National Redistricting News
A Partisan Game of Gotcha!
June 14, 2004
Before Tom Delay got to Congress 19 years ago, he was an exterminator back in Texas. But the Republican Majority Leader's true calling may be as a House painter with only one color on his palette -- red. Last year, DeLay was behind a bold remap of Lone Star congressional districts that is likely to deliver control of the state's House delegation to Republicans.
Seven white Democratic incumbents were reassigned to overwhelmingly GOP districts, while other Democratic districts were packed with minority voters to minimize their influence elsewhere. The liberal oasis of Austin was sliced into three surreal districts that snake from Houston to the Mexican border. Hello, Dalí. Goodbye, Democrats. Because of retirements, one party switch, and the tough slog posed by the redrawn lines, at least seven Democratic seats could wind up in GOP hands.
Gerrymandering, of course, dates to the early days of the Republic -- to 1812, to be exact, and the handiwork of Massachusetts Governor Elbridge Gerry. But the DeLay Shuffle was noteworthy in two regards. The first was the Texas GOP's skill at using computer technology to draw maps that maximize partisan advantage. The second was the fact that district lines had already been redrawn following the 2000 census. So DeLay & Co. ignored the usual custom of fiddling with districts only once after every 10-year head count.
Traditionally more an art than a science, redistricting has been turned into a zap-thy-neighbor video game. Computers permit a partisan artiste to sift through demographic data and voting patterns to plot new lines with uncanny precision -- right down to a targeted apartment complex or trailer park.
Creative? Yes, but also very bad for the body politic. Because of gerrymandering, only 35 of the 435 House districts are remotely in play. Add to that an incumbent's power to raise massive amounts of cash, and you have a system stacked in favor of the status quo: 98.2% of incumbents won reelection in 2002, the first post-census election with newly drawn lines. "Instead of voters choosing their representatives, in over 90% of districts the representatives choose their voters," says American University historian Allan J. Lichtman. "There's very little democracy in the House of Representatives."
That's of small concern to leaders of the two parties, who will be tempted to do a DeLay and commence redistricting the moment a governorship and state legislature change hands. The trouble is, shifts in state legislatures are often transitory, so the specter of continuous redistricting wars looms over an already polarized political landscape.
Redistricting experts say the recent gerrymandering games have contributed to escalating partisanship, a hollowing out of the political center, weakened clout for minorities, diminished voter participation, and even a loss of faith in democracy. "Less competitive elections result in lower turnout and give people the feeling that politics is all locked up," says Harvard political scientist Theda Skocpol. "This gives a party some short-term advantage, but over the long haul it damages the political system -- especially in an era of voter disenchantment."
Pushing the Envelope
Voter cynicism is rising as more Americans realize how little choice they really have for Congress. And not all gerrymandering involves DeLay-like partisan maneuvers. An equally objectionable practice is the joint carve-up, in which incumbents of both parties conspire to protect their seats in perpetuity.
Case in point: California, where Democrats and Republicans agreed on a 2001 redistricting plan that protected all incumbents at the expense of challengers. Aside from snuffing out competition in general, the new lines were a particular affront to the state's fast-growing Mexican-American population because precious few vistas were opened for Latinos. The outcome was predictable. In 2002, only 1 out of 53 congressional races was even close -- an open seat following the Gary Condit scandal. "They essentially did away with [congressional] elections in California," says Steven Hill, an analyst at the Center for Voting & Democracy, an electoral-reform group.
Unfair redistricting doesn't just disenfranchise people unlucky enough to live in the wrong place, however. It also distorts the true partisan balance of some states -- and the nation. In Florida, where Bush won the Presidency by a hanging chad, congressional districts devised by the GOP legislature misrepresent the true strength of the two parties. So while Al Gore got half of the state's popular vote, he was victorious in just 8 of the 25 House districts. Nationally, Republicans handily won the post-2000 redistricting wars, too. The result was a Presidential race in which Gore won 500,000 more popular votes than Bush but carried only about 46% of House districts. Score one for the Red Team.
That doesn't mean that Democrats don't play the same games. Maryland Democrats three years ago removed enough GOP loyalists from the district of Connie Morella, a popular Republican moderate, to engineer her narrow defeat in 2002.
Lately, Republicans have pushed the envelope with a new maneuver called re-redistricting. After a change of power in the state capital, the newly dominant GOP hastily redraws lines previously agreed to by the legislature or the courts. That happened in Colorado when Republicans seized the state Senate in 2002 and tried to transform two competitive districts into party bastions. The move was struck down by Colorado's Supreme Court, which held that the state constitution limited redistricting to once a decade.
No constitutional bar prevented DeLay & Co. from redrawing congressional lines after the GOP gained control of the Texas statehouse in '02. The new map could turn what was a 17-15 Democratic edge into a 22-10 GOP stranglehold if all of targeted incumbents are ousted on Nov. 2. Continuous revisions, says historian Lichtman, "threaten democracy at its core."
Indeed, gerrymandering has become a centrifugal force that sends power to the outer edges of the ideological spectrum. Because the majority of districts are controlled by one party or the other, the eventual winner is really chosen in primaries dominated by Democratic leftists or Republican right-wingers who prefer head banging to compromise.
As a result, moderate Republicans are an endangered species. And a once-vibrant bloc of centrist House Dems has dwindled to two dozen from a peak of about 70 two decades ago. "The biggest scandal in politics is not campaign finance but redistricting," says Al From of the Democratic Leadership Council. "By empowering the extremes, this makes it harder to achieve solutions to big problems, and it makes it impossible to get bipartisan reform."
Republicans dismiss such criticism as the howls of political losers. They say that Dems, masters of gerrymandering for generations, didn't start caterwauling until the demographic tide turned red. Moreover, the courts thus far are taking a hands-off approach. On Apr. 28, the U.S. Supreme Court upheld a Pennsylvania plan designed to oust four Democratic incumbents and create two new GOP seats.
Still, reformers are hoping for a public backlash against unchecked partisanship. That's what happened in 2000, when Arizona adopted a constitutional amendment that shifted primary responsibility for redistricting from legislative insiders to a blue-ribbon commission. Like similar panels in New Jersey and Washington State, the commission drew relatively balanced districts. But it's not a perfect system. Because commissioners can take incumbency into account, they often protect sitting House members even as they create "fair fights" elsewhere.
There is a better way. In Iowa, a nonpartisan panel draws compact districts that give incumbents no special edge. Since 1981, it has created the nation's most competitive House seats.
Congress could further the push for competitive districts by outlawing the most egregious displays of computer line drawing and reining in re-redistricting. That's not likely to happen while DeLay remains House Majority Leader. And even modest reforms will require a wave of public revulsion. As democracy declines in the face of gerrymandering's excesses, the burning question is: Where's the outrage?
Find Law's Writ
The Supreme Court Gives Partisan Gerrymandering the Green Light--or at Least a Yellow Light
By Michael C. Dorf
May 12, 2004
The Supreme Court's recent 5-4 decision in Vieth v. Jubelirer rejected a challenge to politically gerrymandered districts for Pennsylvania's delegation to the U.S. House of Representatives. In so doing, the decision seemingly gave state legislatures and governors the green light--at least for now--to continue using sophisticated computer databases to draw electoral district lines in ways that consistently undermine principles of democratic government.
But the apparent green light may prove to be a yellow light. Justice Scalia's opinion announcing the judgment of the Court only attracted four votes: his own plus those of Chief Justice Rehnquist and Justices O'Connor and Thomas. The fifth and decisive vote for the result in the case came from Justice Kennedy--who endorsed the result, but whose "swing vote" was based on a different view of the law.
Kennedy agreed with the other four justices in the majority that no "judicially discoverable and manageable standards" had yet been proposed for the adjudication of partisan gerrymandering claims--and therefore that the plaintiffs' challenge to the Pennsylvania apportionment plan must fail. But unlike the four, he also left open the possibility that future plaintiffs in future cases might offer a constitutionally satisfactory standard.
Will the slim hope Justice Kennedy offered those who would challenge partisan gerrymandering prove to be a false hope? That remains to be seen. But in the meantime, no one should read the Vieth decision as a clean bill of health for our increasingly nasty and partisan politics.
The Apparent Issue in Vieth: Partisan Gerrymandering
As Edward Lazarus explained in an earlier column on this site, recent advances in computer technology have enabled politicians to draw electoral maps in ways that all but assure the election of their favored candidates.
Consider Pennsylvania's example. As a whole, the state is more or less evenly split between Democratic and Republican voters. But both houses of the legislature and the statehouse were in Republican hands when these bodies set about redistricting after the 2000 census. As a result, these bodies were able to create relatively safe seats for Republicans in nearly two thirds of the state's federal districts. Thus, a state that is actually about one-half Republican is represented as if it were about two-thirds Republican.
As Lazarus and others have noted, partisan gerrymandering--along with the practice of gerrymandering to protect incumbents--has reduced to a handful the number of Congressional districts in which truly competitive elections occur. How are these safe seats for Republicans and Democrats created? Generally, either voters are "packed" into the representatives' districts, or the representatives benefit from political gerrymandering in states where they control the legislative process.
And the problem isn't just that elections aren't competitive. It is also that having "safe" seats that are, in effect, uncontested, tends to result in the election of representatives who skew towards the parties' respective extremes. And that, in turn, leads to polarization, rather than moderation and compromise, in Congress.
For most observers, therefore, Vieth was a case about the health of our democracy. Would the Court recognize the threats to self-rule from non-competitive elections and sharp partisan division?
The Court Views the Issue Through the Lens of the "Political Question" Doctrine
In the Supreme Court, however, the issue was posed somewhat differently. The Justices saw the question as one of jurisdiction.
For them, the issue was whether the Supreme Court--as opposed to Congress or the states themselves--was the appropriate institution to address the problems arising out of political gerrymandering.
Their answer was "no," or, given Justice Kennedy's crucial fifth vote, perhaps "not yet." Justice Scalia's opinion for a plurality of the Court concludes that political gerrymandering cases present what's known in constitutional doctrine as a "political question."
The basic concept of a political question is simple enough: The Constitution either explicitly or implicitly assigns to a political branch of government, rather than to the courts, some constitutional questions. (The political question doctrine is a subset of the general doctrine of justiciability--whether a given legal question ought to be addressed by a court.)
For example, in the 1993 case of Nixon v. United States, the Court found that a federal judge who challenged the process by which the Senate had removed him from office, following his impeachment by the House, raised a political question. The Senate, not the Court, the Justices said, gets to decide what procedures are proper in this circumstance.
Why does the Senate have the power? The Constitution assigns to the Senate "the sole power to try all impeachments," and that assignment, the Court ruled, included the final authority to determine what counts as a trial.
Accordingly, the Justices refused to entertain former Judge Nixon's argument that the Senate acted impermissibly when it assigned the task of hearing evidence to a committee whose report went to the full Senate, rather than taking evidence on the Senate floor itself.
The Murky Line Between Political Questions and Justiciable Cases
If Nixon was a relatively easy case, the application of the political question doctrine has often been unclear. In the leading precedent, the 1962 decision in Baker v. Carr, Justice Brennan, speaking for the Court, distilled the prior political question cases into a six-factor test.
The first factor--whether the Constitution's text demonstrably commits the issue to another branch--seems the easiest to apply. In the Nixon case, for example, the Constitution's text pointed to the Senate, rather than the Court.
In Vieth, Justice Scalia suggests that the first Baker factor renders all political gerrymandering claims political questions. He points out that under the Constitution, Congress has the authority to "alter such Regulations" regarding federal election districts that the states initially make. If Congress has that power, Justice Scalia's opinion indicates, then the Court lacks it.
But this argument cannot be dispositive because Baker itself involved a claim that a state had abused the power of drawing district lines. In Baker the Court ruled that a challenge to Tennessee's gross deviation from the principle of one-person-one-vote in drawing district lines did not present a political question.
The substance of the claims in Baker and Vieth was different, but the relevant constitutional text was the same. And Congress's power to alter state regulations of federal election districts was not exclusive of judicial inquiry in Baker. So why should it have been in Vieth?
Are There Judicially Discoverable and Manageable Standards to Measure Political Gerrymandering Claims?
Because the constitutional text was not dispositive in Vieth, the critical issue there was the second Baker factor: whether there are "judicially discoverable and manageable standards for resolving" claims of political gerrymandering. The plurality in Vieth said there were neither, and therefore concluded the case presented a political question.
What are "judicially discoverable and manageable standards"? Discoverable standards are those that can be traced to the Constitution's text, structure, history and so forth, such that the courts can honestly say that their decision is guided by law, rather than made up out of whole cloth. Manageable standards are those that lead to predictable and sensible results, such that actors (like state legislatures) subject to them can conform their conduct to law.
In a 1986 case, Davis v. Bandemer, the Court ruled that political gerrymandering cases did not present a political question, but the Justices disagreed on the relevant standard. In the interim period between Bandemer and Vieth, the lower courts interpreted Bandemer as setting so difficult a standard that no electoral district has been declared unconstitutional as the product of political gerrymandering. And in Vieth, the plurality concluded that Bandemer should be overruled.
There are no judicially discoverable standards, the Vieth plurality concluded, because everyone acknowledges that some political matters may legitimately be considered in apportionment decisions. To draw a line beyond which politics have played too great an influence, the plurality said, would be arbitrary. That line would not be rooted in the Constitution, and thus not judicially discoverable.
Likewise, the plurality in Vieth said, none of the tests for "too much politics" were manageable. The root problem, as Justice Scalia saw it, is that there is no neutral baseline against which to measure whether a political group has been deprived of political power to which it is otherwise entitled.
Party registration figures, results from statewide elections, and the like, he noted, do not necessarily tell us how people would have voted in particular Congressional district elections had the lines been drawn differently.
Was the Plurality in Vieth Right?
The Vieth plurality opinion is not wholly persuasive. It is true that to "discover" a relevant constitutional standard, the Court would have had to, in effect, make one up. But of course that's true in nearly every area of constitutional law where the Constitution's text speaks in majestic generalities.
For example, the Court's equal protection cases say that certain "suspect classifications" identified by the Court trigger "strict scrutiny"--a term invented by the Court to capture the inquiry into whether a state has adopted the "least restrictive means" of advancing a "compelling state interest."
Likewise, the Court has discovered a principle of "state sovereign immunity" that bars individuals from suing states without their consent, with an important exception. Individuals can be authorized to do so if Congress enacts a law that is "congruent and proportionate" to what the Justices themselves, under tests of their own devising, would consider a violation of the Fourteenth Amendment.
None of the words in quotation marks in the previous two paragraphs are found in the Constitution itself; yet that has not stopped the Court from "discovering" them in the Constitution. One might, of course, think that certain of these tests are misguided, and perhaps that is what the Vieth plurality thinks. But if that is so, they ought to acknowledge that their analysis would require them to overturn most of modern constitutional law.
What about manageability? The plaintiffs and dissenters in Vieth argued that standards for political gerrymandering are manageable because they can simply be borrowed from a parallel line of cases--those in which the Court has said that racial gerrymandering is unconstitutional.
But the Vieth plurality rejected the race analogy, on the ground that whereas race is a generally impermissible criterion in government decisionmaking, politics is not. There is a vast difference, the plurality said, between discerning whether an impermissible factor like race has been used, and discerning whether "too much" of a permissible factor like politics has been used.
That is a fair point, but it seems largely to overlook the fact that the Court's racial gerrymandering cases do not ask simply whether race has been used as a factor in districting. Instead, they ask whether race was the "predominant" factor--that is, whether "too much" race has been used.
The inquiries in racial and political gerrymandering cases thus do seem quite similar--and the dissenters seem to have the better of this argument.
What Next for Political Gerrymandering Cases? A Process Proposal
In the wake of Vieth, what should friends of democracy do to challenge political gerrymandering?
The Vieth plurality suggests that they should take their case to Congress. Yet as the Vieth plurality itself also notes, the very Pennsylvania districts challenged in the case were created under pressure from "prominent national figures in the Republican Party." How likely is it that the national legislature will be sympathetic to a campaign to end political gerrymandering?
The other option is to take Justice Kennedy at his word, and to try to devise a standard for judging political gerrymandering claims that he (and presumably the four Vieth dissenters) would deem manageable.
I'll do my bit here by championing one such standard that my Columbia Law School colleague Professor Samuel Issacharoff has advocated: Political gerrymandering claims should be closely scrutinized unless the electoral districts were themselves drawn by a nonpartisan body, as occurs in some states.
It is a basic principle of American constitutional law that in some circumstances, actors who are not politically accountable are better positioned to make the ground rules for those who are. Thus, we generally trust the courts to interpret the constitutional ground rules for politics because we think they are more likely to try to do the job fairly than are self-interested political actors. Even if the courts occasionally disappoint us by rendering what appear to be political judgments in the name of law, we can be certain that politicians will more often render political judgments, for that is the nature of their business.
Applying this principle to the political gerrymandering context would mean that states should be given an incentive to turn their districting process over to bodies that stand at least at one remove from politics. And that is exactly what adoption of Professor Issacharoff's standard would strongly encourage.
More competitive elections, and better government, would likely result. And surely a standard of law that produces such an outcome ought to count as "discoverable" in the Constitution
If democracy is to be worthy the name, curb gerrymandering
By Steve Chapman
May 8, 2004
By a 5-4 vote, the justices sent a signal that they are rarely if ever inclined to overrule elected bodies on this subject.
Often it's a good thing for the courts to stay out of political disputes, leaving them to be settled by the people acting through elected institutions. But in this case, the democratic institutions have been drained of their democratic essence. If you don't like that you can't vote your representative out of office, what are you supposed to do about it? Vote your representative out of office?
As if the situation weren't dire enough, some politicians want to redistrict more frequently than once a decade, which has long been the custom, so they can lock in any transient success at the polls. In Texas, the GOP-dominated legislature came up with a new map last year, replacing the one created in 2001. The goal is to let Republicans gain as many as seven additional seats in this year's elections.
How can voters regain the central role they're supposed to have? One option is to divide power at the state level. A Democratic governor can check a Republican legislature, preventing either party from dominating the process. But in that case, elected officials may safeguard the party they cherish most the Incumbent Party.
The best hope lies in more direct methods. Four years ago, Arizona voters approved a ballot initiative taking redistricting away from the legislature and giving it to an appointed commission. A California legislator has proposed a referendum to turn it over to a three- judge panel.
But no state has matched the success of Iowa. There, the task falls on the nonpartisan Legislative Service Bureau, which in drawing up districts is not allowed to factor in voting patterns and other political information. The result is that in 2002, with just five House seats, Iowa had three competitive races.
Today, thanks to gerrymandering, we have government by the consent of governors. If Americans want to live in a democracy worthy of the name, they need to find ways to curb the excesses of partisan redistricting. That, or move to Iowa.
The gerrymander lives
High court failed voters
May 8, 2004
People who dislike Congress' related penchants for permanent incumbency and strident partisanship were disappointed by the U.S. Supreme Court recently.
In a familiar 5-4 split, the high court decided to let stand Pennsylvania's egregiously partisan congressional redistricting map.
Don't give up hope, though.
There's still Texas.
The tortuous lines of the Texas redistricting map are scheduled for court scrutiny in June. Hard as it may be to believe for anyone who has looked at Pennsylvania's goofy map, Texas' situation is even more outrageous.
Given the chance, a state's ruling political party has always exploited to its benefit the once-a-decade chance to redraw congressional districts. It's called gerrymandering, and both sides do it. Rare is the state where district boundaries are based primarily on logical communities of interest, with an eye to maintaining competitive balance. But in the age of the computer, gerrymandering has gained a poisonous precision.
First, incumbents of both parties make deals to form districts that make it impossible for them to lose. Nowadays, no more than three dozen congressional seats are truly at risk in any election. In the rest, the lines ensure the incumbent will win, effectively disenfranchising voters who don't like him or her.
Second, a party can now use technology to draw the lines so carefully that it derives an immense edge in elections even in states with evenly divided party registration.
Pennsylvania Republicans redrew the lines so that an 11-10 GOP advantage in 2000 became a 12-7 split in 2002 (the state lost two seats in reapportionment after the census). This, even though Pennsylvania has more Democrats than Republicans.
On Pennsylvania's map, several of the districts look like monsters from a Maurice Sendak children's book.
The plaintiffs in the Pennsylvania case asked the court to overturn the map based on "discriminatory intent." The majority, led by Justice Antonin Scalia, would have none of it. Scalia wanted to go so far as to overrule a 1986 precedent that suggested a redistricting could be so grossly partisan as to be unconstitutional.
Justice Paul Stevens, who dissented, rightly noted that such a hands-off approach "would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification."
Fortunately, Justice Anthony Kennedy - the swing vote to uphold Pennsylvania's map - would not slam the door on court intervention against a grotesquely partisan map.
Kennedy said, in effect, that if you base a map precisely on citizens' demonstrated voting habits in such a way as to break up their natural community of interests, it might be an unconstitutional violation of their freedom of association.
Odd reasoning. But as the nakedly partisan Texas map (a re-redrawing of lines to give the GOP an expected 22-10 advantage) comes up for review, this theory may be the best hope for voters who'd like to have a real choice at the polls, rather than merely anointing the incumbent every two years.
The erosion of democracy
How about a little congressional competition again?
By Rich Lowry
May 4, 2004
In the 19th century, the British parliament system had become so rotten that Dunwich, a former seaport town that had literally sunk under the water, was still represented in parliament. The U.S. Congress doesn't have any Dunwiches, but it is being eaten away by its own form of systemic corruption — the drawing of congressional districts to hand them irrevocably to one or another of the political parties.
With the aid of sophisticated computer technology, politicos are able to draw congressional districts so safe that incumbents can hold on to them for a lifetime. In 2002, just four incumbent congressmen who faced non-incumbent challengers lost their reelection bids. Last week the Supreme Court declined to overturn a Pennsylvania congressional redistricting plan in a case highlighting the ongoing scandal of so-called gerrymandering. A hallmark of American democracy, the competitive election, is being wiped out, congressional line by congressional line.
With the help of district lines sometimes so tortured that they look like works of abstract expressionism, incumbents have increased their reelection rate from 92 percent to 98 percent. That is a marginal-seeming but significant change. University of Virginia political scientist Larry Sabato has a feature on his website tracking close congressional races. In 2002, it followed the "Nifty 50," the 50 most competitive races. This year it features the "Dirty 30." "And we had to stretch to get to 30," says Sabato.
Eighty-one incumbents ran unopposed in 2002, according to the Center for Voting and Democracy. In 350 of the 435 congressional races, the winner won by more than 20 percent. The center projects an even less competitive congressional cycle this year. This means representatives increasingly operate without the factor that tends to force them to be representative — the fear of defeat.
On top of the friendly district lines, incumbents have perfected the art of reelection, refining the use of all their natural advantages, from direct mail, to paid staff, to access to the media. More and more, would-be challengers just don't bother. Republican Rep. Phil Gingrey narrowly won a district in Georgia in 2002, but faces no serious challenge this year. Even one-term incumbents in close districts are looking too formidable to challenge.
The liberal press has only now noticed the problem of gerrymandering, its outrage apparently piqued by the fact that Republicans are now in a position to draw district lines. Governors and state legislatures collaborate in the process of redistricting every ten years with the new census. In 1990, their position in the states was so weak that Republicans alone could only draw lines for five congressional districts. In the 1980s districts were so heavily gerrymandered by Democrats that Republicans probably needed to win 60 percent of the total congressional vote to have a shot at a majority.
One of the chief outrages of liberal reformers, Tom DeLay's recent redistricting of Texas, is only an effort to wipe away the effects of such a Democratic gerrymander. The Texas congressional delegation has been marginally Democratic, although the state is as "red" as they come and Republicans hold every statewide elected office. Now the delegation will be more representative.
But reform that gores both Republicans and Democrats is necessary nationwide. The Supreme Court was right to take a pass in the Pennsylvania case. The court, already notorious for Bush v. Gore, shouldn't get any more involved in partisan politics. It is the public that will have to pressure the political system for change.
States should adopt objective criteria for the drawing of districts, including contiguity and compactness that will limit somewhat the ability of the parties to play games. Bipartisan commissions should be given a significant role in drawing district lines. In Washington state, such a commission has created generally competitive districts so even a speaker of the House (Tom Foley) has lost a race there in recent memory.
The goal should be to make it possible for most people to vote in a congressional election that matters. What a concept.
Desert Morning News
The art of gerrymandering
May 3, 2004
Politics is inherently political. That may come as a shock to some folks. Apparently so, considering all the fuss over how political districts were redrawn nationwide after the 2000 Census.
When Democrats controlled Congress and most state legislatures, they tended to redraw districts in such a way as to keep themselves in power. Today, Republicans do the exact same thing. That shouldn't surprise anyone. The same thing happened in 1811, when Massachusetts Gov. Elbridge Gerry drew a political district so oddly that it resembled a salamander. We call such things gerrymanders to this day.
But there is a distinction between politics and democracy. One is not always good for the other.
The U.S. Supreme Court ruled this week, 5-4, that states have a right to redraw their districts more or less as they please, as long as it is for political reasons. The ruling did leave open the possibility that some state could one day botch things so royally as to force the court to step in, but that doesn't seem likely.
And yet, while political redistricting ought to be a state matter, the states themselves have a duty to look out for democracy, as well as for political power.
In the computer age, it's possible to draw political districts with extreme precision. Utah Republicans went out of their way after 2000 to draw Democrat Jim Matheson out of his congressional seat. They may yet succeed in that plan. They also guaranteed GOP dominance in the Legislature.
But in doing so, they ran the risk of alienating and discouraging potential voters to the point where they no longer see any point to participating in the process. In 2002, 99 percent of congressional incumbents who ran for re-election nationwide won. Most congressional races nationwide are not close. The party in power could run virtually anyone with a pulse and score a victory. How is that good for the republic?
Some states have experimented with non-partisan redistricting commissions that decide how to remake boundaries in light of population shifts. Such a system would be useful in Utah, where one-party dominance has led to a lack of meaningful debate and opposition. It wouldn't end Republican dominance, but it might give under-represented constituencies more of a voice.
Of course, the politicians would have to decide to set up such a thing. Don't hold your breath.
Time to Draw the Line
By Fred Hiatt
May 3, 2004
In the 2002 congressional elections, four incumbents who faced non-incumbent challengers met defeat.
That was the fewest in American history, according to the Brookings Institution's Thomas E. Mann, but it was four too many as far as America's political leaders are concerned. If the nation's self-interested redistricters -- and, as of last week, its fence-sitting Supreme Court justices -- have their way, the entire Congress soon will be reelected by acclamation.
Now, maybe that's a good thing. Maybe the success of only four challengers means that the other 431 members of Congress are doing a terrific job. Things are going so swimmingly, at home and abroad, that we don't need any new blood in the House of Representatives, nor even serious challengers for members with life tenure.
Many Americans may not agree. But at the moment, most Americans have little control over the redistricting process that deprives them of a meaningful choice at election time, either for Congress or for their state legislators.
The decreasing competitiveness in congressional elections is not much disputed. In the 2002 elections, 356 races were decided in landslides (by margins of more than 20 percent); in only 38 races was the margin 10 percent or less, according to the Center for Voting and Democracy, an advocate of electoral reform. Last year, in Virginia's election for state legislators, nearly two-thirds of all races didn't even field candidates from both major parties.
Redistricting isn't the only reason for this. Republicans are tending to live near Republicans, Democrats near Democrats. "Person by person, family by family, America is engaging in voluntary political segregation," as The Post's David Von Drehle explained in an article on America's Red-Blue divide last Sunday.
But redistricting plays a huge part. Though voting patterns change over time, new technology allows politicians to draw lines with more confidence than ever that they are creating safe Republican or Democratic seats. Sharper partisan divides give them more incentives to do so, and laws in most states offer no obstacles.
It's not strictly accurate that the line-drawing is always intended to protect incumbents. House Majority Leader Tom DeLay instigated a redistricting in Texas, for example, that is meant to dislodge a number of incumbent Democratic members of Congress this fall. But then the seats are intended to remain safely in Republican hands.
And often the two parties conspire to deprive voters of a choice. In Northern Virginia, for example, Rep. Jim Moran has been an embarrassment. But he enjoys a district so Democratic that no serious Republican challenge is likely. Republicans were happy to give him this comfortable home because it meant they could pack Republicans into two comfortable districts for their own Reps. Tom Davis and Frank Wolf.
Good news for the congressmen: The only costs are that voters become irrelevant, voting becomes superfluous and politicians have no incentive to form coalitions or reach out to those in the minority.
Last week, the Supreme Court declined, by a 5 to 4 vote, to invalidate a Pennsylvania political gerrymander. The justices said that because no one had proposed a persuasive standard -- how much gerrymandering is too much? -- they couldn't get involved.
American political scientists tend to snicker if you suggest that maybe any gerrymandering is too much. This is a politician's game, after all; they've been drawing nefarious lines since colonial times; we wouldn't want to oversanitize things.
But why not? At a recent Brookings conference, redistricting expert Lisa Handley said that most Western democracies have no trouble doing the job more fairly than the United States. In the United Kingdom, for example, civil servants redraw lines to reflect population changes, and they do not take into account where incumbents live or which party will benefit. "In most of the rest of the world, redistricting is not nearly as partisan or as contentious as it is here in the United States," she said. "We really are quite different than other Western democracies."
The biggest difference may be that most of us -- more and more of us -- have almost no chance of replacing our representatives at election time, which you'd think would be the defining characteristic of democracy. It doesn't have to be this way, as Handley said. But the courts apparently aren't going to save our system from itself, and the politicians certainly won't voluntarily submit to the indignity of contested elections. Things will change only if people insist on it.
The Court Punts
May 1, 2004
The Supreme Court this week examined a fundamental breakdown in American democracy and responded with a shrug. The issue was redistricting, specifically whether the Constitution imposes any meaningful restraint on state legislatures that manipulate federal and state legislative districts for partisan advantage. Long a blight on American elections, redistricting has gotten wholly out of control in recent years. With sophisticated computer programs, politicians can draw lines to maximize precisely their party's representation and minimize the other's. The result is sham legislative elections in which fewer and fewer seats are competitive and moderates of both parties get squeezed out of office.
Back in 1986 the court suggested that partisan gerrymanderings could offend the Constitution if they were bad enough, but in practice the decision has not functioned as a check on excesses. This year's case, involving partisan manipulations by Pennsylvania Republicans, presented an opportunity to make that promise meaningful. The justices declined the opportunity.
Writing for a four-member plurality, Justice Antonin Scalia declared that, contrary to the 18-year-old precedent, political gerrymandering cases were not even a proper subject for judicial consideration. No court had ever articulated a clear standard, he argued, to determine when normal politics in redistricting becomes impermissible. And that suggests that the search for a stable, coherent principle of law is fruitless and should be abandoned. Mr. Scalia's argument has some force. Even the dissenters, who wanted -- as we do -- greater judicial supervision of redistricting, could not agree on what standard ought to guide it.
But the trouble with leaving the problem to the political system, as Mr. Scalia would do, is that there is no basis for confidence the political system can fix it. Which politicians, after all, are going to give up their safe seats in the interests of systemic reform? Which party leaders are going to forsake a stronger caucus in the interest of more competitive elections? The argument for judicial vigilance is at its strongest in cases where the political process itself is encumbered.
Justice Anthony M. Kennedy -- the fifth vote for rejecting the lawsuit -- agreed that no workable standard had arisen but held out the possibility that one might in the future, and he therefore refused to overrule the precedent. The consequence of the splintered decision is that political gerrymandering suits remain a theoretical possibility, though no more than that. As a practical matter, Mr. Scalia won the day, even though his legal argument did not: The political process will have to rise to the task of confronting redistricting, because the courts clearly won't.
Voters of both parties have an overwhelming interest in making elections more competitive. It's going to take a coalition of the scope and seriousness of the one that made campaign finance reform a reality to bring about redistricting reform. Congress has the power to force state-level changes, and it must be pressured to do so. Legislatures, particularly those in states in which power is divided between the parties, need to be pushed as well. The most promising avenue for a national reform movement may be state ballot initiatives -- which can bypass the legislators whose interests reform would undermine. If medical marijuana can be made into a national cause using state ballot initiatives, surely democracy itself could muster a few votes.
Try, try again on redistricting
Supreme Court mustn't give up effort to set standards for political gerrymandering
May 1, 2004
Faced with a case accusing Pennsylvania Republicans of unfairly creating meandering, irregularly-shaped election districts purely for partisan advantage, the Supreme Court punted last week. Announcing the fractured decision to leave the contested districts intact, Justice Antonin Scalia said the court has never been able to resolve claims of partisan gerrymandering and should simply stop trying.
Redistricting that outrageously stacks the deck in favor of any one political party is an affront to democracy. Such election districts, found in too many states, dilute the power of the vote of people who support an opposing party. They contribute to virulent partisanship in Washington and legislative paralysis in Albany. The top court should not abandon efforts to craft a usable standard for judging when the acceptable quest for partisan advantage has gone too far.
In Pennsylvania, Republicans controlled the legislature and the governor's office when the 2000 Census forced the loss of two House seats. After Republicans adopted a partisan redistricting plan, the House delegation that had included 11 Democrats and 10 Republicans shifted to seven Democrats and 12 Republicans in 2002, even though enrolled Democrats outnumbered Republicans.
A five-judge majority upheld the districts. Justice Anthony Kennedy, one of the five, took exception, however, to the conclusion that "political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist." He said in a concurring opinion that just because no workable standard has been found doesn't mean one can never be crafted. In fact, Kennedy and the four justices who dissented offered a variety of possibilities.
The problem for the court is that, unlike racial gerrymandering which is blatantly illegal, angling for partisan advantage when drawing election districts is common, expected and generally legally acceptable.
The conundrum for the court is how to determine when partisanship in an inherently political process is pushed so far that it offends the Constitution. The court crafted a standard in 1986, which said an effective challenge had to show intentional discrimination against an identifiable political group and an actual discriminatory effect. But political affiliation is not immutable, as is race. People have many reasons for voting as they do, only one of which is a candidate's party. So after 18 years of what Scalia characterized as "essentially pointless litigation," the court this week abandoned its standard as unworkable.
With a number of partisan gerrymandering cases in the pipeline, including a particularly egregious example engineered by Texas Republicans, the issue is too important for the court to walk away from in frustration.
Journal Times Online
Debatable: Is redistricting a power shift or a power grab?
By David Steinkraus
January 18, 2004
On Friday, when the U.S. Supreme Court refused to block implementation of a voter redistricting plan in Texas, it permitted an election that either brings politics into the 21st century or is an old story of political repression.
In both Texas and Colorado, legislatures have redrawn voting district boundaries more often than once a decade, and these changes of the political map may make it easier for one political party to control its congressional delegation and state capitals. The Texas case was marked by the flight of opposition legislators in order to prevent a vote. The court will decide later this year whether to hear a case about frequent redistricting.
The fight about frequent redistricting plainly raises the question: Should we redistrict more often than once every 10 years? Yes We redraw districts now every 10 years because that's how often the Constitution requires a census. But that revered document doesn't say we can't count and change more often, and that may be more appropriate for our age.
When the Constitution was signed in 1787, a decennial census was appropriate because transportation and communication were slow. Today we are much more mobile and connected. We are counted and questioned constantly with results reported in days, weeks or months. Our mobility has led to huge shifts in population, recently toward the south and west. These people shouldn't have to wait 10 years for their representation to catch up with their movements.
We change government representatives quickly in frequent elections, so there's no good reason why our legislative districts shouldn't change to reflect the preferences and influence of the population.
And critics of frequent redistricting miss one important point: No amount of boundary tinkering will save legislators if they offend voters.
No Accurately representing the population is not the issue. Power is the issue.
Legislative redistricting has historically been a tool of disenfranchisement, used to create voting districts that lock one group out of power and keep another in. The South went through this fight only 40 years ago. People marched and died for their right to be included in government. Current efforts in Texas and Colorado are attempts by political parties to create blocks of guaranteed votes so members are more likely to remain in power regardless of opposition.
Rapid redistricting also will reduce legislative effectiveness and reduce participation in our republic.
Legislators, already obsessed with staying in office, will now have less reason to attend to the business of state as they struggle to get and keep power bases. Opponents seeking retribution for power-grabs will have less reason to compromise on legislation.
Voters will be confronted by frequent changes of their voting districts and polling places. People won't make heroic efforts to be model citizen if they're unable to find out what district they live in and find out who and what they're voting for. They'll give up and stop voting.
Thus, frequent redistricting is just another recipe to advance a power elite and keep it in power.
Christian Science Monitor
Gerrymuddling in Texas
January 9, 2004
A three-judge federal panel in Texas has, for now, handed the GOP a win in the Lone Star state by approving a new map for congressional seats that Republicans said better reflects their recent election victories among Texas voters. The case will go to the Supreme Court, focusing a national debate over how redistricting issues should be settled - by voters, courts, or Congress.
This ruling helps end a long stand-off that saw Democratic lawmakers flee the state twice to avoid voting on the GOP map. And it also comes after decades of Texas Democrats gerrymandering congressional lines to suit incumbents and interest groups, and a court-ordered redistricting in 2001 due to a deadlock in the legislature.
The federal panel ruled that the US Constitution does not prevent state legislatures from engaging in partisan redistricting or breaking the tradition of redistricting soon after the US Census. Nor did this particular GOP-drawn map violate the federal Voting Rights Act of 1965. It was "politics, pure and simple," they said, even while adding they were troubled by this "grasp of power" phenomenon.
The judges had this advice, though: "Congress can assist by banning mid-decade redistricting, which it has the clear constitutional authority to."
Redistricting is regularly necessary to better reflect demographic shifts in the voting populace. This may be too much to ask, but it shouldn't be used for partisan purposes or to protect incumbents. Politicians should be elected on their merits, not on their skill in drawing odd map boundaries.
New technology has made redistricting easier, quicker, and ever more precise - an advance that should be used to help better reflect the voting population rather than more finely carving up congressional seats.
Voters shouldn't sit back and let the courts or Congress solve this problem. They can pressure candidates to support measures on when redistricting should be done, and how each district should reflect equality, contiguity, unity, and compactness.
NewsHour with Jim Lehrer
The political battle in states over redrawing congressional districts has reached the courts
December 25, 2003
KWAME HOLMAN: The House of Representatives is called the "People's House." Its makeup is supposed to reflect the distribution of population across the country. And so the Constitution requires that states use census data, collected every ten years, to redraw the boundaries of their congressional districts to reflect population shifts.
That's not really an issue in Wyoming, Montana, North Dakota, South Dakota, Delaware, Vermont and Alaska. Those states have populations small enough to warrant only one at-large representative in the House. But in large states such as Texas, with a congressional delegation that numbers 32, redrawing congressional maps is a complex process that often involves statistical math, creative drawing and of course, politics.
It's the responsibility of state legislatures to redraw the maps with final approval given by the governors. In states where one political party dominates, it's an easy process. Legislative leaders simply redraw the boundaries, usually giving their party the best chance of winning the most congressional seats.
But if state government is divided, the remapping process can result in a stalemate. That's what happened in Texas after the year 2000 census. The Republican majority in the Senate and the Democratic-controlled House couldn't agree on a new congressional map, and so a panel of federal judges stepped in and drew one.
But when Republicans grabbed control of the Texas House after the 2002 election, their counterparts in Congress -- most notably House Majority Leader Tom DeLay -- urged the governor and the now majority Republican Texas legislature to throw out the court-approved map and draw one more to their liking. This was Texas Lt. Gov. David Dewhurst, a Republican, last summer:
LT. GOV. DAVID DEWHURST: We're going to draw a map that's fair, that's a Texas map that reflects the interest of the people of Texas -- one that'll represent the fact that the majority of people here in Texas like President George W. Bush, want to see a strong national defense, want to see lowered taxes; at the same time will reflect Democratic voters, independent voters here in the state of Texas.
KWAME HOLMAN: But the map Texas Republicans eventually drew, according to most political observers who've studied it, would shift dramatically the ratio of the congressional delegation. Currently 17 Democrats and 15 Republicans, it could shift to 22 Republicans and ten Democrats after the next election, sending seven more Republicans to Congress. Jim Dunnam is leader of the House Democratic caucus.
SEN. TED STEVENS: REP. JIM DUNNAM: Think of the instability in our country. If every time, every two years we redistrict Congress just because we could, or we didn't ... or the people in power didn't like who the people were electing, what kind of instability would that create in our federal government?
KWAME HOLMAN: Texas Democrats didn't go down without a fight, and their protests made for great political theater. In May, 51 state House Democrats flew north to Oklahoma, to deprive the Texas legislature of the quorum required to vote on the new map. In July, a dozen state Senate Democrats fled west to New Mexico. Texas' Republican Gov. Rick Perry called them home.
GOV. RICK PERRY: My Democrat friends, it's time to come back to work. There is still time to address the priorities of the people if you join your regular legislators in the spirit of bipartisanship.
KWAME HOLMAN: Eventually, the outnumbered Democrats did come home, opting instead to take their chances in court. Three weeks ago, in a similar case in Colorado, the state Supreme Court ruled against that Republican legislature.
As in Texas, Colorado Republicans this year redrew a court-ordered map after they gained control of their legislature. But the Colorado Supreme Court declared the map unconstitutional saying, "having failed to redistrict when it should have, the General Assembly has lost its chance to redistrict until after the 2010 federal census."
Colorado Republicans hold a five to two seat advantage in the congressional delegation. But if the state Supreme Court ruling stands, Democrats say they could compete for two of those Republican seats next year.
However, the most important challenge to a redistricting plan was argued two weeks ago before the United States Supreme Court. In that case, Pennsylvania Democrats charged that the Republican-controlled legislature designed a new congressional district map purely for partisan advantage.
The map reflected Pennsylvania's loss of two congressional seats after the 2000 census, but Democrats suffered the consequences. The map Republicans drew pitted Democrats against Democrats, placing the homes of veteran Congressmen Frank Mascara and John Murtha into one district, and those of Robert Borski and Joe Hoeffel into another. Murtha and Mascara were forced into a primary fight, which Murtha won.
And Borski, rather than fight Hoeffel, retired. And so Republicans took the one-seat advantage they had held in the state's congressional delegation prior to the 2002 elections, and actually added to it. Democrats, in all, lost three seats.
What attorneys for the Democrats want the Supreme Court justices to do is establish neutral criteria to help determine the shapes of future districts drawn for congressional elections.
MARGARET WARNER: Last Friday, a federal appeals court panel gave preliminary approval to the new congressional map for Texas, drawn by Republicans. Texas Democrats said they would appeal that ruling. Terry Smith has more.
TERENCE SMITH: We take up the debate now with two election law experts. Pam Karlan of the Stanford University Law School and John Yoo of Boalt Hall Law School at the University of California at Berkeley. He served in the Bush administration as the deputy assistant attorney general in the office of legal counsel. Welcome to you both.
Pam Karlan, what's at the heart of this argument that is now before the Supreme Court?
PAM KARLAN: Well, it's a question about whether the Constitution imposes any limits on partisan districting, and if it does, what those limits are and whether a court can enforce them.
TERENCE SMITH: John Yoo, is that the way you see it?
JOHN YOO: Yeah, I agree with Pam. The question is, you know, not whether politics can come into play in drawing districts.
TERENCE SMITH: Because they clearly do.
JOHN YOO: They clearly have, they have since the very first elections in our country. For example, the word "gerrymandering" comes from Elbridge Gerry who was accused of making the very first districts, who's also the drafter of the Judiciary Act of 1789. So it's been with us from the beginnings as a republic. But the other question is, exactly as Pam put it, not that politics can't come in, but do courts really have the ability or have any role in policing how far politics can go?
TERENCE SMITH: Well, should they, Pam? Are they the right venue for this?
PAM KARLAN: Well, there has to be some limit on how far politics can go, and one of the hard questions is whether what you want to look at is the output, you know, how many seats the Democrats and how many seats the Republicans get.
Or whether you what you want to look at instead is the process by which redistricting is done. For example the way Colorado court did, and it said you can redistrict once and once that redistricting is done, you can't keep revisiting the issue and tweaking the lines.
TERENCE SMITH: Well, what about that, John? The notion here in at least two of these cases, in Texas and Colorado, legislatures are attempting to redistrict what we could call mid-cycle, between the two tenure censuses. Is that a problem?
JOHN YOO: No, and the thing I think that is problematic is, you know, courts obviously play a big role in lots of things in society. They decide what's free speech and what's not free speech. But I do think there's a real problem with courts trying to come up with a standard for what goes too far.
So for example, there have been situations where majorities of ... parties have won 51 percent of an electoral vote in a state and only gotten 40 percent of the congressional seats. Is that politics going too far? What if they had won 60 percent or 70 percent and still ended up with only 40 percent of the seats?
You know, it reminds you of the effort that courts once made a long time ago to try to police competition in a different kind of market, the real market, not the political market. And courts, for a while, tried to figure out how much market power is how much too much, how can one company dominate an entire economic market.
And courts eventually gave up on that trying to look at what is called the output side of it because there's no real standard that courts can apply to try to figure out when politics has gone too far and something is actually unconstitutional.
TERENCE SMITH: Pam Karlan, when you look at Texas case, which provided so much drama, you had something different there. You had federal ... active federal involvement in the person of the House majority leader, Tom DeLay. Does that change the equation?
PAM KARLAN: Well, the reason that the federal court got involved in the first place is because the state of Texas and its political bodies, the legislature and the governor, couldn't agree on a plan. And when the 2000 census came out, they had to redraw the state's districts.
They couldn't agree, and a federal court stepped in then. I think everybody understands that federal courts sometimes do have to step in because, otherwise, Texas would have had a bunch of seats with no districts for them and a bunch of districts that had changed dramatically in their populations since 1990, and you would have had a real inequality of representation. So the federal courts had to step in, and the question is just when the legislature defaults, should it get a second bite at the same apple?
TERENCE SMITH: What about that, John Yoo? Should it, a second bite?
JOHN YOO: You know, I think so. I think that, you know, this really should be something that's up to the legislatures, and I can see why in some people's mind it doesn't seem right that you could have one party controlling the statehouse, controlling districts and maybe the party control over those districts ends up being out of whack with the population.
But you know, I think the important thing to keep in mind is that's the way the framers drafted the Constitution. Our constitutional system is not a pure democracy. You know, every district is not necessarily drawn so that 51 percent of the people pick all 51 percent of the representatives. And so one of the things the framers built into our system was to allow states to have a certain amount of control over the way federal officials were selected.
For example, senators used to be chosen by state legislatures directly. So it shouldn't be unusual that state legislatures, even if they're the party representation there is a little bit out of what can with the representation in the Congress from that state, should be able to draw the districts in a way to favor their preferences.
TERENCE SMITH: But let me ask you both ... or Pam Karlan especially, if that happened even more than once in a ten-year cycle, if the political leadership changed in a state legislature, what would you do? Redistrict every two years?
PAM KARLAN: Well, that kind of gets at what the real problem here is, which is the framers didn't really anticipate the kind of districts we have today or the kinds of political gerrymanders we have today.
We didn't actually have congressional districts in every state until the 1840s. Now in the 19th century, people redistricted again and again and again, and partisan politics was really fierce. I actually think the bigger problem today is, when the districts are drawn, as they are, they often either don't represent constituents at all.
And I'll just say here that one of the ways you can till tell a district is a little bit suspicious is if it has a nickname. Like for example, in Texas, in this latest re-redistricting, they drew
Information on redistricting in all 50 states is available by
clicking on the state to the left. We have compiled
important media coverage of national redistricting issues.
Postings in January 2004 concern the following
states: Arizona, Colorado, Illinois, Montana, North
Carolina, Rhode Island, and Texas.
Mapping our Futureis a state-by-state guide, from August 2000, to the details of redistricting at that time. It contains information on the statutes governing redistricting, litigation in the previous decade, any reform efforts and legislation on redistricting and an analysis of the political landscape in each state. The report now includes information about how redistricting has proceeded in each state, including a wide array of newspaper articles. To visit the archived "frames" version of our guide, with links to state by state redistricting news, click [here].
More information about redistricting is available in the voting rights section of our website.
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