the redistricting requirement and told us that they were in the process of complying.
In 2011 the Indiana Elections Division offered guidance to counties that chose to redistrict, but steadfastly refrained from advising them that they had to do so. Indeed, several county and election clerks who understood that redistricting was mandatory reported to us that they felt undermined by the Elections Division, which informed them that neither the Elections Division nor county clerks were supposed to be “redistricting police.”
The situation with school boards was complicated by the fact that no one—not the Elections Division, not the Department of Education and not the Indiana School Board Association—knows which school boards in the state have single-member electoral districts (in which case redistricting is mandatory) and which have residential districts (in which case it isn’t). In any case, neither the Elections Division nor the Department of Education deemed it their responsibility in 2011 to alert school corporations of the necessity to redistrict if they had single-member districts. The School Board Association did send an email to school boards on the matter in late in 2011, but only after a legislator had sent all school corporations an email alerting them to the necessity to redistrict after we had testified about the problem before an interim legislative committee in October 2011. In any case, the email from the School Board Association came too late for school boards to complete the redistricting process by the statutory deadline of Dec. 31.
We have spent the past two years talking to county clerks, commissioners, council members and relevant school officials about whether they were planning to redistrict and, if not, why not. For the first few months, most officials seemed genuinely surprised to find out that they were required to redistrict. That is not surprising since many of their counties and school boards hadn’t redistricted in decades and all institutional memory of redistricting had long since been lost.
Once informed, many of them did redistrict, but many of them did not. Redistricting is a painful process for elected officials. It requires them to reallocate constituents and, in worst-case scenarios, to pit two or more elected officials against one another. Thus, the most common reasons cited for not redistricting were that officials didn’t want to do it and no one was forcing them to do so.
Other less edifying reasons exist as well—including deliberate efforts to make sure that underrepresented groups remain that way. For example, one reason that members of the North Putnam School Board resisted redistricting despite having one district, Floyd, with five times the population of another district is that the rapidly growing population of Floyd consists mostly of people new to North Putnam, attracted to Floyd Township by its attractive human-made Heritage Lake. Fear that these newcomers will overwhelm the elections and permanently alter the longstanding character of school and community kept the board from either redrawing district lines or switching to residential districts until after they were sued by a resident of Floyd Township in October 2012. It is perhaps worth noting that no one objected to outsiders in the school corporation when a succession of student-athletes from Floyd Township led the North Putnam High School football team to two state championship finals.
Federal and state courts have shown no tolerance for such concerns over the past half-century, insisting instead on implementing the principle of one-person-one-vote through the mechanism of redistricting based on equal population. Those responsible for local government redistricting should not lull themselves into thinking that they will prevail in court if their failure to redistrict is challenged. They should learn from the bitter experience of the Vigo County commissioners (all of whom happened to be Democrats) who were sued in 1993 by the Vigo County Republican Central Committee. Not only did the plaintiffs win, the judge also accepted the Republican Central Committee’s redistricting plan over the one the commissioners belatedly produced and the commissioners were ordered to pay the plaintiff’s legal expenses.
Illegally-constituted county councils and school boards run other risks. Given that they had ample notice that they ought to have redistricted, courts might entertain a challenge to results of the 2012 elections in jurisdictions in which the lines of districts are illegally drawn, thus conceivably requiring new elections. Or they might allow challenges to decisions made by those illegally-constituted boards or councils.
To prevent this situation from reoccurring in future decades, we recommend that the General Assembly pass legislation that would
- Require the Indiana Department of Education and/or the state Elections Division to maintain public lists of local governments that are required to redistrict and the years in which they are required to do so.
- Direct the Elections Division to provide oversight of the local government redistricting process, including provisions for public notice of any failure to meet redistricting deadlines.
- Maintain an easily searchable database and GIS maps that would allow private citizens , journalists and other interested persons to determine whether local governments have met their redistricting obligations. No other group or individual should have to go to the time, effort and expense that we have had to go to in order to obtain this information.