Newspaper column: How to redraw political districts after Census?

An effort has been launched to make the boundary changes to political districts after the 2020 Census less subject to manipulation by the major political parties.

Earlier this month, the League of Women Voters Nevada filed a constitutional amendment with the Secretary of State that would create a bipartisan commission to redraw political districts rather than the state Legislature, which currently is dominated in both chambers by Democrats, according to the Nevada Independent.

The amendment states that its purpose is “to end the partisan practice of gerrymandering by establishing a bipartisan Independent Redistricting Commission to oversee the mapping of fair and competitive electoral districts for the Nevada Senate, Nevada Assembly, and Representatives to the U.S. House of Representatives.”

The term gerrymander comes from a political cartoon showing a contorted political district — created by the signature of Massachusetts Gov. Elbridge Gerry in 1812 — to appear to be in the shape of a salamander.

The bid to amend the state Constitution comes on the heels of a 5-4 U.S. Supreme Court ruling in June that said the federal courts have no role in preventing gerrymandering. The court said that, while partisan redistricting might seem unjust, the Constitution does not give the courts the power to counteract. The court said there are other remedies.

In fact, the court in 2015 ruled that commissions such as the one contemplated by the League of Women voters are constitutional. Even though the Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature …” the justices in a 5-4 ruling said Arizona could create such a commission by ballot initiative.

Justice Ruth Bader Ginsburg wrote in the majority opinion: “The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have ‘an habitual recollection of their dependence on the people.’ In so acting, Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’ The Elections Clause does not hinder that endeavor.”

Such commissions have been created in 21 states so far.

One problem is that any panel of human beings will bring to such a commission their own biases and objectives. Additionally, while lawmakers are accountable to the voters at the next election, not so such commissioners.

The League contemplates a panel made up of seven members, one appointed by the state Senate majority leader, one by the state Senate minority leader and one each by the Assembly majority and minority leaders. Those four would then appoint three commissioners who would be unaffiliated with either of the major parties.

If enough initiative signatures are obtained, the measure would have to be approved by voters in 2020 and 2022 and lines would be redrawn in 2023.

The problem may be less with the makeup of the panel than the incomprehensible number of special interests and demographics and objectives outlined by the amendment. It states, “The Commission will ensure, to the extent possible, that the electoral districts comply with the United States Constitution, have an approximately equal number of inhabitants, are geographically compact and contiguous, provide equal opportunities for racial and language minorities to participate in the political process, respect areas with recognized similarities of interests, including racial, ethnic, economic, social, cultural, geographic, or historic identities, do not unduly advantage or disadvantage a political party, and are politically competitive.”

Try mucking out all those stables, Hercules.

May we be so bold as to suggest an alternative? Rather than creating a commission, put out for bid a contract for computer programmers to create a software that would begin at one corner of the state and then — for creating U.S. House seats — encompass one quarter of the state population, then another quarter until four districts of equal population and contiguous districts are drawn. Repeat the process for the 21 state Senate seats and the 42 Assembly seats. The chances of that fairly including members of all political parties and minorities and special interests is just as likely as what any commission could conjure.

No matter how it is done, someone will squawk.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Is Nevada being unconstitutionally awed into obedience to the feds?

Over the years the battle to grant states greater control over the vast swath of federal public land have ebbed and flowed. There have been court battles, mostly lost. There have been legislative resolutions and bills, mostly ignored, as well as numerous congressional hearings and testimony.

More recently there have been instances of civil disobedience at the Bundy Ranch in Bunkerville and the Malheur National Wildlife Refuge in Oregon that have resulted in dozens of federal indictments for conspiracy and assault.

All for naught. To this day the federal agencies control 50 percent of the land in the West and 85 percent of Nevada.

But Ruby Valley cattle rancher Clifford Gardner may have unearthed an overlooked aspect of the U.S. Constitution that speaks to the core issue.

Clifford Gardner (Elko Daily Free Press photo)

Gardner is intimately familiar with the legal and moral arguments, having waged his own losing court battle over federal land grazing rights, or the lack thereof.

In 1992, a fire burned two of Gardner’s allotments. The Forest Service told him to not graze in 1993 and 1994, but Gardner turned out cattle in the spring of 1994.

The legal battle ended with a ruling from the U.S. 9th Circuit Court of Appeals in 1997, saying, “Gardners contend that, while the United States may have received the land in question from Mexico in the Treaty of Guadalupe Hidalgo in 1848, the United States was entitled only to hold the land in trust for the creation of future states, and was not authorized to retain the land for its own purposes. After Nevada became a state, Gardners argue, all of the public lands within the state boundaries reverted to the state of Nevada.”

The liberal court dismissed that claim out of hand, saying “all nongranted lands previously held by the Government of Mexico passed into the federal public domain.”

It also dismissed his argument that all states are supposed to be admitted to the Union on an equal footing with the original states. The judges said the Equal Footing Doctrine only applies to political standing and sovereignty, not economic equality.

The court held that the Property Clause gives Congress the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Another section of the Constitution states that Congress has exclusive authority “over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …”

“What I’ve learned is that when they wrote that clause into the Constitution that during discussion they said very clearly that their greatest fear was that should the federal government ever own vast amounts of land in a state it would awe the state into obedience,” Gardner said in a recent interview. “That argument, original intent, I would call it, has never been presented either back in Sagebrush Rebellion I or Sagebrush Rebellion II. So I feel that is quite important.”

Gardner spells out his arguments in a 46-page white paper that he hands out when speaking to groups on this land issue.

As the nation expanded and acquired more unappropriated lands, Gardner explains, it was the practice that the government would dispose of the land, but as time went on this became less the case.

“Over the years, as I come back and look at this, I come to realize we had a lot more good arguments against the federal government’s continued control of these lands,” Gardner says, noting that one of them is how federal agencies can claim so much of the land in Nevada and not afford people their constitutional rights?

Gardner relates that James Madison wrote in 1787 that Elbridge Gerry raised concerns about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislatureof the state.” It passed unanimously.

So, if the drafters of the Constitution deemed it necessary to prevent Congress exerting undue influence by purchasing land, is it any less undue influence by retaining 85 percent of the land in a given state?

With the exception of the Nevada Test Site, few of the federal land acquisitions have been with the consent of the Legislature.

A version of this column appeared a year ago in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.