Equality by lot

Election Law Blog writes:

Bagenstos, “Lottocracy as a Protector of Democracy? Sortition, Expertise, and the Michigan Independent Citizens Redistricting Commission”

Forthcoming article in the Wisconsin Law Review by Sam Bagenstos (Michigan):

A growing body of democratic theory contends that sortition—the selection of decisionmakers by lot rather than election—can strengthen democratic governance, particularly by defending the popular will against subversion by entrenched political insiders. Yet the sortition literature has struggled to answer a persistent objection—that randomly selected citizens lack the expertise to resolve the factually and legally complex questions that modern governance demands, and will therefore either flail or be captured by the very experts on whom they must rely. Advocates too often wave this concern away with slogans (“experts should be on tap, not on top”) or bury it under implausibly elaborate institutional designs.

This essay uses the first redistricting cycle of the Michigan Independent Citizens Redistricting Commission (MICRC) as a case study to examine these questions. Created by a 2018 citizen-initiated constitutional amendment, the MICRC is the most strongly sortition-based redistricting body in the United States. Michigan voters gave it final authority to adopt districting plans—rejecting arguments that an unelected, unaccountable body of “neophytes” could neither be democratic nor competent—precisely to break partisan insiders’ lock on the line-drawing process. Under the amendment, commissioners are selected by a complex process involving three rounds of random draws. The amendment also imposes strict rules disqualifying political insiders from service on the Commission, guaranteeing that the Commission will have funding and independent counsel, and requiring an extraordinary degree of public participation in the map-drawing process. It serves each of the three functions that advocates of sortition have suggested a randomly selected citizen assembly might serve: final decisionmaker, democratic check on elite capture, and generator of public information.

The MICRC’s inaugural cycle was, on the whole, a success. The commissioners were, by and large, genuine political outsiders, the process was radically transparent, and the resulting congressional and legislative maps scored exceptionally well on partisan fairness—a central aim of the reform. But a three-judge federal district court invalidated several Detroit-area state legislative districts as unconstitutional racial gerrymanders. The essay argues that this misstep illustrates the precise tension sortition schemes must confront. The commissioners deferred almost entirely to their voting rights experts, who instructed them—incorrectly, it turned out—to hold Black voting-age population within a rigid 35–45% band, overriding the commissioners’ own judgment and the vociferous objections of Detroit residents. The 2018 amendment carefully constrained partisan insiders but imposed no comparable discipline on experts: no vetting procedures, no requirement of viewpoint diversity, no structured learning phase. The Commission compounded the problem by hiring a single outside voting rights counsel and treating its General Counsel’s role as one of enforcing that lawyer’s advice.

The essay contends that the fix is not merely better technical training but institutional arrangements that expose commissioners to genuinely conflicting legal views and equip them with the confidence to resolve ambiguity themselves, as elected legislators do. Properly reformed, the MICRC offers a promising model for using lottocratic bodies to defend democracy.

Filed under: Academia, Applications, Elections, Sortition |