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The Gerrymander Moment
By Rob Richie and Steven Hill
December 8, 2003

Led by U.S. House Majority Leader Tom DeLay and George Bush's political mastermind Karl Rove, Republicans have brought the blood sport of legislative redistricting to new lows by spurring Texas and Colorado to gerrymander congressional districts mid-decade. But a ruling on Dec. 1 by Colorado's Supreme Court tossing out the state's plan suggests that there may be limits to particularly brazen abuse of political redistricting.

With the Supreme Court set this week to hear oral arguments in Vieth v. Jubelirer —a challenge to a Republican partisan gerrymander in Pennsylvania that marks the first gerrymandering case taken by the court since 1986—we will soon know if the court could step in where Congress and most states have abysmally failed and set public interest standards for redistricting. But even if the court does take action, it will be just a start to establishing a reform that is critical to any effort to claim democracy in the United States.

As a quick tutorial, every 10 years the U.S. Census releases new population data, and elected officials in nearly every political jurisdiction in the nation carve up the political landscape into new legislative districts to ensure representatives have an equal number of constituents.

Some cities and states have procedures to promote public interest in this redistricting process, but most do little to prevent the creation of a hodgepodge of districts gerrymandered to protect incumbents and build partisan advantage. With increasingly sophisticated computer software, polling results and demographic data, incumbent legislators quite literally choose the voters before the voters have a chance to choose them. As a result of the redistricting process, most voters are locked into one-party districts where their only real choice at election time is to ratify the incumbent or heir apparent of the party controlling that district.

After years of simmering as a backburner concern for wonks and insiders, redistricting has burst onto the national scene in the wake of a sharp rise in non-competitive elections and hardened partisan lines in Congress and many states. Nearly every major newspaper, including the Chicago Tribune, Los Angeles Times, New York Times, Wall Street Journal and Washington Post have called for reforms to provide greater fairness and voter choice, usually based on the criteria-driven process instituted in Iowa in the '80s. Unlike many reforms, fair redistricting has drawn fervent support from across the spectrum, ranging from conservatives at the Wall Street Journal and Cato Institute to moderate Republicans like Iowa Congressman Jim Leach and Arizona Senator John McCain and Democrats like former Vermont Governor Howard Dean and Oregon Congressman Earl Blumenauer.

It was bad enough that in 2001 both Republicans and Democrats elevated incumbent protection in redistricting to new levels. In California, for example, incumbent U.S. House Democrats paid $20,000 apiece to a redistricting consultant—the brother of an incumbent—to have "designer districts" drawn for them. Republicans went along with this cozy arrangement in exchange for their own safe seats. The result was an unbroken parade of landslide wins, with no challenger to an incumbent winning even 40 percent of the vote. Nationally, only four challengers defeated House incumbents, the fewest in history, while fewer than one in 10 races were won by competitive margins inside 55 percent to 45 percent.

The lockdown of the U.S. House has major repercussions for our political process and representative government. Elected every two years, with representatives closer to the people than senators or the president, the House was designed to reflect the will and different interests of the nation. The reality is far different. Hardly any members can be held electorally accountable, given the paucity of primary challenges (indeed more members have died in office than lost in primaries in the last decade) and lopsided general elections grounded in their incumbency advantages and districts drawn to have a majority of voters backing their party. The growth in seats held by women and people of color has come to a standstill after a sharp rise in 1992, after the last redistricting.

Control of the House is nearly as fixed in stone as the routine 98 percent re-election rates. Since 1954, control of the U.S. House has changed just once, when Newt Gingrich and Republicans took over in 1994. Democrats gained a few seats in each election between 1996 and 2000, but Republicans cemented their grip in 2002 after dominating redistricting in several large states. Despite Democrats theoretically needing to only pick up 13 seats to regain the House, few observers believe that possible this decade without a dramatic surge toward Democrats. A win for George W. Bush in 2004 would make it even harder for Democrats, as it likely would lead to a wave of retirements of Democratic members whose only chance at influence is a sympathetic president.

Redistricting was a key reason for Republican success in 2002. Although Al Gore won a half million more votes than George Bush in 2000, Bush carried 237 of current House districts, compared to only 198 for Gore. Gore won more votes than Bush in the combined total among Florida, Michigan, Ohio and Pennsylvania, but after having unfettered control of redistricting in those states, Republicans now hold a whopping 51 out of 77 seats elected from those areas—including 18 of 25 seats in Florida. Given that Democrats hold a majority of House seats in the remaining 46 states, it's fair to say that the key elections for House control were not in 2002, but in those states' 1998 gubernatorial elections swept by Republicans who then helped dominate congressional redistricting.

But Republicans just may have overplayed their hand in their relentless drive for a secure majority. This spring, Colorado Republicans adopted a new plan to protect a vulnerable congressional incumbent merely two days after its introduction. In Texas, things reached truly wacky dimensions, involving the potentially illegal use of federal agents to apprehend 51 Democratic state legislators who had gone AWOL to prevent having a quorum that could enact the redistricting. Republican Gov. Rick Perry convened special session after special session until finally winning a plan designed to switch seven seats to his party. Those high-profile shenanigans may have been what spurred the Supreme Court to take the Vieth challenge to the Republican gerrymander in Pennsylvania. Gerrymandering is bad enough without the prospect of each new legislative majority adjusting lines to protects its friends and hurt their enemies after every election. But what this court might do on redistricting is a great unknown.

Given its transparent conservative leanings, the court will have to rise about the particulars in Pennsylvania to consider a standard to reign in gerrymandering's worst abuses. The Vieth plaintiffs propose as their standard that supporters of one party should have a reasonable chance to elect a majority of seats if their preferred candidates win a majority of the vote. That basic democratic principle all too often can be violated by gerrymandering, and certainly would be a strong start toward sensible redistricting standards.

But it's only a start. The court is not expected to address incumbent protection in redistricting, which arguably is the greatest threat to fair elections. And certainly it is not going to touch what is the best solution to the conundrum of how to provide both competitive elections and fair representation: replacing winner-take-all elections with full-representation electoral systems in multi-seat districts, which makes voters rather than district lines the key to defining representation. Ultimately we must win a fair democracy in the political process. With voter turnout plummeting, most of us living in thoroughly noncompetitive districts and the "People's House" gerrymandered so that one party has dominant control, we could cancel most legislative elections and few would notice. In the 90's an angry public lashed out by voting overwhelmingly for term limits. Now it's time for a drive to give voters real choices, new voices and fair representation. It won't happen without redistricting reform.

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