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"A Partisan Game of Gotcha!" June14, 2004
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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.
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
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.
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.
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 ó 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 ó 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.
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.
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 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.
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.
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.
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.
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.
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 a district from Hidalgo County, which is on the Mexican border, up to Austin.
Everybody, everyone is now calling it the "fajita district," because it's a long thin strip of meat. And when you have a district like that, you know that something's gone wrong. People in Hidalgo County and people in Austin don't share a media market, they don't share political organizations. There's nothing to connect them except essentially empty pieces of land.
TERENCE SMITH: Is that wrong, John Yoo?
JOHN YOO: I don't see why it is. I mean, I don't see why because you have that kind of funny fajita district -- there's something in Pennsylvania called the "upside-down Chinese dragon district" -- why should it matter so much that courts have to come in and say, "this is unconstitutional"?
Why can't you rely on the political process to fix any kind of problems? Maybe the Republicans in Texas are going too far. Someday the Democrats in Texas will retake power again, and they could employ the same strategy.
You'll have tit for tat or mutually shared destruction strategy where both sides will, you know, damp down if they're going too far in order to make sure it doesn't happen to them in the future. The real question is: Why should this all be unconstitutional, not whether not whether it's a just a bad idea or not.
TERENCE SMITH: Well, the courts will decide that. But in the meantime, Pam Karlan, the critics argue that this leads to a polarization in Congress, and reduces competition for seats. In effect, it's an incumbent's insurance policy. Is it?
PAM KARLAN: Well, I think that's absolutely right. Only 10 percent of the congressional districts in the country are competitive; that is, districts in which there's a reasonable chance of either party's candidate winning.
In about as many districts, one of the two major political parties doesn't even put up a candidate. And if you look at which state has the most competitive districts in the country, it's Iowa. And one of the reasons they have the most competitive districts is because they don't allow the state legislature to redistrict.
In Iowa, an independent commission redistricts. The closest congressional race in the country, the last time around, was in Colorado, and the Republicans were quite candid that one of the reasons they want to re-redistrict there is to make sure that that congressman, who faced a real competition from the Democrats, won't have any competition this next time around.
TERENCE SMITH: John Yoo, that point that Pam Karlan is making in Colorado is a very good example. They were, in effect, using it to create a specific political outcome. Does that give you any pause?
JOHN YOO: No, it doesn't. And to respond to your question directly, is there polarization going on? Certainly there's no doubt polarization is going on...
TERENCE SMITH: As a result of redistricting is what I'm asking.
JOHN YOO: That's the question: Is it really a really of redistricting? Look at the Senate, which doesn't have districts. Isn't it the case that you have enormous polarization there. You have the inability of the Senate to confirm certain kinds of judges now, and you have filibusters which were unheard of 20 years ago of judicial nominees.
So is that really being caused by redistricting or not? Incumbency rates are certainly high, but again, let's compare it to other kinds of elections that don't districts. Incumbency rates for governors, state's attorneys general, and senators are all extremely high, too, very close to the range of the members of the House of Representatives.
It seems that it might just be that the problems that people are worried about really arising from more broader political changes, and redistricting isn't really getting at the problem or it really isn't the problem and it really isn't the solution.
TERENCE SMITH: Pam Karlan, what do you think that have because you sound as though you feel that redistricting is, in its way, shaping the Congress?
PAM KARLAN: Well, I think the rates of reelection of incumbents are substantially higher, actually, in the house than they are in the Senate.
TERENCE SMITH: They are.
PAM KARLAN: And part of that is a result of redistricting. And I think it also has a spillover effect into all of our politics, that you're more likely as a congressman either to die in office or be indicted than you are to lose your seat in an actual general election. And that's worrisome.
TERENCE SMITH: All right, for better for worse, it's now in the hands of the courts. So thank you both, Pam Karlan, John Yoo, very much.
JOHN YOO: Thank you.
PAM KARLAN: Thank you.
Find Law's Writ
In Isaac Asimov's science fiction classic, The Foundation Trilogy, the science of statistics has become so advanced that the future of government and society can be predicted with terrifying accuracy. Although free will may exist at the individual level, it effectively disappears in every circumstance of group behavior, because the ultimate outcome of all group conduct can be known by statisticians in advance.
Life is once again imitating art. Armed with the data-manipulating power of new computers, political operatives can now effectively predetermine the results of most elections. All they must do to accomplish this, is to re-jigger the boundaries of electoral districts to include certain voters and exclude others.
This improved predictive capability opens the door to at least two kinds of mischief. First, it allows the political party that controls a state legislature at the time of redistricting to reconfigure electoral districts to lock in its partisan majority. Second, it allows incumbent legislators an ability to design safe seats for themselves and, thus, preclude meaningful competition in subsequent elections
Does the Constitution prohibit this kind of outcome-determinative political "gerrymandering" - as the practice is known? That is the question now pending before the U.S. Supreme Court, in the case of Vieth v. Jubelirer.
During the December 10 oral argument in the case, the Justices showed little inclination to curb the practice. However, it would much better for our democracy if they would do so. A pre-decided election is perilously close to no election at all -- no matter who is favored. And incumbents, in particular, already have such a great advantage, that their attempts to amplify that advantage through gerrymandering ought to be especially troubling to us all.
The Facts of the Pennsylvania Case
The case currently before the high court comes from Pennsylvania. As a result of the 2000 census, that state lost two of its 21 congressional districts. It thus fell to the state legislature to redraw the boundaries of the state's remaining 19 districts.
Generally speaking, Pennsylvanians vote Republican and Democratic in roughly equal numbers. In the 2000 election, Al Gore won the state with just under 51% of the vote. By the same token, at the time of the census, the state's congressional delegation contained 11 Republicans and 10 Democrats.
As it happened, however, at the time for redistricting, both houses of the state legislature (which devises the electoral maps), as well as the governorship, were controlled by the Republicans. And using the new advances in voter databases, mapping, and other computer technologies, they went about locking in their majority with a vengeance.
Pennsylvania's Republicans could have chosen a neutral principle by which to draw the boundaries. One option would have been to maximize the geographic "compactness" of districts. Another would have been to adhere to natural or historical boundaries. But they eschewed both options.
Instead, they created a kaleidoscope of meandering districts carefully calibrated to achieve two goals. One was to push Democratically-inclined voters into a small number of districts. The other was to spread Republican voters in a way that would give them the greatest influence on electoral outcomes.
This kind of gerrymandering can have dramatic -- and pernicious -- results. Consider three counties, each of which has a 50/50 split between Democrats and Republicans. What you have is true democracy: Candidates' views will matter as to how the balance is tipped. The outcome is completely up for grabs. But now gerrymander these same counties so that one county has virtually 100 percent Democrats, and the other two each have 25 percent Democrats. The outcome is virtually pre-set: One Democrat Congressperson, and two Republicans.
Given possibilities like this one, it's no surprise that in the end, the Republicans succeeded in a drawing a map that, at least until the next redistricting, was almost certain to guarantee that Republicans would control 12 or more of the state's 19 congressional seats, even if, on a statewide basis, half of Pennsylvania's voters cast ballots for Democratic candidates.
If Pennsylvanians' party preferences were truly taken into account, the State should have 9 or 10 Republican representatives. Now, however, they are virtually certain to have 12 or more. That's not democracy; it's an outrage.
Put another way, Pennsylvania's Republicans assured their party of at least two more seats in Congress than they would have obtained if redistricting had been done on a non-partisan basis. So much for a level playing field -- Democrats are not only facing an uphill battle, they are facing one that is, in many districts, practically unwinnable. And the result is all the sadder in a state that is so evenly-decided that reasoned debate -- not head-counting -- could have carried the day.
The Pennsylvania Tactics Have Been Used In Other States, As Well
Worse, this phenomenon is not limited to Pennsylvania. Republican-dominated state legislatures in Texas and Colorado have been engaged in the same enterprise. (Indeed, the political gerrymandering in these states is even more egregious than in Pennsylvania because it is occurring only two years after the last redistricting -- rather than in accord with the customary ten year cycle regulated by the census).
Not surprisingly, Democrats are threatening to retaliate in states they control. And one important thing to realize about this tactic is that, in the end, every voter loses. Which party manages to entrench itself through gerrymandering, makes no difference in terms of the constitutional cost: Either way, the right to vote is impaired, as voters cast votes in what is, in essence, a pre-decided election.
The consequences of such pinpoint redistricting are profound. Every two years an election is held for the nation's 435 congressional seats. But in reality, thanks in significant part to clever redistricting, only a few dozen Congressional seats are truly up for grabs. The rest are guaranteed to the candidate of one party or the other - and usually by a margin of 20% or more.
All this makes the trip to the polling place a nearly pointless exercise -- except in a symbolic sense -- for tens of millions of voters.
The Pernicious Problem of Incumbents Preserving Their Seats
Moreover, if you're a candidate trying to unseat an incumbent, forget it. These candidates enjoy both artificially safe districts and the inherent advantage in fundraising that comes from incumbency. That's a virtually unbeatable double-barreled advantage
Sadly, even states that aren't engaged in partisan gerrymandering, tend to still be engaged in incumbent-favoring gerrymandering. In California, for example, electoral lines were not redrawn via computer to tilt the scales toward one political party or another. But they were redrawn to ensure re-election for all California's congressional incumbents by carving out districts containing a majority of their likely supporters.
The need to run for re-election is meant to keep the incumbent honest, and responsive to voter needs. When re-election is improperly guaranteed, the way is opened even further for corruption and for capture by special interests. Proponents of campaign finance reform are concerned about these problems -- but even if they were to succeed in all their efforts, gerrymandering might still allow these evils into Congress, through another door.
Pre-Set Elections In A Deeply-Divided Country: Why It's Especially Troubling
In sum, the arteries of our democracy are hardening. And the process is all the more tragic given that the country is narrowly and deeply divided politically.
Indeed, ironically, the non-competitiveness of so many general election races actually increases the destructive polarization of our body politic. -- in several ways
At the state level, the process of partisan gerrymandering creates the kind of deep resentments that undermine sound policymaking. But this is only part of the problem.
Real competition now occurs not in the general election but at the threshold stage of party primaries, which are dominated by Republican and Democratic party activists. These primaries tend to produce Democrats who are to the left of the center of their own party, and Republicans who are to the right of the center of their party.
Thanks to gerrymandering, these candidates still win in general election walkovers, despite their relatively extreme views. And as a result, we end up with a Congress that, in aggregate, is more polarized than the electorate as a whole. And a Congress composed of extremists on both sides of the aisle is hardly likely to come up with the kind of reasoned compromises that will truly reflect the views of the electorate. Moderates speak to one another; extremists simply declare war.
Why the Supreme Court Should Intervene in the Political Thicket of Gerrymandering
The question remains, of course, whether all this is any of the Supreme Court's business. Judicial conservatives have long argued that the Court should stay out of the "thicket" of politics as much as possible - and the state of Pennsylvania argued just that at the Court during the recent oral argument in Vieth.
Still, a strong case can be made for judicial intervention. Granted, Justices favoring judicial restraint (such as Felix Frankfurter) have warned in almost apocalyptic terms against judicial policing of election processes. But in practice their fears (Bush v. Gore notwithstanding) have generally gone unrealized.
Baker v. Carr and other Warren era decisions established the principle of one-person/one-vote. Can it be seriously argued today that these decisions were wrong to do so?
To the contrary, as powerfully advocated by John Hart Ely, the recently deceased author of the groundbreaking book Democracy and Distrust, the Court is on the soundest theoretical footing when it ensures the fairness and truly democratic nature of the political processes.
As Ely recognized, by actively policing the procedural channels of democracy, the Court enhances the legitimacy of the substantive laws that elected legislators ultimately devise. Put another way, the Court is properly concerned with policing the sausage-making process, even if it ought to stay out of the fight over the ingredients.
In the modern era, the Court already has tacitly recognized this point when it comes to racial gerrymandering. Laudably, it has declared unconstitutional redistricting plans designed to dilute the voting strength of black voters, thereby preventing the election of black candidates. And, more controversially, it has also struck down gerrymandering designed to facilitate the election of minority candidates, even in regions of the country where minorities suffered historic discrimination.
In sum, the Court has made very clear that, in its eyes, all race-based gerrymandering is unconstitutional, and that the Court will fully enforce that constitutional precept. It should do the same for political gerrymandering -- which is almost as dangerous and pernicious.
The Court has made very clear that it is wrong to effectively disenfranchise minority voters by drawing district boundaries in a way that dilutes the effectiveness of their votes. Given that fact, why is it not also unconstitutional to use the same kind of tactics to disenfranchise voters on the basis of their political affiliations and beliefs? In both cases, the principle of equal voting rights is seriously compromised.
This is a problem that the Framers would readily recognize. In setting up our republican system, one of the British political practices they sought to eliminate was the system of "rotten" boroughs that undermined true representative government in England. The safe seats created by political gerrymandering are the modern counterparts to the rotten boroughs of that era.
Recently, in McConnell v. Federal Election Comm'n, the Supreme Court upheld the main provisions of the McCain-Feingold campaign finance law. In so doing, the Court recognized Congress's authority to fight the corrupting influence of money on electoral politics.
The Court ought to follow up on this brave move by striking down Pennsylvania's challenged redistricting plan. If it does so, then it will be striking its own blow against the corrupting influences of partisanship and incumbent self-preservation on the same process.
From an institution that has not always been a friend to democracy, that would be a welcome blow indeed.
Gerrymandering is one of the most important factors
influencing elections today. And now it appears that the practice of
drawing the often bizarrely shaped districts is about to cement Republican
control of the House for at least the rest of this decade.
If you think last week's U.S. Supreme Court decision on campaign finance pleased no one, just wait until the justices weigh in on congressional redistricting.
The specific issue on which the court heard arguments Wednesday is the 19-district map of Pennsylvania, drawn up in 2002 by the Republican-controlled state Legislature. Democrats, with a 445,000 statewide voter edge over Republicans, hold only seven of the 19 seats.
The reason is obvious - and admitted. The Republicans drew the district boundaries to maximize their political advantage. The court, which has long held that it's perfectly fine to take politics into account in drawing congressional and other districts, is being asked by Democrats to say the Pennsylvania plan is too political.
It is, of course, but it's hard to see how the court could bring itself to do anything about it.
Which doesn't mean it won't try. Asked a decade ago to consider whether the North Carolina Legislature was too race-conscious in producing a districting map that gave the state its first black U.S. representatives since Reconstruction, the court said yes. The shape of the district from which Democrat Mel Watt was first elected - in some places no wider than Interstate 85 - was, to Justice Sandra Day O'Connor's mind, unconstitutionally "bizarre."
Subsequent clarifications seemed to say that while legislatures are forbidden to engage in racial gerrymandering, they may draw districting maps calculated to satisfy any number of interests, including partisan advantage and protection of incumbents.
What the court seems not to have counted on is the increased sophistication of computers, which now are capable of slicing and dicing states, as National Public Radio's Nina Totenberg put it the other day, "block by block and even house by house ... (based on) party registration, previous voting patterns, income, charitable contributions, subjects of interest and even buying patterns of the people who live in those houses. The result is that the designer can tell with near certainty which way those voters will cast their ballots."
Will the court tell legislators they can't use this powerful information?
A couple of states have tried to reduce blatant partisanship by giving the redistricting task to either nonpartisan (Iowa) or bipartisan (New Jersey) commissions. Both try to keep districts reasonably compact. Iowa tries where possible to respect county lines.
But these state efforts at bipartisanship and civility are not easily written into a judicial decree. Give the district-drawing power to politicians, and you've got to expect a political result.
It's worse than that. Staff the commissions with politically neutral paragons, and the problem remains. Should new districts, drawn after each decennial census, be as little changed as possible from the old? Should there be a requirement to draw them in a way to elect representatives in proportion to statewide party registration? Should community of interest be an overriding concern, and, if so, is race a proxy for community of interest?
All these questions suggest a standard when in fact there is none. Some of the justices, to judge from their questions during oral argument, seemed to think there should be. Justices Stephen G. Breyer and John Paul Stevens, in particular, seemed uncomfortable with the inability of a party with a clear majority to win a majority of the seats. Florida, for instance, has enough of a Democratic edge that it can elect two Democratic senators. But Republicans, who drew the district maps, hold an 18-7 advantage in the congressional delegation.
Unfair? Arguably. But as Justice Antonin Scalia put it, "How unfair is unfair?" Is it finally a matter of politics, and no concern of the courts? Can the Supreme Court deliver itself of an opinion that reasonable people can follow, or will it get stuck in the role as supreme mapmaker? Can partisan heavy-handedness reach the point where the Supreme Court will find it a violation of its own one-person, one-vote dictum?
And will whatever the court decides in the Pennsylvania case save it from having to deal with equally problematic Texas, where outnumbered Democratic legislators twice absconded from the state in order to prevent a quorum and, temporarily, block a redistricting bill?
I can't wait.
Oral arguments in the case of Vieth v. Jubelirer last week largely escaped public notice, because they took place the day the Supreme Court handed down its landmark campaign finance decision. Yet the case is crucial, and for the same broad reason that the campaign finance decision was crucial. Like the McCain-Feingold case, Vieth asks the Supreme Court to consider some of the most basic ground rules for democratic government in America: in this instance, whether the Constitution imposes any meaningful restraint on state legislatures' rigging of congressional elections by manipulating legislative districts. The court has hesitated to intervene in such matters, but redistricting is so out of control that court action is warranted.
Gerrymandering is nothing new. States are required to use the decennial census to redraw districts, and parties in power long have used the opportunity to give themselves every advantage. But sophisticated computer technology now makes it possible to draw lines with unprecedented precision. As a result, elections for the House of Representatives have become something of a farce; results of almost all of them can be predicted the day the districts get drawn. Voting is little more than a formality. As more and more representatives answer only to their base, partisanship in Washington grows and compromise is frowned upon.
In 1986 the Supreme Court said that partisan gerrymandering might be unconstitutional if it were so bald as to effectively foreclose political participation by one side or the other. Since then, though, no gerrymandering has been found to sink to that level. Courts have taken a hands-off approach, regarding the steady erosion of democracy as merely the rough-and-tumble of electoral politics. While race-conscious gerrymandering has received probing judicial scrutiny, grossly partisan gerrymandering has not. That ought to change. Redistricting that renders voters superfluous should not be acceptable when it marginalizes voters on account of their views, instead of their race.
Following the 2000 census, Republicans in Pennsylvania unapologetically undertook to rid their state of as many congressional Democrats as possible. It wasn't easy: Pennsylvania has more Democrats than Republicans. Its electorate is capable of voting for candidates of either party statewide; it went for Al Gore in the presidential race even as it has two Republican senators. Its House delegation was almost evenly split prior to redistricting. Now, however, it has 12 Republican representatives and seven Democrats. To accomplish this, the legislature packed many Democratic voters into safe districts, dispersed others among districts with solid Republican majorities and made sure that Democratic incumbents would have to run against one another to stay in office.
The court's understandable inclination to stay out of partisan disputes has become untenable in cases like this, because the redistricting system cannot be fixed by traditional political means. How many politicians are going to renounce the delicious power to pick their own voters? And what majority party will forswear in the name of reform a guarantee to retain the majority? Voters cannot register an objection -- cannot meaningfully support reform -- if the elections they vote in are all but predetermined.
The court should draw its own line at the Pennsylvania gerrymandering; otherwise there will be no constraints, and the political system will continue sliding toward ossified polarization. In upholding McCain-Feingold, the court took a dramatic step to ensure that American elections are not stained by the corrupting influence of money. Now it can help ensure that, in the elections McCain-Feingold will protect, voters will face a meaningful choice.
Like minority parties in several other states, Florida's Democrats want to take some of the politics out of the drawing of election districts by taking the job out of the politicians' hands.
With the Republicans in control of the Legislature unwilling to change the process, the Democrats are pressing to put a constitutional amendment on the ballot to create an independent commission that would handle redistricting. Its members would be appointed equally by both parties.
State Rep. Tim Ryan, who is leading the petition drive,
insisted it is
It bears the utterly uninformative title of Veith et al vs Jubelirer (docket number 02-1580). But the case, which the US Supreme Court heard yesterday, deals with the explosive political issue of gerrymandering - and its ruling next year could literally reshape America's democracy.
Veith et al vs Jubelirer involves only Pennsylvania. The state's Democrats have challenged what they say is a rigged and unfair plan to redraw congressional districts, a move approved by Pennsylvania's Republican-controlled legislature after the 2000 census.
But the case's implications are nationwide. At stake is not only control of the House of Representatives in Washington, but the very health of democracy. "This is hugely important," says Sam Hirsch, an attorney for the Pennsylvania Democrats. "Gerrymandering on this scale is corrupting US democracy. This was not what the framers of the US constitution intended."
Gerrymandering is an established American political tradition. Its name derives from Elbridge Gerry, a governor of Massachusetts who in 1811 endorsed an electoral district said to look like a salamander. "Call it a Gerry-mander," a wit said, and the term stuck.
Under the devolved US system, the map of a state's congressional districts is drawn by its legislature - not by a non- political body such as the Boundaries Commission in Britain. Changes are usually made after each 10-yearly national census.
Over the years, partisan gerrymandering has become the norm - traditional spoils for the party which wins control in a state, and then tries to design congressional districts that send the maximum number of its own to Washington.
Democrats have been as guilty as Republicans. But the growing Republican dominance at state level, combined with the wizardry of computers that draw districts to reflect voting patterns down to the tiniest street, has created an unprecedented problem.
By law, districts must be exactly the same size. The idea therefore is to pack as many of the opposing party's votes into as few districts as possible, leaving as many seats as possible in your party's hands. In closely balanced Pennsylvania, Democrats are fighting a scheme which gives a million Republicans control of 10 House seats and the same number of Democrats control of five.
Early this year Texas provided an even more spectacular gerrymandering row, as Democratic legislators fled the state for neighboring Oklahoma. Their aim was to deny the Republican statehouse majority a quorum to push through a plan to redraw districts that would hand half a dozen Democrat-controlled seats to Republicans. In the end the Democrats cracked and the scheme went through. Only the courts can prevent it taking effect.
Nationally, the consequences of gerrymandering on this scale are disastrous. "Voters no longer choose members of the House, the people who draw the lines do," says Samuel Issacharoff, professor at Columbia Law School.
The House of Representatives is almost ossified. Only 20 or 30 of the 435 seats are competitive. Add to that gerrymandering on the scale of Texas and Pennsylvania, and the Republican majority - a narrow 229 to 206 on paper - is all but impregnable.
Gerrymandering has hastened the polarization of US politics. The big threat to an incumbent is often no longer in the general election (81 of the 435 Congressmen ran unopposed in 2002) but at a primary, where radical activists dominate. Incumbents thus become more partisan. Moderate Republicans or centrist Democrats, vital for cross-party co-operation, are threatened species.
Which way the Supreme Court will lean is unclear. The 5-4 ruling in favor of George Bush at the last presidential election shows it does not shrink from political decisions.
In the past gerrymandering has been treated as a fact of life, barred only on racial grounds. "But the fact the justices took this case suggests they believe extreme political gerrymandering needs a second look," Mr Hirsch says. "We're cautiously optimistic."
Traditionally, state legislatures and courts spend the year after the national Census redrawing Congressional maps to fit the new demographic realities. The party in control of the most state legislatures and governorships at that moment in time is able to muscle through federal Congressional redistricting maps tailored to benefit itself. And then, having spent a year maneuvering for advantage, the parties back off the issue and accept that the new maps will stay in place until the next Census. That, at least, is how things have worked in the past.
Recently, however, having gained control over more state legislatures than it's had since 1952 (twenty-one to the Democrats' sixteen, plus twenty-nine governorships), the GOP has not only redrawn the state electoral maps after the Census, it has broken with the decennial tradition and rammed through redistricting plans in mid-decade, most notably in Texas but also in Colorado, where the State Supreme Court recently tossed out the Republican legislature's new plan.
This aggressive Republican drive represents a Congressional power grab unprecedented in scale and timing. It is being executed with the encouragement of White House operatives from Karl Rove on down, with the full-throttle support of GOP House majority leader Tom DeLay. And its aim is to shore up the party's Congressional majorities for the next decade.
Amid the brouhaha over redistricting in Texas earlier this year, Representative Martin Frost's office requested that Library of Congress researchers investigate when the last mid-decade redistricting occurred. David Huckabee, specialist in American national government for the Congressional Research Service, wrote back that "there are no prohibitions for states to revisit the issue of redistricting during the decade following the census, but they appear not to have done so except in response to legal action during the past 50 years." In other words, actions like those undertaken by Texas Republicans have never in living memory been launched by either political party.
"There's been a gentlemen's agreement over time by both parties that you only do redistricting in a year ending in one," explains Representative Sherrod Brown, an Ohio Democrat. "If a party gains ascendancy later in the decade, it's unprecedented to do it at the next election." Redistricting, says Rob Richie of the Center for Voting and Democracy, "is a longstanding blood-sport. The Democrats traditionally had stuck it to Republicans because they ran so many more states. But they weren't creative enough to realize they could do it mid-decade."
The Texas redistricting fight, which featured Democrats fleeing to New Mexico and Oklahoma to prevent the legislature from having a quorum and federal law enforcement officials sent into action by Republican politicians to track down the absentee Donkeys, received by far the most publicity. Wrongly, much of the media portrayed it as a quirky Texas cowboy story with no wider ramifications. In reality, however, this was a power grab orchestrated by the national Republican Party and clearly intended to consolidate power nationally.
To recap the Texas saga in brief: State Republicans, goaded by Tom DeLay and supported by DeLay-sponsored political action committees (Americans for a Republican Majority and Texans for a Republican Majority), as well as the Republican Congressional Campaign Committee, successfully broke the Democratic resistance to mid-decade redistricting. On October 13, they managed to pass a redistricting plan that all concerned agreed would likely give the Republicans an additional seven seats in the House of Representatives.
On many levels, it was a sleazy political power play. Supporters of redistricting were buoyed by having one of the country's top redistricting attorneys serving both the State of Texas and Republican lobbying groups most active in pushing for the state to implement a new Congressional map. Since May of this year, according to the Texas Attorney General's office, the State of Texas has paid three attorneys more than $200,000 to do legal work on the redistricting issue. One of them, Andy Taylor, is also being paid for his redistricting expertise by the avowedly partisan Texans for a Republican Majority. (Taylor, along with DeLay, Rove and a number of state Republican politicians, did not return my calls requesting interviews.) TRM, largely bankrolled by a Republican front organization named the Texas Association of Business, has spent the past several years working to achieve Republican control of Texas's political machine, at least in part with the intent of parlaying this power into a redistricting advantage for federal Congressional elections.
While the attorneys and the political players argued that the redistricting was solely concerned with divvying up the Texas Congressional delegation to more accurately reflect party loyalties in the Lone Star State, opponents believe that they were attempting to nullify the impact of a large number of conservative voters who split their votes between Republicans in presidential and local elections and Democrats in Congressional races.
Texas was only one part of a national strategy. In Colorado, after the Republicans won control of the state legislature in 2002, they promptly redrew a redistricting map imposed by the courts a little more than a year before. On December 1, Colorado's Supreme Court stepped into the fray, ruling that the state's Constitution only permitted redistricting once per decade, and that since the districts had already been redrawn by the courts in 2001-02, the Republicans had acted illegally by instituting a fresh round of redistricting this year. The court's majority held that "the state constitution limits redistricting to once per census.... Having failed to redistrict when it should have, the General Assembly has lost its chance to redistrict until after the 2010 federal census."
This decision has given new hope to the Texas Democratic Party in its lawsuit seeking to overturn the Republican coup. While the Texas State Constitution does not, apparently, explicitly forbid multiple redistrictings within a single decade, opponents of the redistricting plan have argued that it violates the voting rights of minorities by reducing the number of seats effectively controlled by minority voters; they have also argued that politically motivated redistricting is inherently unlawful. A three-member panel of federal judges is slated to hear the case starting in mid-December. Already Tom DeLay and other top Republicans have been subpoenaed in the case.
Yet even as these lawsuits wend their way through the courts, there are rumors that Republicans elsewhere are planning similar power grabs. In Ohio, in particular, there are rumors that Republicans are planning mid-decade redistricting.
In each state where mid-decade redistricting has become a major issue, key Republican state representatives told the media that they had been telephoned about the redistricting issue by Karl Rove. The Washington Post reported that Rove even phoned one GOP state senator in Texas who was opposed to redistricting to indicate how important this issue was to President Bush. "It was the most unbelievable raw exercise of power," recalls US Representative Diane DeGette, a Colorado Democrat. "The leadership suspended rules and just rammed it through. I talked to a number of Republican legislators and they said, 'I've got to do this. I'm being forced to do this.'" Other White House confidantes, including ex-Bush spokeswoman Karen Hughes, are also known to have discussed the issue with Texas Governor Rick Perry.
While White House officials acknowledge that Rove talked with some state legislators about redistricting, the White House and the national Republican Party have repeatedly denied that the Administration has been orchestrating a redistricting power grab. They portray the Rove conversations as the innocuous musings of one lone individual. It's a point of view Democrats aren't buying. "Rove is the national Republican Party," asserts Representative Frost. "He's the President's chief political operative. He's not doing this on his own. It would be inconceivable for him to not be doing it for the Republican Party."
In addition to the machinations in Texas, Colorado and Ohio, a particularly robust round of routine post-Census redistricting had already occurred in 2001-02 in four crucial swing states where the Republicans had control of the state apparatus. In Michigan, in 2000 the Democrats had a 9-to-7 edge in Congressional representation; in 2002, despite the Democrats' polling 49 percent, as against 48 percent for the GOP, according to the Center for Voting and Democracy, the Republicans ended up with a 9-to-6 edge in Congressional seats. In Pennsylvania, Republicans created a 12-to-7 divide instead of the 11-to-10 split resulting from the previous election. In Florida, the Republicans expanded their majority from 15-to-8 to 18-to-7, "entirely due to redistricting," according to the center's Rob Richie. Similarly, in Ohio, even before the rumors about additional mid-decade changes, redistricting had already moved a seat into the GOP column.
The US Supreme Court heard arguments on December 10 in Vieth v. Jubelirer, a case challenging the constitutionality under the equal protection clause of Pennsylvania's newly gerrymandered Congressional boundaries. Several Democratic Congressmen, the ACLU and the NYU Brennan Center for Justice have all filed friend-of-the-court briefs in the case. In the meantime, however, the redistricting maps remain in place.
All told, assuming support for the two major parties remains roughly constant, and assuming the Supreme Court does not step into the fray too aggressively, the 2001 redistricting in newly GOP-controlled Florida, Michigan, Ohio and Pennsylvania, coupled with the ongoing power grab in Texas, Colorado and possibly Ohio, could give the Republicans up to twenty additional House seats in the next election. The cumulative impact of this change will make it far harder for the Democrats to secure a Congressional majority over the course of the next several election cycles.
Beyond controlling a historically exceptional number of state polities, the Republicans have also been aided in their plans by the advent of extraordinarily powerful redistricting software. In the decade-plus since the last round of redistricting following the 1990 Census, the technology of redistricting software has improved to the point where any organization can load sophisticated mapping programs onto their operatives' laptops, plug in demographic variables and generate devastatingly accurate redistricting maps designed to concentrate or diffuse party supporters in units tailor-made to benefit one party over another.
"The fact that the software's really affordable means a lot of these groups are using it. It's about $5,000 a copy," says Howard Simkowitz, product manager for Maptitude for Redistricting, a high-selling software package produced by the Caliper Corporation. Ten years ago, explains Simkowitz, "it would have been probably ten times as much. The price is way down. We got into the redistricting market in a big way this time around. It's become a lot easier to build districts that are lopsided districts, because people can understand the data so much better. You're able to really manipulate the data quickly, to try different scenarios, to move the boundaries around and see what that means."
Parties can now work out the most effective ways either to ghettoize their opponents' votes into a small number of extremely safe seats, or dilute their votes by redrawing Congressional boundaries so as to break up voting blocs into several different districts thought to be populated by a majority from the other party. Indeed, the power of this software is mentioned in the US Supreme Court briefs as one more bit of evidence indicating that those who draw the Congressional lines now effectively control the contours of Congress.
While in theory the redistricting technology that has recently come online is party-neutral, in practice the maps produced by the party in control of state legislatures at the time the software became widely available were implemented wholesale, while the maps produced by those affiliated with the minority party are essentially little more than whimsical wish lists. Because of the current state political landscape, the advent of this technology has further played to the Republicans' advantage.
In Texas, for example, the Republicans chose to concentrate Democratic votes into a handful of massively safe Democratic seats, in the process diluting the Democratic presence in many other seats that, until this year, were considered competitive for both parties. While such practices have a long history, the precision of the new software makes it that much easier to create boundaries that are virtually invulnerable to electoral surprises. Thus it makes those in control of the map-making that much more important within the political process. Many Democrats believe the Republican strategy in Texas ultimately involves creating a handful of ultrasafe Democratic seats based on the votes of African-Americans and Latinos, while ringing these seats with safe Republican districts dominated by conservative white voters.
Absent an extraordinary collapse in levels of public support for the GOP, or a comprehensive Supreme Court ruling against the practice of out-and-out political gerrymandering during redistricting battles, the result of all this maneuvering is likely to be a Republican stranglehold on the House of Representatives for the rest of the decade. And this is despite the fact that the electorate is split virtually down the middle in its support for the two main parties. "Not counting 2002," a year in which the Republicans polled better than in recent elections, helped by the coattails effect of the wartime popularity of President Bush, "the last three elections before that had less than 1 percent difference between Democrats and Republicans," says Steve Hill of the Center for Voting and Democracy. "That's only happened seven times in the past century. It's conceivable that [as a result of redistricting] you could see Democrats winning more of the popular vote nationwide than Republicans, yet winning less of the seats."
The Republicans are playing a very risky game. As with the 2000 presidential election and the California gubernatorial recall election, by undermining the traditional time constraints on redistricting, they have carried out an end run around the accepted parameters of political partisanship. In so doing, they are greatly diminishing the ability of the country's political structures to float above the debates and passions engendered by day-to-day politicking. By impinging on the structures themselves, the Republican machine may ultimately render stable governance a halcyon vision from the past. For what one party does, the other party is sure to follow up on.
Some strategists believe that the Democrats, when they still controlled the legislature and governorship in California, should have broken up the Republican voting bloc in conservative Orange County by extending the boundaries of overwhelmingly Democratic districts from Los Angeles southward. "The Democrats had the chance to do in California what Tom DeLay is doing in Texas," states Steve Hill. "The Democrats didn't leave themselves enough opportunities to retake the House. They're going to suffer that problem now throughout the rest of the decade. This is the winner-take-all system. That's the game." Now, in the states they still control, the Democrats will likely face tremendous pressure to try to counteract the Republican seat grab in Texas and Colorado. With both Democrats and Republicans scrambling to redraw Congressional lines after each election, a downward cycle of political one-upmanship has now become a virtual certainty.
The Supreme Court Wednesday takes up a case on political gerrymandering that could affect districts across the US.
This is what the cutting edge of American democracy has come down to: a "supine seahorse" and an "upside-down Chinese dragon."
They are descriptions of the approximate shape of congressional voting districts drawn in Pennsylvania to maximize the political clout of the Republican Party.
Such attempts by statehouse politicians to rig election boundaries to benefit favored candidates or punish political enemies are nothing new, nor are they activities reserved exclusively for Republicans. But experts say political gerrymandering has never been so prevalent or so effective.
Now, for the first time in 17 years, the US Supreme Court has taken up a case to determine whether at some point political gerrymandering becomes so egregious as to violate safeguards in the Constitution.
The nation's highest court has set aside an hour Wednesday to hear oral argument about gerrymandering in Pennsylvania. The case has national implications because if the justices find a violation, it could invalidate the vast majority of the nation's heavily gerrymandered congressional districts.
Political leaders have the power to change the system themselves. But neither major party is willing to disarm unilaterally. Instead, as exemplified in legislative walkouts in Colorado and Texas over unprecedented attempts at mid-decade redistricting, the nation is spiraling toward all-out gerrymandering warfare.
"There has got to be a better way," says Robert Richie of the Center for Voting and Democracy in Tacoma Park, Md. "We are just completely outside the international norm in the way we allow legislators to draw their own districts."
Experts say gerrymandering is having a profound impact on the political process - sharply reducing the number of competitive elections to the House. For example, in 2002, only four challengers were able to defeat incumbent members of Congress, the lowest number in modern American history, according to political scientists Norman Ornstein and Thomas Mann.
Both parties are using gerrymandering to gain an advantage. Democratic lawmakers in Maryland gerrymandered longtime Republican Connie Morella out of her seat in the House, as did Democrats in Georgia to Rep. Bob Barr (R). Republicans employed similar tactics in Michigan, Ohio, and Florida.
"Partisan gerrymandering is more brazen than ever," says Burt Neuborne of the Brennan Center for Justice at New York University School of Law, in a friend-of-the-court brief. "Openly rigging control of legislatures a decade in advance is considered neither unusual nor improper."
The basic allegation in Pennsylvania is that gerrymandering undermines the concept of majority rule: Why should Republicans win 12 of 19 congressional seats, when 48 percent of the state's registered voters are Democrats and 42 percent are registered Republicans?
"It would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines," says Paul Smith of Washington, D.C., in his brief to the court challenging the Pennsylvania plan. "But when one political party guarantees itself a solid majority of seats, even if it wins only a minority of the votes, the Constitution must provide a remedy."
Those defending the Pennsylvania plan say Democrats simply lost their elections, and to be competitive, the party needs stronger candidates. "With its registration plurality, it could have won control of statewide offices and the General Assembly," says John Krill in his brief urging the court to uphold the plan. "But voters in Pennsylvania frequently and massively engage in cross-over and split-ticket voting."
There are alternatives to heavily partisan gerrymandering. Four states - Arizona, Iowa, New Jersey, and Washington - use commissions to draw congressional districts. But the combination of increasingly detailed census information and mapping software has made gerrymandering too attractive to party leaders.
One complicating aspect of the attack on gerrymandering is that similar techniques have been used to increase the chances of minority candidates winning elected office. It is unclear whether a ruling striking down the Pennsylvania plan might also jeopardize voting districts designed to elect minorities to Congress.
The high court itself a few years ago upheld a heavily gerrymandered congressional district in North Carolina that had elected a African-American member to Congress. The court ruled that the gerrymandering was political rather than racial.
HARRISBURG - Less than a year before the 2002 general election, state Republicans presented their new map of Pennsylvania's congressional districts.
It was immediately apparent the map would shake the political landscape, and it did: Two longtime Democratic congressmen lost their jobs that fall, and Republicans dominated the new delegation sent to Washington earlier this year.
Angry Democrats challenged the new map in court, arguing it was the result of blatant partisan gerrymandering.
Today, the U.S. Supreme Court will hear arguments in that case, which will determine how big a role party politics can play in the drawing of voting districts. Legal experts say that it ranks among the most important cases the court has considered in the realm of politics in the last half-century - and that its decision will shape the electoral process for decades.
"Either way the court rules, it will determine the rules of competition for the foreseeable future," said Nathaniel Persily, a University of Pennsylvania political science professor and a leading expert on election law. "That is, whether legislatures can manipulate [district] lines with abandon or whether the courts will become entrenched players in the redistricting controversy."
In 1986, the Supreme Court, which has historically ruled legislators may not discriminate on the basis of race in redistricting, held that some political influence is acceptable in partisan redistricting. But the court was not specific about what constitutes partisan gerrymandering.
Now the questions are: How much is too much partisan influence, and who, if anyone, should police the political parties drawing the maps?
State Republicans argue the judiciary should not decide such claims because the redistricting process is inherently political.
"Political matters ought to be decided by the political branches," said John Knorr, chief deputy attorney general, who is representing the state executive leaders in the case.
The court should intervene only in the most egregious cases where the democratic process has broken down, Knorr said.
But Democrats say the current state map meets that test. In their brief, the appellants called the map the result of "gerrymandering so severe that it threatens fundamental constitutional principle of majority rule."
The Pennsylvania dispute was ignited by the map drawn by the Republican legislature and approved by then-Gov. Mark Schweiker, a Republican, after the 2000 census.
In April 2002, a federal panel found the original Pennsylvania map unconstitutional. The court said the unequal-size districts violated the federal mandate of "one man, one vote," but it was allowed to remain in place through the November election.
Republican lawmakers responded by altering some of the districts slightly to balance the population distribution, and that plan, upheld by the federal court, is now being challenged by the Democrats.
Before 2002, Pennsylvania's legislative districts were uniform and contiguous. The new Republican map sliced through counties, townships and neighborhoods, leaving oddly shaped districts resembling half-finished jigsaw puzzles.
In one district, southeast of Pittsburgh, the new line ran down the middle of the street where then-U.S. Rep. Frank Mascara, a Democrat, lived.
Democrats say the bizarre district shapes reflect the partisan process that shifted the balance of Republicans and Democrats in the U.S. Congress.
Before the November 2002 election, the state's almost evenly divided electorate voted in 11 Republicans and 10 Democrats. After the state lost two seats because of declining population, Pennsylvania voters elected 12 Republicans and seven Democrats.
Here's why: The Republican plan paired three sets of Democratic incumbents and placed a fourth Democratic incumbent in a district drawn to favor a senior Republican incumbent. They also drew two new open seats for two Republican state senators to run in.
"When you calculatedly 'pack and crack' districts all the way across the state, it says to Democrats, you devalue my vote," said Robert Hoffman, a counsel for the plaintiffs.
The reshaped districts effectively ended the careers of veteran Pennsylvania lawmaker Mascara, who was defeated by fellow incumbent Democrat Frank Murtha, and Rep. Robert Borski, who decided to retire rather than run against fellow Democratic incumbent Joseph Hoeffel.
Borski, the senior Democrat on an important House transportation subcommittee, said the plan ultimately hurts the state in Washington.
"The guy who took my spot on the committee is from Illinois," he said. "He's going to be sure to take care of his state."
Attorneys for the Democrats are asking the court to establish neutral criteria for determining the shape of future districts.
"We hope the court will clarify what it said 17 years ago - that there is a limit on how far you go to protect partisan goals when redrawing district maps," said Paul Smith, an attorney with Jenner & Block representing the plaintiffs, Richard and Norma Jean Vieth of Lancaster County and Susan Furey of Montgomery County. "Legislators in a number of states, including Pennsylvania and Texas, will be in office because of partisan gerrymandering, not because they were elected by a majority of the people."
The Pennsylvania Democrats' original lawsuit, filed when Schweiker was in office, has placed Gov. Rendell in the awkward position of being a defendant in a case brought by his own party.
In a letter to the court, Rendell said he declined to file a brief because the legislation creating the districts was signed into law before he took office.
"Had Gov. Rendell been in office it is highly unlikely the congressional districts would be described as they are," wrote Rendell's chief counsel, Leslie Anne Miller.
The high court is not expected to rule in the case until after the state's April 27 congressional primaries.
If the court rules in favor of the plaintiffs, other states will flood the court with requests to strike down their maps, Persily said.
The most notable case is Texas, where Republicans won approval of a redistricting plan that Democrats say could endanger several of their 17 congressional seats.
The Texas House Democratic caucus filed a brief in support of the Pennsylvania Democrats, saying their case also demonstrates the need for the Supreme Court to clarify constitutional restraints on partisan redistricting.
Persily said political parties in Florida, Georgia, Michigan, Illinois and Maryland also will likely file suits seeking to invalidate their maps.
HARRISBURG, Pa. (AP) - Not long after the 2000 Census, the Republicans in the state Legislature used their muscle to redraw Pennsylvania's congressional map and essentially redistricted three Democratic House members out of a job.
On Wednesday, the U.S. Supreme Court will hear arguments on whether the GOP went too far, in a case that could alter the nation's political landscape by determining how big a role party politics can play in the drawing of voting districts.
A group of Democrats is asking the court to spell out rules limiting partisan gerrymandering, the practice of drawing districts to favor one party over another.
The Republicans are arguing that redistricting is inherently political and should be left to the politicians in the Legislature.
At issue is 1986 Supreme Court decision that suggested partisan gerrymandering could be unconstitutional if taken too far. However, the court did not specify what would constitute excessive gerrymandering.
If the high court backs away from that ruling, as the GOP is urging it to do, the Republicans could lock in their control of Congress for years to come, said Nathaniel Persily, a professor and redistricting expert at the University of Pennsylvania Law School in Philadelphia.
But if the justices endorse the greater judicial involvement the Democrats seek, the ruling would probably lead to legal challenges to the new congressional maps in at least a half-dozen other big states, he said.
"Once the court opens the door just a little, everyone is going to try to rush through," Persily said, summarizing the conventional wisdom this way: "If you have a chance of striking down a redistricting plan that hurts your party, you might as well make the claim, even if you think your chances of success are minimal."
The case is being closely watched by officials in Texas, where a bitter court fight over redistricting also involves Democratic charges of blatant GOP gerrymandering.
The case "really brings to the Supreme Court, for the first time in nearly 20 years now, the issue of partisan bias in its clearest and perhaps one of its more excessive forms," said Gerald Hebert, a Virginia lawyer for a group of Texas Democrats who filed a brief in support of the Pennsylvania plaintiffs.
States must redraw boundaries after every census to reflect population shifts.
Because of Pennsylvania's slower-than-average population growth, the state lost two of its 21 seats in Congress after the 2000 census.
The new 19-seat maps were approved with substantial Democratic support, but were engineered by the Republicans who control both houses of the Legislature, at a time powerful computer software makes it possible to trace voting patterns down to individual streets and houses.
Largely because of where the district boundaries were drawn, the GOP won 12 of the 19 seats in 2002, tightening their grip on the state's congressional delegation. Previously, the Republicans had 11 seats to the Democrats' 10.
The GOP acknowledges using the maps to enhance its election prospects in 2002, but insists it did nothing illegal.
"These days," said Jack Krill, the lawyer representing the state Senate president pro tem and the House speaker, both Republicans, "a gerrymander is merely a redistricting plan that somebody doesn't like."
Among other things, the new map corralled six Democratic incumbents into three districts. Two of them chose to retire rather than challenge their Democratic colleagues in the primary. In the third district, Rep. Frank Mascara was defeated by Rep. John Murtha.
In 2002, a panel of three federal judges largely upheld the new map, with minor changes.
The Democrats want the Supreme Court to build upon the 1986 decision, which involved state legislative redistricting in Indiana, and set standards for determining when gerrymandering violates the Constitution, just as the court did in outlawing racial discrimination in redistricting since the 1960s.
Department of Law
"I strongly believe this redistricting litigation should have come to an end with the Colorado Supreme Court's ruling. That was certainly my intention in bringing this issue before the State's highest court," Attorney General Salazar said. "However, with this latest effort to circumvent the high court's ruling, I have no choice but to seek to defend a lawful order applying the state constitution."
Salazar seeks intervention in order to defend the Colorado Constitution against claims that it violates federal law. As chief legal officer for the State, Salazar seeks to defend the Colorado Constitution and the Colorado Supreme Court's judgment in People ex rel. Salazar v. Davidson, Nos. 03SA133 and 03SA147, Colorado Supreme Court.
If the motion is granted, Attorney General Salazar will respond that the defendants' counterclaims are barred on several grounds, including the judicial rule that a lower federal court cannot undo a state court judgment, the full faith and credit due state court judgments, the law of claims and issue preclusion, and the well-established federal court deference due to state courts in redistricting matters.
With his West Texas twang, loping swagger, and ever-present cowboy boots, Charlie Stenholm doesnít much look like or sound like anybodyís idea of a victim. Since 1979, he has been the congressman for a sprawling district west of Dallas, and his votes have reflected the conservative values of the cattle, cotton, and oil country back home. He opposes abortion, fights for balanced budgets, and voted for the impeachment of President Clinton. His Web site features photographs of him carrying or firing guns. Through it all, though, Stenholm has remained a member of the Democratic Party, and for that offense he appears likely to lose his job after the next election.
Stenholm was a principal target in one of the more bizarre political dramas of recent yearsóthe Texas redistricting struggle of 2003. Following the 2000 census, all states were obligated to redraw the boundaries of their congressional districts in line with the new population figures. In 2001, that process produced a standoff in Texas, with the Republican state senate and the Democratic state house of representatives unable to reach an agreement. As a result, a panel of federal judges formulated a compromise plan, which more or less replicated the current partisan balance in the stateís congressional delegation: seventeen Democrats and thirteen Republicans. Then, in the 2002 elections, Republicans took control of the state house, and Tom DeLay, the Houston-area congressman who serves as House Majority Leader in Washington, decided to reopen the redistricting question. DeLay said that the current makeup of the congressional delegation did not reflect the stateís true political orientation, so he set out to insure that it did.
ìThis was a fundamental change in the rules of the game,î Heather Gerken, a professor at Harvard Law School, said. ìThe rules were, Fight it out once a decade but then let it lie for ten years. The norm was very useful, because they couldnít afford to fight this much about redistricting. Given the opportunity, that is all they will do, because itís their survival at stake. DeLayís tactic was so shocking because it got rid of this old, informal agreement.î But Texas law contained no explicit prohibition on mid-decade redistricting, so the leadership of the state government, now unified in Republican hands, tried during the summer of 2003 to push through a new plan. Democrats attempted novel forms of resistance. In May, fifty-one House members fled to Oklahoma, to deprive the new leadership of a quorum; in July, a dozen senators decamped to New Mexico, for the same purpose. But defections and the passage of time weakened Democratic resolve, and, on October 13th, the plan sponsored by DeLay was passed.
ìThey did everything they could to bust up my political base,î Stenholm told me. ìThey drew my farm and where I grew up into the Amarillo district, and they drew Abilene, where I live now, into the Lubbock district.î As a result, Stenholm will be forced to run in one of these districts if he wants to remain in the House. The new map creates similar problems for half a dozen other incumbent Texas Democrats, so the reapportionment may add as many as seven new Republicans to the G.O.P. majority in the House of Representatives and shift the stateís delegation to 22-10 in favor of the Republicans. ìPolitics is a contact sport,î Stenholm said. ìIíve been in this business twenty-five years. I will play the hand I was dealt.î
In Texas and elsewhere, redistricting has transformed American politics. The framers of the Constitution created the House of Representatives to be the branch of government most responsive to changes in the public mood, but gerrymandered districts mean that most of the four hundred and thirty-five members of Congress never face seriously contested general elections. In 2002, eighty-one incumbents ran unopposed by a major party candidate. ìThere are now about four hundred safe seats in Congress,î Richard Pildes, a professor of law at New York University, said. ìThe level of competitiveness has plummeted to the point where it is hard to describe the House as involving competitive elections at all these days.î The House isnít just ossified; itís polarized, too. Members of the House now effectively answer only to primary voters, who represent the extreme partisan edge of both parties. As a result, collaboration and compromise between the parties have almost disappeared. The Republican advantage in the House is modestójust two hundred and twenty-nine seats to two hundred and sixóbut gerrymandering has made the lead close to insurmountable for the foreseeable future.
There is, it appears, just one chance to change the cycle. On December 10th, the United States Supreme Court will hear arguments in a case that could alter the nature of redistrictingóand, with it, modern American electoral politics. The court has long held that legislators may not discriminate on the basis of race in redistricting, but the question now before the court is whether, or to what extent, they may consider politics in defining congressional boundaries. ìThere is a sense of embarrassment about what has happened in American politics,î Samuel Issacharoff, a professor at Columbia Law School, said. ìThe rules of decorum have fallen apart. Voters no longer choose members of the House; the people who draw the lines do. The court seems to think that something has to be done.î The case could well become the courtís most important foray into the political process since Bush v. Gore. As Ronald Klain, a Democratic lawyer in election-law cases, puts it, ìAt stake in this case is control of Congressónothing more, nothing less.î
The off-cycle timing of the Texas redistricting fight, as well as the farcical drama of the fleeing Democratic legislators, made the saga look like a colorful aberration. But the results of that altercation merely replicated what happened, after the 2000 census, in several other states where Republicans controlled the governorship and the legislature. Even in states where voters were evenly divided, the Republicans used their advantage in the state capitals to transform their congressional delegations. In Florida, the paradigmatically deadlocked state, the new district lines sent eighteen Republicans and seven Democrats to the House. In the Gore state of Michigan, which lost a seat in redistricting, the delegation went from 9-7 in favor of the Democrats to 9-6 in favor of the Republicansóeven though Democratic congressional candidates received thirty-five thousand more votes than their Republican opponents in 2002. (The Michigan plan was approved on September 11, 2001, so it received little publicity.) Pennsylvania, which also went to Gore, had one of the most ruthless Republican gerrymanders, and it is the one being challenged before the Supreme Court.
After 2000, Pennsylvania lost two seats in Congress, and its legislature had to establish new district lines. Republican legislative leaders there engaged in no subterfuge; they candidly admitted that they intended to draw the lines to favor their party as much as possible. In the midst of the battle over the Pennsylvania plan, DeLay and Dennis Hastert, the Speaker of the House, sent a letter to the Pennsylvania legislators, saying, ìWe wish to encourage you in these efforts, as they play a crucial role in maintaining a Republican majority in the United States House of Representatives.î The Republicans in Harrisburg used venerable techniques in redistricting, like ìpacking,î ìcracking,î and ìkidnapping.î Packing concentrates one groupís voters in the fewest possible districts, so they cannot influence the outcome of races in others; cracking divides a groupís voters into other districts, where they will be ineffective minorities; and kidnapping places two incumbents from the same party in the same district.
Frank Mascara was kidnapped. A Democrat first elected to Congress in 1994, Mascara represented a district in the rugged industrial country south of Pittsburgh. ìMy district had been more or less the same for about a hundred years,î Mascara told me on the porch of his house in Charleroi, which overlooks a glass-making plant on the banks of the Monongahela River. The son of a steelworker and the first member of his family to go to college, Mascara worked his way through county politics until he won his seat in the House. ìA lot of people couldnít believe that a congressman lived in a house like mine,î he said, noting its aluminum siding and probable resale value of about thirty-five thousand dollars. ìBut thatís the kind of guy I am,î he said. ìI go to church down the street. I represent the average person.î
With the Republicans in charge in Harrisburg, Mascara knew he would be little more than a spectator to the redistricting process. ìI still thought my district would for the most part remain intact,î he said. ìThat didnít occur.î Mascara had met me at a McDonaldís in Charleroiís ragged downtown, and then led me to his home on a quiet street called Lincoln Avenue, where we parked because he has no garage. From his porch, he pointed to our cars. ìThe cars are in the twelfth congressional district, and my house is in the eighteenth,î he explained. ìWhen they drew the new lines, they started in Allegheny County, which is north of here, and made, like, a finger out of that district, and the finger went down the middle of the street where I live. The line came down to my house and stopped.î The Republicansí meticulous line-drawing through Charleroi was designed to force Mascara into a primary battle with his fellow-Democrat John Murtha, which it did. Murtha defeated Mascara, ending his congressional career and reducing the Democratic presence in the House by one.
The Republicans carved up Pennsylvania into many strangely shaped districts, which won monikers like the ìsupine seahorseî and the ìupside-down Chinese dragon.î Such nicknames for gerrymandered districts go back to the origin of the term, which was coined as an epithet to mock Massachusetts Governor Elbridge Gerry, who in 1811 approved an election district that was said to resemble a salamander. Like most gerrymanders throughout history, the Republicansí creation in Pennsylvania produced the desired results. Even though a Democrat, Ed Rendell, won the governorship in 2002, Republicans in that election took control of twelve of the nineteen House seats.
Democrats accomplished less in the 2000 redistricting cycle only because they controlled fewer states and thus could do less to protect their interests. DeLayís mid-cycle reapportionment may be without precedent, but Democrats have their own inglorious history of gerrymandering. Before the Texas coup this year, the most notorious redistricting operation in recent years was the one run by Representative Philip Burton, following the 1980 census in California, which transformed the Democratsí advantage in House seats there from 22-21 to 27-18. In 2002, a Democratic plan in Maryland turned that delegation from being evenly divided to a 6-2 Democratic advantage, and Georgia Democrats gained two seats in the House even though in the same election voters rejected a Democratic governor and a Democratic United States senator. In California, where Democrats also controlled the process, they settled for protecting incumbents of both parties. There, in 2002, not one of fifty general-election House challengers won even forty per cent of the total vote.
There is no doubt, though, that on balance the 2000 redistricting cycle amounted to a major victory for Republicans. Even though Al Gore and George W. Bush split the combined vote in Florida, Pennsylvania, Ohio, and Michigan, Republican control of the process meant that, after redistricting, the G.O.P. now holds fifty-one of those statesí seventy-seven House seats. ìThe important thing to realize was in 1991 the Republicans had control of line-drawing in a total of five congressional districts,î one G.O.P. redistricting expert told me. ìIn 2001, it was almost a hundred seats. Both parties made the most of it.î
The transformation of congressional redistricting began long before the 2000 census, and the crucial issue was race. In the early nineteen-sixties, the Supreme Court, under Chief Justice Earl Warren, transformed American politics by enforcing the principle of one man, one vote, and requiring that all legislative districts contain the same number of people. Before these decisions, which started with the famous case of Baker v. Carr, in 1962, Southern (and some Northern) states had designed districts so that black voters had no meaningful say in Congress. Later in the decade, the Voting Rights Act established the principle that not only did blacks have the right to vote but they had to be placed in districts where black candidates stood a good chance of winning. The act, which was one of Lyndon B. Johnsonís most important civil-rights initiatives, led to the election of many more black members of Congressóand was a classic demonstration of the law of unintended consequences.
ìWhen the civil-rights movement started, you had a lot of white Democrats in power in the South,î Bobby Scott, a congressman from Virginia who was first elected in 1992, said. ìAnd, when these white Democrats started redistricting, they wanted to keep African-American percentages at around thirty-five or forty per cent. That was enough for the white Democrats to keep winning in these districts, but not enough to elect any black Democrats. The white Democrats called these ëinfluenceí districts, where we could have a say in who won.î But Republicans sensed an opportunity. ìThey came to us and said, We want these districts to be sixty per cent black,î Scott, who is African-American, said. ìAnd blacks liked that idea, because it meant we elected some of our own for the first time. Thatís where the ëunholy allianceí came in.î
The unholy allianceóbetween black Democrats and white Republicansóshaped redistricting during the eighties and nineties. Republicans recognized the value of concentrating black voters, who are reliable Democrats, in single districts, which are known in voting-rights parlance as ìmajority-minority.î As Gerald Hebert, a Democratic redistricting operative and former Justice Department lawyer, puts it, ìWhat you had was the Republicans who were in charge for every redistricting cycle at the Justice Departmentóí81, í91, í01. And there was a kind of thinking in the eighties and in the early nineties that if you could create a majority-minority district anywhere in the state, regardless of how it looked and what its impact was on surrounding districts, then you simply had to do it. What ended up happening was that they went out of their way to divide and conquer the Democrats.î The real story of the Republican congressional landslide of 1994, many redistricting experts believe, is the disappearance of white Democratic congressmen, whose black constituents were largely absorbed into majority-minority districts.
It was a version of the unholy alliance which may doom Charlie Stenholm and his fellow Texas Democrats. All the congressmen who are likely to lose their jobs in the new DeLay plan are white. Many of their black constituents have been transferred to safe Democratic seats, where they canít harm Republicans. The unholy alliance has had the additional side effect, especially in the South, of making the Democrats the party of blacks and the Republicans the party of whitesówhich presents daunting long-term political problems for the Democratic Party. Many Democrats canít help but express a perverse admiration for the cleverness of the strategy. Benjamin Ginsberg, a Republican redistricting operative who helped to construct the unholy alliance during the 1990 cycle, referred to the initiative as ìProject Ratfuck.î
Since the 2000 cycle, these Republican gains have locked in and even expanded. To see how this was done, I asked Nathaniel Persily, a genial assistant professor of law and political science at the University of Pennsylvania, to visit my office and bring his laptop. Persily, who is thirty-three, has built a reputation as a nonpartisan expert and occasional practitioner in the field of redistricting.
Before 1990, most state legislators did their redistricting by taking off their shoes and tiptoeing with Magic Markers around large maps on the floor, marking the boundaries on overlaid acetate sheets. Use of computers in redistricting began in the nineties, and, as Persily demonstrated, it has now become a science. When Persily opened his computer, he showed me a map of Houston, detailed to the last census block. (The population of each block usually ranges from fewer than a dozen to about a thousand.) ìThis is the same map that DeLayís people used to redistrict,î Persily said. Indeed, DeLayís political operation purchased ten copies of the software, which is called Caliperís Maptitude for Redistricting and costs about four thousand dollars per copy. The software permits mapmakers to analyze an enormous amount of dataóparty registration, voting patterns, ethnic makeup from census data, property-tax records, roads, railways, old district lines. ìThereís only one limit to the kind of information you can use in redistrictingóits availability,î Persily said. (In Pennsylvania, Republicans used Carnegie-Mellon Universityís mainframe computer, which would have allowed them to add even more data, such as real-estate transactions.)
With a few clicks, Persily changed the map from one that showed party registration in each census block to one that revealed voting results in each block. The colors ranged from dark red, for heavily Democratic votes, to dark blue, for strongly Republican. He showed voting results in about two dozen races, from President to governor and from congressman to local offices. ìThe whole process has got much more sophisticated,î Persily went on. ìParty-registration data are not the only kind of data you want to use. You want to use real election results. Thatís a big change from ten years ago. We have become very good at predicting how people are going to vote. Peopleís partisanship is at a thirty-year high. If I know you voted for Gore, I am better able to predict that you are going to vote for any given Democrat in a future election.î
I asked Persily to give me a demonstration of how to draw district lines. He moved his mouse to the border between two congressional districts. A ledger on the top half of the screen showed that one of the districts, as currently configured, had about forty thousand more people than the other one. ìThe Supreme Court has said that the requirement of one man, one vote means that each district must have exactlyóexactlyóthe same number of people,î Persily explained. An early version of the Pennsylvania plan was rejected by the courts because the districts were just nineteen voters apart, in districts of about a half million people. Requirements for that sort of precision virtually mandate the use of computers for redistricting.
Persily zeroed in even more closely, and a little donkey popped up inside one of the census blocks. ìThatís where the local congressman lives, a Democrat,î he explained. ìWe have little elephants for the Republican incumbents.î The program seemed easy to use, justifying the boast, on the software companyís Web site, that you could ìstart building plans thirty minutes after opening the box.î Persily chuckled. ìAt a certain point, you admire the video-game appeal of all this.
ìThere used to be a theory that gerrymandering was self-regulating,î Persily explained. ìThe idea was that the more greedy you are in maximizing the number of districts your party can control, the more likely it is that a small shift of votes will lead you to lose a lot of districts. But itís not self-regulating anymore. The software is too good, and the partisanship is too strong.î
The effects of partisan gerrymandering go well beyond the protection of incumbents and the guarantee of continued Republican control. It has also changed the kind of people who win seats in Congress and the way they behave once they arrive. Jim Leach, a moderate Republican and fourteen-term congressman from Iowa, has watched the transformation. Leach agrees with Richard Pildes on the numbers: ìA little less than four hundred seats are totally safe, which means that there is competition between Democrats and Republicans only in about ten or fifteen per cent of the seats.
ìSo the important question is who controls the safe seats,î Leach said. ìCurrently, about a third of the over-all population is Democrat, a third is Republican, and a third is no party. If you ask yourself some mathematical questions, what is half of a third?óone-sixth. Thatís who decides the nominee in each district. But only a fourth participates in primaries. What is a fourth of a sixth? A twenty-fourth. So itís one twenty-fourth of the population that controls the seat in each party.
ìThen you have to ask who are those people who vote in primaries,î Leach went on. ìThey are the real partisans, the activists, on both sides. A district that is solidly Republican is a district that is more likely to go to the more conservative side of the Republican part of the Party for candidates and platforms. Presidential candidates go to the left or the right in the primaries and then try to get back in the center. In House politics, if your district is solidly one party, your only challenge is from within that party, so you have every incentive for staying to the more extreme side of your party. If you are Republican in an all-Republican district, there is no reason to move to the center. You want to protect your base. You hear that in Congress all the time, in both partiesóëWeíve got to appeal to our base.í Itís much more likely that an incumbent will lose a primary than he will a general election. So redistricting has made Congress a more partisan, more polarized place. The American political system today is structurally geared against the center, which means that the great majority of Americans feel left out of the decision-making process.î
Scholarly research gives some support to Leachís impressions. ìPartisan gerrymandering skews not only the positions congressmen take but also who the candidates are in the first place,î Issacharoff, of Columbia, said. ìYou get more ideological candidates, the people who can arouse the base of the party, because they donít have to worry about electability. Itís becoming harder to get things done, whether in Congress or in state legislatures, because partisan redistricting goes on at the state level, too.î Among members of the House, partisan redistricting has also bred an almost comic sense of entitlement to landslides. In a hearing on the post-2000 reapportionment in New York, Representative Benjamin Gilman, an upstate Republican, said that during the 1982 redistricting he was promised by the majority leader of the state senate that ìif I accepted that challenge of a fair-fight district, I would never again be asked or forced by the state to face that prospect of a fair fight once again. . . . I think it would be unfair not only to myself and my district to face that divisive prospect once again.î
With partisan gerrymandering, House members in effect pay a penalty if they reach out too much to members of the other party. ìWhat is laughable is the basic premise of what is going on,î Charlie Stenholm, the endangered Texan, said. ìThe great sin I committed is that I won the last election 51-47 in a district that went 71-28 for President Bush. But I am a conservative Democrat, and thatís why these people vote for me. There shouldnít be a penalty for reaching out across party lines.î If Stenholm and his ilk disappear, they will be replaced by reliable Republicansówho wonít have to worry about their own chances for reÎlection.
The question before the Supreme Court later this month is not whether partisan gerrymandering is wise but whether it is constitutional. The issues are strikingly similar to those faced by the Warren Court in the early sixtiesóand the stakes may be as large as well. The framers of the Constitution designed the House of Representatives to reflect the popular will. James Madison, in the Federalist Papers, said the House was meant to be a ìnumerous and changeable body,î where the members would have ìan habitual recollection of their dependence on the people.î While the House was supposed to be impetuous, the Senate was intended to be stable. Madison said that senators would serve six-year terms as a defense against ìthe impulse of sudden and violent passionsî of the House, and the members of the Senate were to be elected by state legislators, providing a further level of insulation from the popular will. (The Constitution was amended to require direct election of senators in 1913.) The Senate had to remain stable, Madison wrote, because ìevery new election in the states is found to change one half of the representatives.î
Today, the House and the Senate have precisely flipped roles. Senate races, which are not subject to redistricting, are decided by actual voters, who do indeed change their minds with some regularity. Control of the Senate has shifted five times since the nineteen-eighties. The House, by contrast, has changed hands just once in the same period, in the Republican takeover of 1994. In 2002, only one out of twelve House elections was decided by ten or fewer percentage points, while half of the governorsí and Senate races were that close. In 2002, only four House challengers defeated incumbents in the general electionóa record low in the modern era. In a real sense, the voters no longer select the members of the House of Representatives; the state legislators who design the districts do.
The question, then, is what, if anything, is unlawful about that? The legal debate on that question is especially stark. In the case now before the Supreme Court, Pennsylvania Democrats argued that the Republican gerrymander denied them equal protection of the laws, asserting in their brief that it is ìunconstitutional to give a Stateís million Republicans control over ten seats while leaving a million Democrats with control over five.î The Republican response is to say, in effect, ìWelcome to the big leagues. State legislatures have always played this kind of hardball, the courts ought to stay out of the game altogether, and thereís no such thing as a nonpartisan solution.î Justice Sandra Day OíConnor, a former Arizona state senator herself, may have put the argument best when, in the mid-eighties, the Supreme Court last considered a political-gerrymandering case. According to Justice William Brennanís notes of the courtís internal debate, OíConnor said that any legislative leader who failed to protect his partyís interest in redistricting ìought to be impeached.î
In that case, a challenge to the congressional-reapportionment plan in Indiana following the 1980 census, a plurality of the justices said for the first time that a partisan gerrymander might, in theory, violate the equal-protection clause. But in the 1986 decision the court ruled that the Indiana plan did not violate the Constitution. Indeed, the court said that the Constitution was not violated unless one political party was ìessentially shut out of the political process.î According to Heather Gerken, of Harvard, ìThe court set the bar so high for constitutional violations that no one has ever successfully fought a partisan gerrymander anywhere since 1986. Political parties are never totally ëshut outí of the processóthey raise funds, put up candidates, make speeches. So these challenges have always lost. By taking the Pennsylvania case, the court seems to be saying that itís time to get back in the process.î
The best argument for Republicans in the Pennsylvania case, it seems, is that itís simply not the courtís business to scrutinize legislative maps for partisan gerrymandering. ìRedistricting deals with inherently political questions,î J. Bart DeLone, the senior deputy state attorney general who will argue for the case for Pennsylvania, said, ìand those questions should be left to the political branches of government, where they belong, not to the courts. Then you are trying to measure things that have no standards unless you are making political judgments.î Still, this is a Supreme Court that has not hesitated to tell politicians what to do. ìItís an extremely confident court,î Gerken said. ìThey second-guess Congress, states, state judges all the time. They are deeply engaged in the democratic process. I canít imagine that this is anything but an effort to pull in the reins of partisan gerrymandering.î
But how? The Democrats propose a rule based, in part, on the Courtís race jurisprudence. In a series of cases in the nineties which challenged some of the majority-minority districts, the Court held that it violated the Constitution for states to gerrymander congressional districts exclusively for racial reasons. ìThe rule now is, You canít draw ugly districts if itís purely for race,î Sam Hirsch, one of the lawyers for the Pennsylvania Democrats, said. ìThe rule should be, You canít draw ugly districts if itís purely for politics, either.î But Hirschís adversary, DeLone, pointed out, ìThere is a fundamental difference between race and politics. Racial classifications are inherently suspect. If you are doing something specifically because of race, we are always going to take a hard look at it. Not only are political judgments O.K. but we expect them.î Since itís been so long since the Supreme Court addressed the issue, most election-law experts see the Pennsylvania case as difficult to handicap, and the key factor may simply be how bad the justices believe the problem of partisan gerrymandering to be.
In any case, the situation appears to be getting worse, even as the Pennsylvania case has been pending. While Texas was shifting its districts, the governing Republicans in Colorado did their own mid-cycle reapportionment, to solidify their hold on the one House seat in the state that produced a close election in 2002. (Legal challenges to the new Texas and Colorado districts are now pending.) At one point, the Democrats who control Oklahoma and New Mexico threatened retaliation, but the Party lacks a DeLay-like figure to press the issue. One state that has gone its own way is Iowa, which turned redistricting over to a nonpartisan civil-service commission after the 2000 census. Consequently, four of Iowaís five House races in 2002 were competitive, so a state with one per cent of the seats in the House produced ten per cent of the nationís close elections. The rest of the country will follow only, it seems, if the Supreme Court requires it.
When it comes to drawing political boundaries, there never was a golden age of statesmanship. ìWhen we Democrats controlled the legislature, sure we protected Democrats,î Charlie Stenholm said. ìBut we didnít do harm to the Republicans who were in office. This thing today is a whole different order of magnitude.î On his porch in Charleroi, Frank Mascara said the issue is a lot bigger than he is. ìIím through, Iím done, out of politics,î he said. ìIt wonít affect me one way or the other. But the system is now totally out of whack, and that matters to a lot of people. Itís not about me, itís about power on a national scale.î
Wall Street Journal
If you listened closely when the Colorado Supreme Court decision in Salazar vs. Davidson was handed down Monday, you could hear the sound of one hand clapping.
The ruling restored the congressional district lines drawn by a state judge in 2002, handing the Democrats a psychological victory, even though what they really could use is a few victories at the polls.
Still, they had reason to gloat.
The majority on the court said that, yes, the attorney general had the right to bring the case, and yes, the courts may handle redistricting duties if the legislature fails to agree on a plan, and no, the legislature cannot redraw congressional district boundaries any time it gets the urge.
The justices cited the importance of accountability and stability, tiptoeing gingerly around the elephant and the donkey in the middle of the room.
The role of partisanship in the process was never mentioned.
So while this is a momentous decision for the individuals involved in this bitter controversy, it soon will be overshadowed by a case that is more audacious, relevant and potentially precedent-setting nationwide.
Next week the U.S. Supreme Court will hear oral arguments in Vieth vs. Jubelirer, the Pennsylvania redistricting case, which dares to ask the shocking question: Should partisanship even be allowed in the process?
When the justices rule on this one next year, the response could be deafening.
"If they side with the plaintiffs on this case, it will be one of the most important Supreme Court cases on law and politics in the last 50 years," said Nathaniel Persily, assistant professor of constitutional law at the University of Pennsylvania Law School.
If the Republican-dominated court throws out the redistricting plan conceived by a Republican majority in Pennsylvania and signed by a GOP governor, it would be "open season" on gerrymandering, Persily said.
The plaintiffs in Vieth contend that drawing congressional districts for the purpose of minimizing the chances that a certain party's candidates will be elected is unconstitutional.
Never mind that it's been the magnificent obsession in state after state for decades - it could be thrown out.
If you doubt that's possible, consider this: At one time it was groundbreaking for the court to insist on numerical proportionality in congressional districts. That was the 1964 one-man, one-vote ruling.
"It's an interesting question why they took this case," said Persily. Usually the court steers clear from redistricting cases because they are considered a "partisan thicket," destined to damage the image of the independent judiciary, he said.
But the controversies involving redistricting in Colorado and Texas this year may have pushed the issue onto the docket.
"They may want to send a signal that there are some limits to the greediness of incumbent political parties that want to entrench themselves," Persily said.
While partisan greed is hardly new, it has become more voracious.
Partisanship is "at a 30-year high," said Persily, and voters are behaving more predictably than ever.
Part of this is a direct result of gerrymandering producing "safe" congressional districts where elected officials feel little need to compromise or broaden their appeal.
Further, the political parties have become enormously powerful with extremely well-financed national operations that leave almost nothing to chance.
But most important, technology has revolutionized redistricting. So much sophisticated data can be analyzed at once now, congressional districts intended to guarantee certain results can be drawn to cynical near-perfection. Only 10 to 15 percent of congressional districts are competitive anymore.
Neither party has the monopoly on this approach, of course. But it's not surprising that support for ginning up some kind of nonpartisan, bipartisan, independent commission for the purpose of drawing congressional districts usually comes from those in the minority party.
Several states, including Iowa, Arizona, Washington, Montana and New Jersey, have created such systems.
State Sen. Ken Gordon, D-Denver, and Rep. Michael Merrifield, D-Manitou Springs, on Tuesday announced plans to introduce a bill in the next legislative session that would create a bipartisan group similar to the commission charged with legislative redistricting to handle future congressional boundaries.
But while Persily acknowledges the mess that "partisan greed" has made of the electoral process, he is hardly an unabashed fan of so-called "independent" commissions.
"In American politics, we've tried our best to craft independent offices," he said. But getting the partisanship out of politics is like trying to take the sex out of porn.
Just look at what happened with the independent counsel statute, he said. "Would you trust Ken Starr to be in charge of redistricting?"
Now that's a frightening image. And it's a reminder that when it comes to vain political self-interest, things can always get worse.
Diane Carman's column appears Sunday, Wednesday and Friday.
WHEN IT STRUCK down the attempt by the Colorado legislature to draw new congressional districts between census cycles, that state's supreme court sounded an important alarm about a genuinely alarming development. The mid-cycle redistricting by the Colorado General Assembly garnered a lot less attention than the high-profile slugfest in Texas -- both because it would shift fewer seats in the U.S. House of Representatives to Republicans and because Democratic legislators did not flee the state to block its passage. But like the Texas effort, which also is facing court challenge, the Colorado redistricting scheme would have set a dangerous precedent for a redistricting system that is already corroding democracy nationally with partisan machinations designed to deprive voters of electoral choice. The court's decision is legally dicey in key respects, but the rule it declares is one that ought to prevail throughout the country: Redistricting should occur in a timely fashion after a census, and districts should then be left alone until the next census.
Even without mid-cycle redistricting, the system by which the states draw congressional lines is a mess crying out for reform. Under it, state legislators and governors conspire together to create safe seats for partisans and to redistrict members of opposing parties (often moderates) out of their seats. The result is that in most seats, congressional races are not seriously contested, and the nation's politics become ever more polarized. The only good news about this sorry picture has been that redistricting doesn't happen often -- only when the seats get reapportioned among the states following the once-a-decade census. Yet in the current census cycle, Republicans decided to do away with this norm. If they succeed, there will be little to stop radical changes in a state's congressional delegation whenever one party or the other gains control over the institutions of that state's government. The ugliness of redistricting warfare would become a permanent state of affairs.
The Colorado Supreme Court, by a 5 to 2 vote, declared such a prospect constitutionally impermissible. The ruling interprets only the state constitution, so it has no effect outside Colorado. The majority's reading of state law also seems a bit strained. The state's constitution requires redistricting when a new census has been conducted. But it is far from clear that it forbids redistricting at all other times or forbids the legislature from replacing a court-imposed plan -- which is what happened in this instance. That said, if the court is pushing a legal line, it is pushing back against a most aggressive and dangerous legislative course. Somehow, state governments are going to have to gain control over a process that is unraveling in an ever-worsening spiral.
We would like to think the political system is capable of self-correction. But redistricting -- arguably even more than campaign finance -- implicates the self-interest of policymakers in a fashion that makes reform a bit hard to imagine. Gerrymandering districts ensures those in power the ability to remain in power, and to augment that power. It makes them less accountable to voters, because it lets them choose the voters who will then elect them. Not many politicians are willing to pass up such a deal. At least in Colorado, there now are some limits to how much further this corruption can go.
One of today's popular myths is that we've become a more
"polarized" society. We're said to be divided increasingly by
politics (liberals vs. conservatives), social values (traditionalists vs.
modernists), religion (fundamentalists vs. everyone else), race and
ethnicity. What's actually happened is that our political and media elites
have become polarized, and they assume that this is true for everyone
else. It isn't.
New York Times
American politics are like that too. For a rather long stretch of recent history, Congress operated rather like a friendly dinner party. Even if there were plenty of people on the left who didn't much like people on the right, there were also enough moderate Republicans, conservative Democrats and pragmatists, in general, to keep legislation passing, committees functioning and voters voting. Where the rules and regulations didn't quite fit the circumstances, collegiality papered over the cracks.
For better or for worse, we don't live in that world anymore, and I see no point in feeling nostalgic for it. To the extent that the rise of partisanship reflects the existence of greater passions, on both the right and the left, maybe it's a good thing that politics can channel them. If it means some people are shouting louder than they used too, it's too bad. Either way, it's clear that the rules of doing political business, as opposed to the time-hallowed habits and customs, have suddenly taken on a new importance.
To see what I mean, look at one extremely small issue: Last week, as Congress was struggling to get out of town for Thanksgiving, a sandbox fight broke out over whether the Senate should vote to confirm a handful of presidential appointees, among them the ambassadors to Saudi Arabia and Syria. As far as I could tell, there was no major substantive objection to any of them. But Senate Democrats, made grumpy by the contentious passage of the Medicare legislation, said they were annoyed by the Republican failure to appoint a promised bipartisan election commission. Republicans said they didn't like some of the members of that election commission. I'm sure there were other reasons too -- but the upshot is that Democrats blocked the confirmations and we won't have ambassadors in several important places for several critical months. In the old days it might have been okay to barter and deal over confirmation hearings, as is the Senate's custom. Now, we'd be a lot better off if there were a rule -- how many appointments have to be confirmed in how much time -- that everyone knew they had to follow.
The case for rules is much stronger where there are major issues involved. The urge to gerrymander congressional districts to somebody's advantage isn't new, but at least it used to take place in regular, 10-year cycles, following a census - meaning either party might lucky enough to be in charge. Now the Texas legislature has broken with precedent and redrawn its electoral districts after only two years, hoping to get more Republicans elected. Colorado's legislature did the same. We've seen the results: Texas Democrats fleeing the state, state troopers sent to arrest them, lawsuits and more lawsuits. The Colorado redistricting was struck down this week by the state's Supreme Court. Without a few rules -- mandating that redistricting take place only every 10 years or requiring districts to be drawn, as in Iowa, according to a simple grid -- it won't be long before redistricting, like judicial confirmations, becomes another endless form of national agony, regardless of who's in power.
I'll admit, heavy regulation isn't the most inspiring way to run a political system: One would like to think that a shared sense of national purpose would be enough to keep Congress functioning. But without the collegiality that so many now say they always despised, there isn't a choice. A chilly, polite dinner is more bearable than one that ends with guests stomping out the door -- and a system that functions according to the rules is better than one that doesn't work at all.
The armchair political analysts and veteran pollsters
may be yawning just a bit, numbed by the prospect that today's elections
in Virginia aren't likely to shake up the partisan order in Richmond, even
though voters will be filling all 140 seats in the state legislature. Yet
Northern Virginians in particular have strong reasons not to fall asleep
at the switches, to cast ballots that could spell the difference when the
votes are tallied. A number of state Senate and House of Delegates
contests in this region are considered competitive; in addition, important
local elections will determine how counties provide services that
residents have come to expect.
The recent redistricting of Texas, promoted and directed
by Houston's congressman and House Majority Leader Tom DeLay, reminds us
that it is not just countries like Zimbabwe, Azerbaijan and Chechnya that
rig their elections.
In Massachusetts, prior to the election of 1812, the party in power was facing defeat when the governor, Elbridge Gerry, redrew districts to consolidate his party's strength and weaken that of the opposition.
A local newspaper editor thought one tortuously drawn
district resembled a salamander and coined the word used ever after to
describe the product of partisan redistricting- a "gerrymander."
Political standoff is morphing into paralytic farce in the Texas Legislature. A special session ended in Austin yesterday with Democrats holding fast in their out-of-state exile against a brazen attempt by the House majority leader, Tom DeLay, to pick up six seats by gerrymandering incumbent Democrats out of power. The 11 Democratic state senators who foiled the power grab by fleeing last month are still in New Mexico, vowing to stay there as long as necessary. Gov. Rick Perry is just as firm in doing Mr. DeLay's bidding, promising another special session to once more seek redistricting - the only question is when.
All that Mr. DeLay and the Texas G.O.P. machine have achieved thus far is months of laughter and groans at the spectacle of such hardball politics. Republican state senators are trying to penalize the boycotting Democrats with fines of $5,000 a day and spiteful revocations of parking and cellphone privileges. "We are tired of sitting here," said Lt. Gov. David Dewhurst, a Republican. Tell that to Mr. DeLay, who has been relentless in trying to plump up his edge in House seats and hardly shy about applying state and federal law enforcement pressure on the Democrats.
The Republicans insist that voter trends justify the extraordinary remapping. But their impatience is scandalous. The lines were redrawn two years ago by the courts after the Legislature failed to act. This out-of-season gerrymandering - years before the next census - presents a new standard for tooth-and-claw politicking that the nation does not need.
Push a stone up a hill long enough, and sooner or later it might even stay put. That's how we feel watching the sudden spate of media and Democratic Party interest in the scandal known as "gerrymandering," or politically rigged redistricting.
This is one of our hobbyhorses going back 20 years, and it's nice finally to have some company. Much of this newfound outrage, to be sure, is because Republicans are now using their political muscle to carve out House district lines that hurt Democrats. "Democrats Unlikely to Retake House: Redistricting Is Biggest Obstacle," mourned a recent Washington Post story. We don't recall this making Page One when the losers were Republicans, but never mind. The Post is right this time around.
The GOP has discovered that designing uncompetitive House districts can inflate, or perhaps prolong, a majority. Democrats did this throughout the 1980s, most notably in California. Now Republicans are returning the favor in states where they dominate the government, especially in the South and West.
After the 2000 Census, Republicans mapped out Florida with the precision of a plastic surgeon. The state's voters divided 50-50 in the 2000 Presidential race, but the GOP gerrymander produced such lopsided House districts that Republicans hold 18 Florida seats and Democrats only seven. The politically mixed Tampa-Orlando area has 10 Republicans but only two Democrats, in part because the GOP packed minority voters into those two safe Democratic districts.
Democrats and the media are especially incensed by the GOP's current efforts to gerrymander Texas, and they have a point. The GOP is trying to redraw House seats for the second time this decade, when the tradition is only once after every Census. Angry Democrats in the legislature have now fled the state twice to prevent the quorum that Republicans need to push it through.
Of course, Republicans must be wondering why they didn't think of that when the Democrats were doing the same to them. Texas is among the most Republican states in America, with the GOP holding every statewide elected office. Yet because of the residue of previous Democratic gerrymanders that still held sway in 2002, Democrats rule the Texas House delegation, 17-15. Democrats are literally, if extralegally, fleeing for their political lives.
The liberal media reaction to this has been to bang their spoons on their high chairs against Tom DeLay and Karl Rove, as if Democratic operatives wouldn't behave precisely like these two Republicans. Allow us to suggest a more productive response: How about challenging the entire process of partisan gerrymanders? Modern redistricting is now so precise, using computer models and voter identification, that it is taking the politics out of House elections. Incumbents in both parties conspire to design seats so safe that the vast majority of House races are now uncompetitive.
As the nearby table shows [below], with the exception of the 1994 GOP landslide, incumbents are once again all but a sure thing. Worse, the percentage of incumbents winning with 60% of the vote or more is also increasing--hitting 83% in 2002. No more than 50 (and usually fewer) of the 435 House elections are even up for grabs anymore, and this in the branch of government that the Founders designed to most closely reflect the will of the people. Whether this favors Republicans or Democrats at any one time, it's never good for democracy.
This strikes us a natural for the political reform crowd. If they ever tire of trying to stop water from flowing downhill--a k a purging money from politics--our liberal media mates could take up a cause that would actually make a difference. Independent commissions, rather than politicians, have produced much more competitive districts in Iowa and Washington, and they'd be worth promoting nationwide. The gerrymander is a bipartisan scandal, so we welcome all the reform help we can get.
The first special session of the 78th Texas Legislature died Monday on a high note: No new congressional district lines. It was the best possible result.
But Gov. Rick Perry wouldn't leave well-enough alone, and he immediately called another special session -- but not before 11 Senate Democrats fled the Capitol to Albuquerque, N.M., which has a friendly Democratic regime and is beyond the reach of Texas Department of Public Safety troopers.
As long as the 11 Democrats stay away from the Texas Senate, it cannot conduct business, because it lacks a quorum. Their absence blocks the GOP-ruled Legislature from redrawing the congressional lines for the sole purpose of electing more Republicans from Texas to the U.S. House of Representatives.
The Senate Democrats have taken an extraordinary action, rare but not unprecedented. In May, 51 House Democrats went to Oklahoma on the same issue. Given the circumstances, we think the senators' decision to flee is defensible.
There is, first, no clamor from the people of Texas for new congressional districts. No court has ordered it. Such redistricting is customarily done by lawmakers shortly after a new Census, not three years into the decade.
Republicans, led by U.S. House Majority Leader Tom DeLay, complain that the current map -- drawn by a federal panel of three judges after the Legislature failed to do the job in 2001 -- is unfair because it resulted in the election of 17 Democrats and 15 Republicans, although the GOP otherwise dominates state offices. But at least five districts that elected moderate or conservative Democratic representatives voted consistently for Republicans in other races. In other words, Republicans didn't lose because district lines were drawn to beat them, but because the voters in those districts broke party ranks to vote for a Democrat they liked.
Furthermore, the maps approved by the House and the Senate Jurisprudence Committee are generally awful. The Senate committee map, for instance, would split Travis County three ways, with one district snaking all the way to the Texas-Mexico border, and another over to the Houston suburbs. Many rural Texans of both parties were upset with the House map, believing it used rural and small-town areas only to fill out districts heavily dominated by suburban voters.
Lt. Gov. David Dewhurst has said he would set aside a longstanding Senate tradition requiring a two-thirds vote to bring a bill up for debate in order to let the Senate vote on a redistricting bill. In other words, he would set aside tradition not for an issue of supreme importance to the people of Texas, but for partisan gain.
If the Legislature adopts a new congressional plan for Texas, it might never take effect; it would be subject to lawsuits, not to mention the required review by the U.S. Department of Justice.
There's simply no need to redraw the lines. There was no need for one special session, never mind two. There's no need to waste another $1.7 million, the estimated cost of each special session, plus millions more on legal fees to fight the inevitable court battles that will follow. No other business of the Legislature needs to be done.
Lawmakers should go home.
Something is afoot in the Lone Star state. In May, Texas Democrats fled the state to avoid giving Republicans the quorum they need to gerrymander district lines. Now they're battling it out in a special session of the state legislature. But that drama is only the tip of a huge story that goes to the core of our democracy.
A series of bipartisan deals during the reapportionment of Congress following the 2000 census has effectively taken away our ability to elect or to change the House of Representatives. The effect has been to give congressmen of both parties lifetime tenure rivaled only by Supreme Court justices.
Every decade brings a partisan food fight in which the Democrats and Republicans grapple with one another for advantage as they draw new congressional district boundaries. The results usually doom dozens of incumbents to an early demise as they face voters who know them little and like them less. After the 1980 census, 43 incumbents bit the dust. After 1990, 39 lost their seats. But, as a result of the bipartisan deals, only 16 lost in the first election after the 2000 census.
It gets worse. Eight House incumbents lost to other incumbents and four others were defeated in their own party primaries. A grand total of four House members lost their seats to challengers from the other party in the 2002 elections. That's less than 1% of the House. While states are passing term limits, Congress is engineering lifetime tenure.
The gerrymandering of 2002 differs from that in any other year. Normally, the parties go for the jugular, seeking to destroy as many opposition incumbents as possible. This time, the party in power in each state negotiated Democratic voters into Democratic districts and Republicans into GOP areas so as to protect one another's incumbents.
Where Democrats ran the state government, as in California, they sought to protect their incumbents even at the expense of giving up their hopes for a House majority. With 53 congressional seats in the nation's largest state, only one incumbent -- Gary Condit -- had to look for new work after election day.
The Republican legislatures were usually more aggressive, seeking to win marginal seats to prolong their control of the House. But, in the process, they drew the lines of swing districts to keep core Democratic voters outside their boundaries, putting them, instead, into districts already represented by Democrats where they could do no further harm to GOP ambitions.
As a result of these shenanigans, only about 20 of the 435 seats in the Congress are actually in play in a typical election year. Ninety-five percent of the incumbents are safe and, therefore, 95% of the voters are effectively disenfranchised. Meanwhile, the institutional arrogance of these tenured politicians can grow unmolested by the vagaries of electoral fortune.
So, even as the U.S. becomes more evenly divided between the parties than ever before, a seat In the House of Representatives is as secure as any civil-service job. The only reason U.S. Senate seats stayed competitive is that the politicians cannot gerrymander state lines.
For all the attention showered on the influence of money in electoral campaigns, almost nobody has focused on the impact of gerrymandered district lines. Senate and governorship races are fought with bank accounts these days. But House races are fought with maps, computer simulations, and sharp red pencils.
As a result, party bosses can enforce a discipline over their congressional delegations that would have made Boss Tweed smile. Every congressman knows that his fate is tied to how the lines are drawn. Independent congressmen -- Connecticut's Jim Maloney, for example -- find themselves gerrymandered into hopeless races against incumbents of the other party. A member who toes the line and "always voted at his party's call and never thought of thinking for himself at all" (courtesy of Gilbert & Sullivan) gets rewarded with the modern equivalent of the old pocket boroughs of 19th-century Britain.
The solution? Tiny Iowa has passed a law establishing a nonpartisan reapportionment commission and explicitly prohibiting it from taking political factors like incumbency, party or voting habits into account. The result? Four of the 20 competitive seats in the House come from this state with but 1% of the U.S. population.
James Madison said the House should be the body most reflective of popular passions. He never met today's partisan mapmakers.
Mr. Morris, formerly an adviser to President Clinton, is the author of "Off With Their Heads: Traitors, Crooks and Obstructionists in American Politics, Media, and Business" (Regan, 2003).
ATLANTA - Forget campaign-finance laws, term limits or ethics reform. Quit dreaming about fair-campaign pledges, public financing or any other political reform attempt.
With just one change -- one relatively minor adjustment in the mechanics of the political system -- we could make elections more fair, politicians more responsible, government more wise and political discourse in this country more polite and issue-oriented.
All that, with just one little change.
Today, politicians in most states get to draw up their own congressional and legislative districts. Using computers and software specially designed for the task, they manipulate each state into districts that tend to be either heavily Democratic or heavily Republican. The goal is to protect incumbents by drawing them "safe seats" that their party dominates.
Take the Georgia Senate as an example. Because the redistricting process created districts so lopsided toward one party or the other, only 28 of the state's 56 Senate races -- exactly half -- even featured two names in last year's general election. In the remaining half, nobody from the opposing party even bothered to run.
And of the 28 contested races, most were contested in name only. Overall, only eight of the 56 Senate races were decided by 5 percentage points or less. Most of the rest were decided by margins such as 65 percent to 35 percent.
To an incumbent, that means the system worked perfectly. To the rest of us, it means that most voters were denied any meaningful voice in who represents us in the state legislature. No wonder voter turnout continues to decline.
The system has other consequences as well, few of them positive. Because we are all herded into highly partisan districts, our elected representatives have no incentive to appeal to the moderate middle. A Democratic politician in a district that votes 60 percent Democratic, for example, will play to that base and feel no need to even pay lip service to the 40 percent that votes Republican. In effect, that 40 percent has been robbed of their vote and influence.
Furthermore, with Democrats appealing largely to Democrats and Republicans appealing largely to Republicans, political positions tend to become more extreme, as does the rhetoric. The sight of hyper-Republicans and hyper-Democrats going at it in Washington or even at the state capitoa can easily make the more reasonable, moderate American lose faith not just in political leaders but in the system that produced them.
Now, imagine instead a system that uses the same computers and software to make every congressional and legislative district as politically balanced as possible. A particular district might lean 51-49 one way or the other, but in general the goal would be to make as many districts as possible as competitive as possible.
Suddenly, you've created a dynamic that encourages cooperation, moderation, pragmatism and a decent respect for the opinion of others. You've also set a system that penalizes politicians who try to appeal to the margins. With that change, you might even begin to moderate the increasingly bitter partisanship that now poisons public discourse.
The system closest to that described above is operated by Iowa, where a nonpartisan bureau handles redistricting chores instead of the legislature. The bureau is forbidden by law from even considering partisan voting patterns, and the impact is noticeable. Last year, for example, only six of Iowa's 47 state Senate seats went uncontested in the general election.
Unfortunately, any move toward adopting such a system would have to be made by the same state legislators who now control the system, which isn't likely. On the other hand, the U.S. Supreme Court has now agreed to hear a case out of Pennsylvania charging that the redistricting map in that state was so partisan that it robbed citizens of full representation.
There's no question that the current system has that exact effect. The question is whether the court is truly willing to confront the issue. For the sake of our democratic republic, it should do so.
Jay Bookman is deputy editorial page editor of The Atlanta Journal- Constitution. Contact him at [email protected]
DENVER -- The bill was introduced on a Monday, passed on Wednesday and signed into law on Friday. There was minimal debate and no time for public comment. Still, Colorado statute SB-352 could be a political milestone: the first successful application of a new tactic being pushed by Republican leaders in Washington.
The Colorado law redraws the borders of all of the state's congressional districts -- just two years after the redistricting that followed the 2000 Census. The sole purpose, as leaders of the Republican-controlled legislature confirm, was to strengthen the party's majority in the state's congressional delegation.
A similar effort at re-redistricting failed in May in Texas, when Democratic legislators decamped to Oklahoma, making a quorum impossible in the state House of Representatives. But on Monday, Texas Republicans started to try again; Gov. Rick Perry (R) has called a special session to redraw that state's 2001 congressional map. The session is to run for 30 days, making it harder for Democrats to thwart action.
If Texas this time follows the Colorado model, Democrats have warned that they might retaliate, redrawing congressional district maps to strengthen their party in New Mexico and Oklahoma, where Democrats control both the legislature and the governor's office.
"This is a political strategy we haven't seen before," said Tim Storey, redistricting analyst for the National Conference of State Legislatures. "People who study this area can't find any case in the last 100 years of mid-decade redistricting without a court order."
Colorado's new congressional map, passed on straight party-line votes in the last half-hour before the legislature adjourned May 7, has been dubbed the "midnight gerrymander." GOP legislators have been roundly condemned in the local media for violating the state's generally congenial political traditions. "Children, children, what do you think this is? New Jersey?" complained Denver Post political columnist Fred Brown.
GOP leaders are unapologetic.
"Nonpartisanship is not an option," state Senate President John Andrews wrote in a newspaper column responding to critics. "There are only two kinds of Congress to choose from: one where . . . Republicans hold the majority, or one where . . . Democrats do."
Republicans won five of the state's seven House seats in the 2002 election. But Andrews contended that the GOP seats had to be made safer, particularly in the new suburban Denver district and in the sprawling district that makes up the western half of the state. "The Democrats' failure to win either seat in 2002 was small comfort," Andrews said. "The numbers were going to favor them in time."
"Redistricting is almost always a corrupt business," notes Robert Richie, executive director of the Takoma Park-based Center for Voting and Democracy. "But what just happened in Colorado is really disgusting, because what they had before was one of the best districts in the country in terms of being responsive to the voters."
In an era in which most congressional districts are drawn to guarantee safe seats for one party or the other, Colorado bucked the trend after the 2000 Census. The state's new 7th Congressional District was designed to be a political tossup, with one-third of the voters Republican, one-third Democratic and one-third unaffiliated.
Sure enough, the suburban Denver district produced the closest House race in the nation last fall. After several recounts, Republican Bob Beauprez won the seat by 122 votes out of 162,938 cast.
For Republican leaders, that margin was too close, particularly with Democrat Mike Feeley likely to run again in 2004. The legislature's new map gives Beauprez a safe seat, with the most Democratic parts of the 7th Congressional District moved to other districts.
For good measure, Feeley's home was redistricted out of the district, making it nearly impossible for him to challenge Beauprez next year. Beyond the 7th Congressional District, the new Colorado map involves many familiar features of the gerrymandering genre.
Heavily Hispanic Pueblo County has been divided down the middle, so its traditionally Democratic vote will be diluted within two strong Republican districts.
The new map removes the Democrats' stronghold of Aspen from the western-slope district, making that district much safer for Republicans.
Aspen's vote has been shifted into a K-shaped district centered on the university town of Boulder -- about a five-hour drive from Aspen -- so that the two Democratic cities will be in the same district.
Colorado Attorney General Ken Salazar, a Democrat, has challenged the re-redistricting in the state's Supreme Court, saying the state constitution authorizes only one districting plan per decade. A group of Democratic voters has filed a second challenge to the GOP measure in a lower state court.
"I wouldn't be surprised if this case goes to the U.S. Supreme Court," said David Fine, the Denver attorney representing the plaintiffs. "Somebody has to decide whether it is legal to redistrict without a new census requiring it."
The trend to create safe congressional districts is a major reason that House incumbents almost never lose and that retiring members are almost always succeeded by members of the same party.
In the 2002 election, 38 of the 435 House races were considered competitive, with margins of victory less than 10 percentage points. Only four House members lost their seats to challengers in 2002; four others were beaten by fellow incumbents.
WASHINGTON, June 27 ó Taking up a highly charged issue of partisan politics, the Supreme Court agreed today to decide whether Pennsylvania's Democrats were victims of an unconstitutional partisan gerrymander at the hands of the Republican-controlled Legislature in Congressional redistricting after the 2000 census.
The case will be argued in the court's next term. It was one of five new appeals that the justices granted on a final cleanup day before the summer recess. In the absence of any retirement announcements in this final week, the prospect that any member of the court is planning to retire this year appears extremely remote, last-minute rumors to the contrary.
Pennsylvania, where registered Democrats outnumber Republicans by 3.7 million to 3.2 million, lost two seats in the House of Representatives as a result of the last census. The Legislature then drew new district lines with the goal of favoring Republicans to the greatest degree possible.
In two districts, pairs of Democratic incumbents were required to run against one another. Another Democratic incumbent was placed in a heavily Republican district. Counties were split and districts given highly irregular shapes in order to create Republican supermajorities.
As a result, the state's Congressional delegation went from 11 Republicans and 10 Democrats to 12 Republicans and 7 Democrats.
Three Democratic voters sued in federal court, claiming that the redistricting had deprived them of their right to equal protection. A 1986 Supreme Court decision in a partisan gerrymandering case from Indiana opened the door to this constitutional argument, but the decision provided few guidelines for its application and has been invoked reluctantly and inconsistently in the lower courts.
A special three-judge federal district court in Harrisburg dismissed the Democrats' case on the ground that they had not demonstrated sufficient injury, which the court defined as being "completely shut out of the political process." In their appeal, the Democrats are asking the justices to take a new look at the 1986 precedent, Davis v. Bandemer, and "clarify that extreme partisan gerrymandering is not only justifiable in theory but remediable in actual practice."
For their part, the Republican legislative leaders are asking the court instead to overturn the precedent and remove political gerrymanders from the jurisdiction of the federal courts. This was the position expressed in dissent in the 1986 case by Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist, who was then an associate justice. Warren E. Burger, who was then chief justice, also dissented in Davis v. Bandemer.
The Pennsylvania legislative leaders told the justices in the case today that the fears the dissenters expressed in 1986 had come to pass as partisan battles were shifting from the political arena to the courts.
"To permit challenges to duly-enacted Congressional redistricting legislation on the basis of partisan gerrymandering delegitimizes the political process," the Republicans' brief said.
The case is "incredibly significant," said one election law expert, Richard Pildes of New York University Law School. He said gerrymanders of one kind or another have helped create district maps that have left the great majority of House seats uncompetitive.
Partisan gerrymander battles have erupted in Michigan and Florida. In Texas last month, House Democratic lawmakers fled to Oklahoma to deprive Republicans of a quorum for a redistricting plan, while in Colorado, Republicans succeeded last month in accomplishing a favorable and highly unusual second postcensus redistricting.
"We are losing the ability to put on meaningful elections," Professor Pildes said in an interview. "It's become a terrible problem in the system. It's become almost like the Middle East ó both sides recognize that the situation isn't good, but they can't let go. There needs to be outside intervention."
He said the court's decision to hear the case, Vieth v. Jubelirer, No. 02-1580, might reflect the justices' recognition of a problem that requires their attention.
The Pennsylvania Democrats, represented by a Washington lawyer, Paul M. Smith, quoted judges and scholars who have recently called on the court to address partisan gerrymandering. Richard A. Posner, the federal appeals court judge in Chicago, argued in a recent book that "judicial insouciance" toward partisan gerrymanders and the creation of safe seats had undermined "electoral competition, the lifeblood of democracy."
In rejecting the Democrats' case, the district court in Pennsylvania said that in order to bring a successful challenge to a partisan gerrymander, plaintiffs must show that they have been not only outmaneuvered, but also cut out of the political process, to the extent of not being able to register, organize, campaign or raise money.
This was a good 24 hours for Mr. Smith, the Democrats' lawyer; he made the winning argument in the gay rights case the court decided on Thursday. By coincidence, Bowers v. Hardwick, the precedent the court overruled on Thursday, was decided on the same day in 1986 as Davis v. Bandemer, the gerrymander decision at the center of the new appeal.
New Dem Daily
We made our views known on the Medicare drug issue yesterday, but the way the House went about handling it illustrated a problem that's broader and deeper than bad draftsmanship. The U.S. House of Representatives is becoming something of a joke: an institution with almost no real deliberation, very little real debate, and very little accountability to voters, either for individual Members or for the party that runs it like a private club. As Mark Gersh of the National Committee for an Effective Congress explains in the next issue of Blueprint magazine, the decennial process of redistricting the House has become a scientific exercise in incumbent protection that is steadily reducing marginal districts, reinforcing Republican control, and polarizing the House and the two parties towards the ideological extremes. And as Gersh suggests, if we want to revitalize the House, give Democrats a fighting chance to control it, and help make Congress more representative of the centrist views that dominate the U.S. population, it's essential to change the process of redistricting in a way that gets it out of the hands of incumbents and their allies.
The trend towards an unaccountable House is unmistakable. The incumbent re-election rate in the House has risen to 98 percent in the last three House elections. And the number of House incumbents who have lost their seats -- aside from the handful who are deliberately gerrymandered out of office or who fall prey to some personal scandal -- has been dropping, too. By Gersh's reckoning, incumbent losses averaged 18 per election in the 1970s, 16 in the 1980s, 20 in the 1990s, but dropped to 6 in 2000 and just one in 2002.
At the same time, the number of competitive seats has dropped rapidly. As recently as 1994, more than 100 House seats were in serious play. As of 2002, says Gersh, "only 40 to 45 seats out of 435 can be called competitive. In 2002, more than 80 percent of House seats were won by margins of 20 percentage points or more. In my view, only seats won by margins of 4 points or fewer are truly competitive; there were only 15 of these in the entire nation in 2002." As Gersh and others have pointed out, the 229-206 Republican margin in the House looks vulnerable on paper, since a swing of twelve seats would wipe it out. But if you only have 15 toss-up districts, that's a very difficult hill to climb barring a huge swing in public opinion.
All these trends are genuinely perverse given the constitutional role of the House. The Founders designed it to closely reflect public opinion, given the direct election of Members and the short, two-year terms. Now most Members in effect run for 10-year terms, and report less to their voters than to the national parties and interest and advocacy groups that determine their power within the House and their value in the next redistricting. As Gersh puts it: "The decline of marginal districts has a polarizing effect on House politics, and, indirectly, on all politics. Safe seats lock in the left-liberal tendencies of the Democratic Party, and the right-wing dominance of the Republican Party. They ignore the public will. That's not good for the country because it creates an intransigent Congress that can't accomplish anything."
Compounding this problem is the fact that state legislatures, which conduct redistricting for the U.S. House and for themselves, are beginning to reflect the same trends towards bipartisan incumbent protection and elimination of swing districts. For example, in the round of self-redistricting prior to the 2002 elections, the California Assembly essentially eliminated all swing districts, seeking explicitly to assign every Assembly seat to one party or the other for a decade. With a comfortable Democratic majority in the Assembly, California liberal activists decided it was more important to "purge" moderate Democrats in primaries than to take additional seats away from the Republicans. And sure enough, self-described "progressives" won an impressive string of primary victories over moderate incumbents and challengers alike, while leaving Republicans alone.
The California experience shows another aspect of how redistricting is polarizing legislatures: as swing districts vanish, incumbents realize the main threat to their survival is likely to come from a primary opponent rather than a general election opponent. So they move Left as Democrats or Right as Republicans to consolidate their hold on the party "base." The roughly one-third of the national electorate that is independent by one definition or another, and the one-half of the electorate that self-identifies as "moderate," is in danger of losing representation altogether.
What to do about it?
Gersh points to two possible solutions. Congress has the power -- only used in the case of protecting minority voting interests in the Voting Rights Act -- to set conditions on its own redistricting. It could, if it chose, change the system and require districts that are more logical and compact -- and competitive. That, of course, is about as likely as Congress approving term limits, though a large, abrasive, bipartisan campaign to force them to do so might have some impact.
Alternatively, states could "take redistricting completely out of partisan hands. We should, at a minimum, consider putting redistricting under the control of state commissions balanced in party make-up, with perhaps one independent member in the case of ties. Independent commissions in Iowa and Washington produced much more competitive redistricting after the last census -- four of Iowa's five seats are competitive."
However we fix it, it's time to get moving on reinventing redistricting before another census arrives and the fix goes in again.
Editor's Note : This article is from the upcoming issue of BLUEPRINT magazine.
In 2002, Democrats fell short for the fourth straight time in their effort to regain control of the U.S. House of Representatives. To the surprise of most observers, Republicans actually gained House seats for the first time since 1994.
The conventional wisdom on this outcome is that President George W. Bush made the midterm elections into a referendum on his post-Sept. 11 leadership in the war against terrorism. Other analysts have pointed to a superior GOP get-out-the-vote effort, or to better candidate recruitment.
While all these factors probably had an impact, the overriding obstacle to a Democratic takeover of the House was set in place long before the midterm election campaigns -- by the congressional reapportionment and redistricting after the 2000 Census. In fact, this process gave Republicans an advantage that will be difficult for Democrats to overcome before the next decennial redistricting.
To a lot of people, this seems counterintuitive. To the untrained eye, the House appears fairly evenly divided: 229 Republicans to 206 Democrats. That suggests that the nation favors Republicans by 5.2 percentage points. But if you judge by presidential voting behavior -- the purest indicator of national political sentiment -- the nation really is much more evenly split: almost 50-50. Al Gore won more of the popular vote in 2000, but Bush won 239 congressional districts to Gore's 196. That shows how redistricting can tilt the scales in the House.
The basic trend in redistricting, reinforced after the latest census, is incumbent protection. This means the creation of as many safe, noncompetitive districts as possible. The number of competitive districts -- those that might change from one party to the other in any given election -- is declining dramatically. The number of incumbents who lost in the general election fell to an average of 16 in the 1980s, 12 in the 1990s, six in 2000, and -- if you control for redistricting and scandals -- zero in 2002. We've reached the point where incumbents just can't lose. Never before has there been such a preponderance of safe seats. And that is bad news for the minority party in the House -- Democrats, who must win an overwhelming percentage of marginal seats to regain power.
Aside from the incumbent-protection racket, Republicans did a better job of gerrymandering House seats in the relatively small number of states where one party or the other was in charge of redistricting and willing to use its advantage.
The best example was Florida. We know from the 2000 presidential election results that Florida is, in terms of political sentiment, the most evenly divided state in the union; Bush won the state by only 500 votes. So if Florida's congressional seats properly reflected the state's politics, its 25-seat delegation would be divided roughly in half. Instead, it has 18 Republicans and only seven Democrats. That shows the power of redistricting built around the creation of safe seats -- and the power of technology that allows very precise map-drawing. It also demonstrates the partisanship that is driving redistricting these days.
In Florida, exhibit A is the central region in the Tampa-Orlando axis. It's a huge population center, and hugely important. Forty percent of the state's voters live there. The region has 12 congressional districts, and it's a politically competitive region -- unless you redistrict it in such a way as to make it noncompetitive.
Look at recent elections. The 2000 presidential vote in the Tampa-Orlando area was split down the middle. So its 12 House seats should be divided roughly six to six. Instead, there are 10 Republicans and two Democrats. Why? Because of very clever gerrymandering by a Republican-controlled legislature. The lines were drawn not only to keep high-probability Democratic voters, like minorities, bunched together in two districts with major urban populations in Tampa and Orlando, but also to carefully disperse probable Republican voters throughout the other 10 districts, giving them a 55-45 advantage in almost every one. A Democratic legislature, by the way, could have drawn lines to create exactly the opposite effect. That shows how manipulative redistricting can be. District lines are just a contrivance of somebody's partisan inclinations.
In California, where Democrats are the majority, they did it differently. The line-drawers were able to make all the marginal seats safer. Therefore, incumbents of both parties -- 33 Democrats, 20 Republicans -- are all but guaranteed re-election until the next redistricting. The same thing happened in the second largest state, New York.
In 2002, 80 of 82 House races in California and New York were won by more than 10 percentage points -- and one other was won by 9.6 points. This means that in the nation's two most populous states, controlling about one-fifth of the entire U.S. House of Representatives, there are almost no competitive races.
The creation of an overwhelming preponderance of safe seats has the effect of nullifying politics. In other words, no matter how the voters feel, about 90 percent of the districts are now preordained to go to a certain party because of sophisticated gerrymandering. In many cases, this was agreed to by both parties, because all incumbents -- Democrats and Republicans -- like incumbent protection plans. In states where one party clearly dominated, incumbents sat down in a room and drew a map that favored them all. Call it consensual gerrymandering.
This is, unfortunately, the trend all over the country. Lack of competition is the new watchword of congressional politics. Today only 40 to 45 seats out of 435 can be called competitive. Another 20 can be competitive when public opinion favors one party. In 2002, more than 80 percent of House seats were won by margins of 20 percentage points or more. In my view, only seats won by a margin of 4 points or fewer are truly competitive; there were only 15 of these in the entire nation in 2002.
The decline of marginal districts has a polarizing effect on House politics, and, indirectly, on all politics. Safe seats lock in the left-liberal tendencies of the Democratic Party, and the right-wing dominance of the Republican Party. They ignore the public will. That's not good for the country because it creates an intransigent Congress that can't accomplish anything. Today the Democratic Party caucus in Congress certainly appears to be to the left of the country, to the left of recent (and likely future) presidential nominees, and probably to the left of most people who call themselves Democrats. That's not healthy -- especially at a time when old stereotypes of Democrats as weak on national security and too addicted to Big Government are re-emerging.
Besides redistricting within the states, Democrats were also disadvantaged by the reapportionment among the states that followed the 2000 Census. In keeping with a 30-year trend, congressional seats continued to move from the North into the Sunbelt; 12 seats migrated to the South, where the voting is trending Republican. Every state that gained one or two new seats had voted for Bush in 2000 -- with the exception of California. In the 2002 congressional races, Republicans won seven of the new seats and Democrats won five. And the obverse is also true: Of the 12 seats given up by Northern states, more had been held by Democrats than by Republicans. So Democrats took a hit coming and going.
Another important factor in redistricting is demographics. You can't elect Democrats anywhere in America -- except possibly New York City -- without a substantial minority population in a district. Even in presidential elections, Democrats are winning only about 42 percent of the white vote nationally. In the South, especially in rural areas and in exurbia, it's closer to 30 percent. That's why in the formerly Democratic "Solid South," the trend toward Republicans is continuing. As elderly Southern Democratic conservative members of Congress depart, they're being replaced by Republicans.
If one analyzes the districts where one party enjoys a 70 percent or 80 percent lock on the vote, 44 of them went for Gore and 17 for Bush in 2000. That tells us that the Democratic vote is completely locked inside a slew of urban areas. This means it is not "efficiently" dispersed throughout the country.
What to do? Clearly, there's something fundamentally undemocratic when more than 80 percent of our people's representatives don't really have to run for re-election. It's as though they are being elected to 10-year terms instead of two-year terms. We need to look for remedies, not only for the sake of the Democratic Party but for the sake of our political process. We need to find ways to avoid a spiral of gerrymanders that skews the playing field toward the ruling party and puts a fair chance of political upset out of the reach of the opposition party, no matter how persuasive its ideas.
One way to break this system is to take redistricting completely out of partisan hands. We should, at a minimum, consider putting redistricting under the control of state redistricting commissions balanced in party make-up, with perhaps one independent member in case of tie votes. Independent commissions in Iowa and Washington state produced much more competitive redistricting after the last census -- four of Iowa's five seats are competitive.
Alternatively, either though legislation or through a court case, we could ban partisan gerrymandering. Under current case law, partisan redistricting and incumbent protection is explicitly allowed. A suit could be brought to try to change that. Line-drawers, whether political or independent, could be forced to follow criteria such as compactness, community of interest, and proximity rather than simply the principle of creating safe seats.
Yet, even as Democrats try to change the fundamental rules, there are things they can do to try to win within existing ones. First they need to absorb and recognize what really happened in 2002 -- that they were steamrollered, not by George W. Bush, but by the latest redistricting. This means they must prepare for real hand-to-hand combat by the time of the next redistricting. (It even could come earlier if any other states than Texas attempt to redraft redistricting in midstream; Texas Democrats showed themselves ready for the fight when they dodged the Republican seat-grab scheme last May by simply leaving the state.) They should study districts that show a history of Democratic presidential voting but that now have a Republican representative. More than 30 districts that Gore carried elected a Republican House member. Most of these are in the Northeast and in the suburbs of central cities elsewhere. Those seats should, with the right candidate, be rich targets for Democrats.
Finally, Democrats have to focus on changing their image on the so-called cultural issues if they are to regain the ability to compete in rural or exurban districts. While Democrats have done a good job of inoculating themselves on economic issues, a lot of voters suspect the party of excessively liberal views on welfare, immigration, gay rights, guns, religion, and other cultural issues. Democrats must learn to swim against the tide, address negative perceptions of the party, and broaden the battlefield of competitive districts. Otherwise, Democrats may spend a long time in the wilderness before seriously challenging Republicans for control of the House.
Mark Gersh is Washington director of the National Committee for an Effective Congress.
Hoping to expand the GOP majority in the House of Representatives, state legislators in Colorado and Texas are taking second shots at redrawing their congressional boundaries to create more Republican-leaning districts.
The process, which has infuriated Democrats, could add a half-dozen seats to the 15 that Republicans now hold in Texas, and improve the reelection prospects of a Colorado Republican who won by a thread last year.
The actions are unusual because states traditionally redraw congressional districts only once a decade, to reflect population changes recorded in the latest census, taken in 2000. But just two years after Colorado and Texas adopted new maps, their Republican-controlled legislatures are seeking to change them again. Their goal is to create additional GOP-leaning districts by packing Democratic voters into areas already represented by Democrats, which would leave more Republican voters for rearranged districts that can be switched from narrowly Democratic to narrowly (or comfortably) Republican.
Republicans hold a 229 to 205 advantage over Democrats in the House, where there is one independent. A handful of new GOP-leaning districts would enhance their chances of holding the majority at least through the 2010 census and subsequent redistricting.
Top House Republicans, such as Majority Leader Tom DeLay (R-Tex.), are helping to orchestrate the strategies playing out in Austin and Denver. DeLay flew to the Texas capital yesterday to urge passage of the GOP plan. Asked recently why he is devoting so much energy to a proposed map that could oust as many as seven House Democrats next year, he replied bluntly: "I'm the majority leader, and I want more [Republican] seats."
These state battles have become high drama, with late-night sessions, accusations of stolen maps and charges of racism from both parties. The Colorado legislature completed its work late Wednesday, redrawing House boundaries to shore up the reelection hopes of Rep. Bob Beauprez (R), who won by 121 votes last year. Democratic legislators, who derisively hoisted photos of Beauprez during the debate, vowed to challenge the plan in court.
Rep. Diana DeGette (D-Colo.), watching the debate in the Colorado capital, said: "We're not going to lie down and take it." She was hardly the only Washington-based politician following the action closely. The White House acknowledged yesterday that top political adviser Karl Rove spoke by phone with a GOP legislator during the debate.
"We know why this is happening" in Colorado and Texas, said Nathaniel Persily, a law professor at the University of Pennsylvania. "Control of the House of Representatives hangs in the balance."
Democrats in Texas, like their Colorado counterparts, are poised to file lawsuits. It's unclear, however, how judges might rule on a strategy that legislators haven't used since the 1950s. Lawmakers employed the tactic more frequently in the late 19th century, long before federal courts started weighing in on redistricting, said Michael McDonald, a government and politics professor at George Mason University. "This is new in the modern history of the United States," he said.
Before the last election, Republicans and Democrats in Colorado and Texas deadlocked over how to redraw congressional lines and had to turn to the courts for new maps. Republicans made major legislative gains in Texas and Colorado in last year's elections, and now say they're simply completing a job they couldn't finish last time.
Working with DeLay, Texas state Rep. Phil King (R) has crafted a plan that would transform the state's congressional delegation from its current 17-to-15 Democratic advantage to one where Republicans could have a 20-to-12 edge after the 2004 election.
The Texas House could approve King's plan as early as Saturday, and Gov. Rick Perry (R) is ready to sign it. But the plan faces a tough battle in the state Senate, where it needs a two-thirds majority.
Republicans said they hoped some Democratic senators would back it because the new map creates two Hispanic-majority seats without an incumbent, and a new African American majority district. While Democrats acknowledge that the reconfigured map could provide political openings for a handful of ambitious senators, they predicted Democrats would maintain party unity and block the plan.
Democrats are mulling over a retaliatory strike in New Mexico, where they recently won the governorship and could conceivably push through a redistricting plan during a special legislative session this fall. A state court imposed a plan last year that largely preserved the status quo -- two Republicans, one Democrat -- after then-Gov. Gary Johnson (R) vetoed a plan by the Democratic-controlled legislature.
This game of tit for tat worries some congressional scholars.
"It just opens up a whole can of worms," McDonald said. "Instead of voters selecting representatives, it's representatives selecting voters."
As observers with a unique perch in American politics, we have a close-up view of hundreds of election races and candidates. From that position, we're able to analyze contests and outcomes in exceptional detail, and reach conclusions based on mountains, rather than hillocks, of evidence. That's why we were a bit mystified by the post-Nov. 5 conventional wisdom that American voters gave Republicans a clear and convincing mandate. On the contrary, our conclusion is that the United States remains evenly divided and that national elections for the foreseeable future will be just as competitive as the last one.
That said, it's clear that Republicans had a good election night last year. After all, for only the third time since the end of the Civil War, the party holding the White House gained House seats in a midterm election (previous exceptions being 1934 and 1998). This election was also the first since 1934 that the party holding the White House, still in its first term, gained both House and Senate seats in a midterm vote. President Bush and his party have every right to be proud. But the Republican Senate, House, and gubernatorial victories were based on strategic, tactical, mechanical, and financial factors, not a fundamental movement in public attitudes. The election had very few upsets. Instead, very close races disproportionately broke in one direction at the end. But the way it happened in House races differed from that in Senate races. Here are two separate looks at how Democrats lost the Congress:
The House. All the post-election hand-wringing by Democrats about the poor House results ignored earlier signs of trouble for the party. Long before voters went to the polls, and even before many campaign headquarters opened, it was obvious that Democrats had an uphill climb in their quest for control of the House.
Soon after the final congressional district lines were drawn, Democrats boasted that they had held Republicans to a draw, denying them earlier claims of double-digit gains through redistricting. A draw was certainly better than the alternative, but it proved to be a double-edged sword. While redistricting ultimately helped protect some vulnerable Democratic incumbents, it denied Democrats the opportunity to expand the playing field by increasing the number of marginal seats. State legislatures and courtrooms across the country drew new congressional lines that basically solidified the status quo, creating few new competitive districts and leaving only a handful of endangered incumbents. This meant that Democrats were forced to pursue a complex district-by-district strategy for victory with almost no margin for error, instead of a national strategy to marginally improve their odds in a large number of races.
But with no margin for error, Democrats inevitably couldn't get every break. Get the wrong candidate out of a crowded primary (as happened in Arizona's 1st District when party favorite Steve Udall lost), and that seat now gets tossed into the give-away pile. Find out that your candidate has trouble raising enough money (Joe Turnham in Alabama's 3rd District or Stan Matsunaka in Colorado's 4th District) or has ethics troubles (Dario Herrera in Nevada's 3rd District and Champ Walker in Georgia's 12th District), and you lose another precious few opportunities. Then there is just plain luck, as in Colorado's new 7th District seat in suburban Denver, where Republican Bob Beauprez beat Democrat Mike Feeley by just 121 votes.
Beyond the sheer odds, the fund-raising domination of the National Republican Congressional Committee and Republican candidates was another big factor. Republicans were able to crush their competitors in highly competitive seats, and Democrats were prohibited from expanding their reach into prohibitively expensive media markets, such as suburban Philadelphia (Pennsylvania's 6th District) or suburban Detroit (Michigan's 11th District). Most importantly, Democrats were forced to play defense to hold on to their most vulnerable incumbents (such as Jim Matheson in Utah, Baron Hill in Indiana, Dennis Moore in Kansas, and Joe Hoeffel in Pennsylvania), taking precious resources from opportunity seats to fund their survival programs. (With the McCain-Feingold/Shays-Meehan campaign finance law having taken effect on Nov. 6, the Republican financial advantage is likely to become even more important. Democrats have grown far more dependent, on a proportional basis, on so-called "soft money," than Republicans, who have proven to be far more successful in raising "hard" dollars under the constraints of the Federal Election Campaign Act.)
Throughout the cycle, The Cook Political Report showed a very small playing field that never really expanded. Over the summer, we showed 40 seats as competitive; our final October issue showed just 45. A little historical perspective here is instructive. Ten years ago, during the last redistricting period, The Cook Political Report's summer issue showed 136 seats as competitive, while the final issue before the election listed 151. In 2002, with so few seats truly in play, Democrats' only hope to gain control of Congress was to win a very high percentage of the closest races. In the end, it was Republicans who won the lion's share of the close contests, winning 10 of the 15 toss-up races.
The political repercussions of redistricting are likely to be seen over the next few elections. In the absence of any sort of national tide (say an economic or international debacle), we will once again have few seats in play -- perhaps fewer than during the 2002 cycle. In fact, it is interesting to note that there were no real upsets in 2002. Republicans netted six seats, but only because they won 67 percent of the toss-up races. Republicans didn't pick off any seat in the Lean or Likely Democratic column, and only one seat rated as Lean Republican (the 5th District of Louisiana) went to Democrats, in the Dec. 7 runoff. To give you a sense of just how few seats may be in play next year, take a look at the number of candidates who won with 55 percent or less of the vote (the gold standard for vulnerability). Only 51 incumbents (27 Democrats and 24 Republicans), and even more daunting for Democrats, only 25 freshmen (12 Democrats and 13 Republicans) were at that threshold. The Democratic donkey needs to get ready for another tough climb up the Hill. The Senate. Days before Nov. 5, a conventional wisdom developed inside the Washington Beltway that Democrats would hold the Senate and that they might even pick up a seat or two. It's hard to pinpoint where it started, but by the weekend, this thinking hit the pages of The Washington Post and The New York Times, as well as the Sunday morning news shows, with full force. The problem, though, was that there was very little hard evidence to back it up. Perhaps the conventional wisdom was the product of admirably good spin, or just wishful thinking, but it was certainly not based on the available facts.
Going into Election Day, The Cook Political Report had 10 Senate races in our "Toss-Up" column, five Democratic seats and five Republican ones. These were races that were within the margin of error, and with no overarching set of national issues or evidence of an electoral "wave" driving the election, we felt that it was impossible to predict which side would pick up seats. In fact, it marked the first time in The Cook Political Report's 18-year history that we did not make a prediction of net gains or losses in the Senate. It was just as likely that Democrats would hold their majority as it was that Republicans would regain control. The one thing that did seem certain was that these toss-up races would not break evenly between the parties; they never do. In 1998, there were nine toss-up seats, and Democrats picked up six of them. In 2000, Democrats picked up eight of the 10 seats in the Toss-Up column. In 2002, as it turned out, the races broke in Republicans' favor; they won seven of the 10 closest contests.
There is plenty of bewilderment and finger-pointing on the Democratic side of the aisle about what went wrong. And as is often the case, there is no shortage of misinterpretation. The first is the claim that there was a big Republican "wave." If that were the case, then Democrats would have lost a seat or two that was not considered especially vulnerable. The second claim is that Republicans ran better candidates. In fact, three of the five Democratic challengers in the five Republican-held toss-up seats had run statewide before, and the other two (Erskine Bowles in North Carolina and Ron Kirk in Texas) were nothing short of first-tier. There was no shortage of talent on the Democratic side. A third claim is that Democrats didn't raise enough money to get the job done. While some Democratic candidates, notably Bill Bradbury in Oregon, Chellie Pingree in Maine and Bob Clement in Tennessee, can point to a lack of meaningful financial assistance from the party, the fact is that Democrats had the resources they needed in all the races that were close enough to matter.
Democrats did appear to take some things for granted -- most importantly, the accuracy of their polling in a truly tough year for pollsters. As usual, there were plenty of questionable polls out there from "independent" academic and media sources. But there were also many races where Republican and Democratic polls differed persistently and substantially. This seems to have raised red flags for Republicans, who spent a lot of time analyzing and reanalyzing their data, but less for Democrats, who took their numbers at face value.
Democrats also appeared to doubt Republicans' ability to motivate their base and get out their vote. Republicans did a masterful job of motivating their base without alienating swing voters. In some races, they ran ads on carefully selected niche issues, such as the "morning-after" abortion pill and taxpayer funded needle-exchange programs, which pushed traditional conservative hot buttons while polling well enough among other voters.
Republicans had not been very successful at getting their voters to the polls in recent elections and were well aware that it cost them dearly in 1998 and 2000. The GOP put enormous resources into get-out-the-vote (GOTV) efforts this year, and it paid off. Many Democrats seemed to feel that their own GOTV programs could withstand the challenge and missed the success Republicans were having in many states with early voting and absentee ballot programs.
Finally, President Bush deserves his share of credit. He was willing to raise money early for incumbents and challengers alike and expend as much of his political capital as necessary. But it would be a mistake to give more credit to Bush than to the message he was able to deliver. Unlike Ronald Reagan, who in 1986 campaigned as much as Bush did, only to lose control of the Senate that year, Bush had a message that broke through the clutter to engage an electorate that was only giving this election half its attention.
In the end, Democrats lost control of the Senate by a mere 35,353 votes nationally. Even though this knowledge probably only adds to the sting of defeat, it shows how close Democrats were to laughter rather than tears.
Jennifer E. Duffy is Senate editor and Amy Walter is House editor of The Cook Political Report
WASHINGTON ñ The Supreme Court on Friday accepted a politically charged redistricting case from Georgia that could help determine the future of districts with overwhelming black majorities that have helped Republicans and hurt Democrats across the South and elsewhere.
The "supermajority" black districts were created, both in Congress and state legislatures, as part of a national Republican strategy during the 1980s and '90s, one that many black politicians supported at the time. It resulted in some safe Democratic districts with big black majorities along with a sharply increased number of Republicans elected from suburban districts that had become increasingly white.
Now white and black Democrats are trying to reverse that trend in Georgia and elsewhere by redistributing some of the black voters and reintegrating suburban districts to gain a better chance of electing Democrats. But that effort has run up against a provision of the Voting Rights Act that the justices on Friday agreed to examine.
The question in the case is whether the Voting Rights Act effectively freezes in place these districts, insulating them from any change that results in their becoming more integrated.
Section 5 of the Voting Rights Act, which covers states in the South as well as portions of some other states, bars any electoral change without the approval of the attorney general or a federal court. In order to receive pre-clearance, as the approval process is known, the jurisdiction must show that the change will not result in a "retrogression" in the position of racial minorities.
A special three-judge U.S. District Court in Washington ruled last April in a 2-1 decision that three Georgia state Senate districts, drawn by the Democratic-controlled Legislature, failed the retrogression test by shrinking large black majorities to just under 50 percent. Even if the new plan preserved a reasonable chance for black candidates to be elected, the panel's majority said, it amounted to retrogression if it converted safe districts into merely competitive ones.
Georgia's attorney general, Thurbert E. Baker, a Democrat, appealed the district court's ruling to the Supreme Court. In his appeal, he argued that because "Section 5 represents a serious invasion of the most fundamental prerogatives of the states," the court should interpret the section narrowly. "Section 5 cannot constitutionally require the drawing of supermajority minority legislative districts in order to create safe seats, rather than seats that afford minorities equal opportunities to win," he said.
The Justice Department opposed the state appeal and asked the justices to affirm the lower court's decision. Its brief said the district court's ruling had been faithful to Supreme Court precedents that regarded Section 5 of the Voting Rights Act as imposing a straightforward retrogression test.
The issue is a complicated and evolving one, said Professor Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles. He said that while it was widely accepted in the past that black candidates could usually win only from heavily black districts, that is no longer the case.
"Racially polarized voting is going down," Hasen said. "If it used to take a 60 percent black district to elect a black candidate, and now it takes only 50 percent, is it retrogression to go from 60 percent to 50 percent?" The answer is unclear under the Supreme Court's precedents, he said.
The justices' announcement Friday that they would hear the case followed a long internal struggle. The appeal was considered at their closed-door conference five times since November, a fact that suggests a possible failed effort to craft an opinion that might have decided the case summarily, without argument. The meaning and application of various provisions of the Voting Rights Act have long been subjects of contention among the justices.
Iowa has five representatives in the House and three competitive races, more than any other state. California has 53 seats and only one remotely competitive race, the contest to replace Gary A. Condit.
In California, the legislature went out of its way to protect incumbents of both parties when it drew new district maps after the 2000 census. That was the pattern in many states, though in places like Georgia, Maryland, Michigan and Pennsylvania, parties in complete control of the remapping process tried to draw districts that helped them gain advantage. Every state used computers to anticipate party voting.
Under Iowa law, a nonpartisan arm of the legislature draws the maps, using computer programs to create compact and contiguous districts that disregard partisanship and incumbency. The Republican-controlled legislature still had to approve it, but it was a straight vote, up or down, and amendments were not permitted. And Republicans cared most about the partisan advantage they thought the redistricting gave them in the state legislature (even though they placed 25 of the state's 50 senators in the same districts) and approved the package.
The result was that three Republican incumbents, Representatives Jim Leach, Tom Latham and Jim Nussle, all face serious challenges, Mr. Leach most of all. So, at first, did the state's lone Democratic Congressman, Leonard L. Boswell, though he seems safe now.
The new lines had put Mr. Leach and Mr. Nussle in the same conservative district. So Mr. Leach, one of the most liberal Republicans in the House, moved. Mr. Boswell also moved; he was stuck in the overwhelmingly Republican Western district, vacated by Rep. Greg Ganske, who is running against Senator Tom Harkin.
Iowa instituted this system in 1981, after getting fed up with lawsuits that led the state Supreme Court to draw the maps. The system is widely praised by good government advocates in Iowa and elsewhere. "An exciting part of redistricting is that it throws some incumbents together and creates open seats that are great opportunities for people to get involved," Chet Culver, the Democratic Secretary of State, said last year. Even Mr. Leach, ever the good sport, commented, "Good nonpartisan redistricting is good for the public."
The system fits the state's squeaky clean, super student council image, first claimed when Iowa's presidential caucuses were introduced to the nation in the 70's as living-room deliberations over the merits of candidates, not the vote-first, talk-later made-for-television events that they have become.
One advantage to politicians is that the system settles the maps early. By July 2001, parties could start recruiting candidates. Incumbents could find new houses or plan their retirements.
But the process also has disadvantages. A small state like Iowa builds up clout in Congress only through seniority, not numbers. In 1994, Iowa's redistricting process played a part in the defeat of the second-ranking member of the Appropriations Committee, Neil Smith, a 36-year veteran Democrat. If in 2002, it costs the seat of Mr. Leach, a 26-year, second-ranking Republican on the Banking Committee, some pragmatists may begin to question its value.
Because of population growth, Texas has two new Congressional seats in this year's election, and California has one. In both states, the population increases that led to the additional representation was largely Latino--60 percent of the growth in Texas and 80 percent of the growth in California.
But the new district lines in the states do not reflect the greater Latino population, and that infuriates some Hispanic leaders.
"What they have done is split the Latino community to protect incumbents, and we think there are serious problems with that," said Thomas A. Saenz, vice president for litigation of the Mexican American Legal Defense and Education Fund in Los Angeles.
In Texas, where a federal court drew the redistricting map, both districts are white, suburban and solidly Republican. One-third of the Texas population is Latino, but just six Latinos are highly likely to fill the state's 32 seats in the new Congress.
In California, the new seat is heavily Democratic and Latino and will almost certainly be won by Linda Sanchez, a union official. She will probably be the seventh Hispanic member in the 53-member California delegation. The state's population is also one-third Hispanic.
In the 1990's, Latinos became the majority in two other districts now represented by Anglo Democrats, Bob Filner of San Diego and Howard L. Berman of the San Fernando Valley. Gov. Gray Davis and the Democratic Legislature, who controlled redistricting, redrew the lines of those districts to include fewer Latinos and, thus, protect Mr. Filner and Mr. Berman from the threat of a Latino primary challenge.
Although Hispanic voters are not receiving the representation in Congress that they may think they deserve, their votes are aggressively solicited. A researcher at the Johns Hopkins University, Adam Segal, found that a record sum was being spent on Spanish-language political commercials this year. The advertisements, Mr. Segal said, are running not just on Spanish-language stations but also in some instances on channels in English.
Hold onto your hats.
Republicans hold a slim six-seat majority in the U.S. House of Representatives. And with congressional districts being redrawn for this election, you can bet this year's congressional elections are going to be awfully exciting -- not!
Huh? Redistricting is the process of drawing congressional districts according to the latest census numbers. "Gerrymandering," on the other hand, is the process of drawing new districts that will reelect the same old incumbents term after term after term after ever-lovin' term.
Wall Street Journal reporter John Harwood writes, "There isn't single toss-up race in such major states as Ohio, Illinois, Michigan, Texas, New Jersey, or New York. Not even Florida -- symbol of the nation's 50/50 political split."
Political analyst Charlie Cook rates only 11 congressional races, out of 435, as toss-ups. Less than three percent. Ten years ago, Cook saw four times as many toss-up races.
Harwood says part of the problem is that house members want long term careers and have developed lots of skills to get those long term careers. Both major parties use computer programs that slice and dice voting patterns to draw districts that will reelect incumbents.
Incumbents run our government for their benefit, write campaign rules in their favor, and even pick their voters.
A serious situation with a simple solution: Take the politics out of redistricting. Just don't count on the career politicians for any help.
This is Common Sense. I'm Paul Jacob.
On Tuesday, Rep. John Dingell, one of the most powerful and longest-serving Democrats in the House, defeated his colleague and nominal ally, Rep. Lynn Rivers, in a congressional primary in Michigan. Reporters had flocked from Washington, D.C., to cover the race. Headlines around the country trumpet the results today, followed by analyses of the implications for guns, abortion, the environment, and other issues that separated the candidates. But the real story of this election isn't Dingell's victory, Rivers' defeat, or the role of this or that issue. The real story is how two Democratic members of Congress ended up running against each other.
When you read about an election such as the Dingell-Rivers race, you expect to find out what's going on between the candidates. You figure some things will change. Maybe he's up one week, maybe she's up the next. What you don't expect is a critical look at how we ended up with those two candidates. In the conventional math of political reporting, the candidates aren't variables. They're givens.
This tendency to focus on what's happening within the election's parameters, rather than on how and by whom the parameters were decided, is natural. But sometimes, it obscures a more interesting story. The most important political victories aren't waged and won while the contest’Äîan election, a congressional debate, or a Supreme Court oral argument’Äîis formally underway. They're won in the unofficial contest to set the terms on which the official contest will be fought. In many respects, the battle is over before it begins.
That's what happened to Dingell and Rivers. Every 10 years, state legislatures draw new districts for local, state, and national elections. Because its share of the U.S. population declined, Michigan had to give up one of its 16 seats in the U.S. House. Democrats had nine of those seats; Republicans had seven. But Republicans controlled the Michigan state House and Senate as well as the governorship. So they rammed through the legislature a redistricting plan that forced Dingell and Rivers together in a single district. The GOP didn't have to beat either of these incumbents in an election. All it had to do was set up the election so that one of the two was bound to lose.
Third parties, independent voters, and dissident movements often complain that the two-party system prevents alternative candidates from being seriously considered in elections. But in those situations, the terms of the election are stable, and the limiting of choices is obvious. You may have wanted Ralph Nader to be given a better chance in the 2000 presidential election, for example, but at least the electorate in that race was clearly defined, and Nader was clearly excluded from the debates. In races defined by redistricting, you don't get even that courtesy. The electorate for each congressional seat is changed by legislators in back rooms as they move district lines. And rather than being deprived of the ability to vote for your favorite candidate, you can be forced, as thousands of Michigan Democrats were on Tuesday, to vote one of your favorite incumbents out of office.
Many articles on the Dingell-Rivers race mention that redistricting threw them together. But the political background of redistricting isn't explained, and it's important. Two years ago, Michigan held elections for the 110 seats in its House of Representatives. The parties split 104 of those seats, 52-52. Two of the remaining races (Districts 37 and 99) were won by fewer than 1,000 votes; two others (Districts 56 and 81) were won by no more than 1,500 votes. If Democrats had won those seats, they would have controlled the House and blocked the GOP's redistricting plan. If they had won three of them, they would have held a tie. But they won none of them. By a grand total of 5,000 votes, the GOP won all four seats, controlled the House, and wrote the redistricting plan that forced the bewildered constituents of Dingell and Rivers to choose between them.
If you want to know why Lynn Rivers will be out of Congress come January, don't look at the election she just lost. Look at those neck-and-neck races for the Michigan House two years ago, look at the paltry voter turnout in local elections generally, and ask yourself why nobody pays attention until the script is written and the curtain goes up.
The battle for control of Congress isn't coming to California this year. Or to many other states.
To understand why, take a spin along Huntington Drive outside Los Angeles, to where the black and Latino shopping district of solidly Democratic South Pasadena gives way to businesses such as Polo Tours and Tweed Financial Services. This is the San Marino area, home to people who vote Republican about as predictably as sunrise. It's also part of the congressional district that elected Democratic Rep. Adam Schiff.
So when California state legislators undertook the post-census ritual of remapping districts, Mr. Schiff's political allies did him a favor. They sliced San Marino out of his district and gave it to Republican Rep. David Dreier. The simple stroke made Mr. Schiff's district more safely Democratic and Mr. Dreier's more safely Republican. Both incumbents are expected to win handily in November, as is every other incumbent still seeking re-election in California; Rep. Gary Condit lost a primary earlier this year.
The upshot: In a year when the country seems almost evenly divided between Democrats and Republicans, most members of Congress aren't preparing for a tough fight in the midterm election. There's little doubt about the outcome of any of the 53 House races in the nation's largest and most populous state. And the same is true "all over the country," says Rep. Tom Davis of Virginia, leader of the House GOP's effort to retain its majority in November.
Thanks to the play-it-safe strategies of Republicans and Democrats alike, and to the sophisticated technology now used in redistricting, competition is being squeezed out of the House -- with huge consequences.
Democrats will have difficulty picking up the additional six seats they need to regain a House majority. Republicans probably won't significantly expand their majority. That practically ensures that the chamber will remain riven by partisan division for the last two years of Mr. Bush's term, making compromise more elusive on tough issues. The process also lines up the parties with their ideological extremes, leaving underrepresented the roughly 50% of the electorate that stands nearer the political center.
In the past, the decennial process of redistricting that follows the census fostered challenges to the status quo. This time it is leaving the status quo more deeply entrenched. Out of 435 House districts, political handicapper Charlie Cook rates only 11 as "toss-up" contests that either side could just as easily win. At this time 10 years ago, he rated four times as many that way.
There isn't a single toss-up race in such major states as Ohio, Illinois, Michigan, Texas, New Jersey or New York. Not even Florida -- symbol of the nation's 50-50 political split since the 2000 campaign -- has a race where the Republican and Democratic candidates are given equal chances of winning.
One consequence of the small number of competitive races is that political parties and allied interest groups flood those races with money. In the process, notes congressional scholar Thomas Mann of the Brookings Institution, parties neglect cultivating challengers to a broader range of House incumbents.
Competition in Congressional politics has been declining for years. Long gone are the big partisan lurches that marked late-19th-century and early-20th-century House elections, such as the 120-seat Republican gain of 1894. After 40 consecutive years of Democratic control, Republicans exploited economic anxieties, the missteps of the Clinton White House and the political realignment of white Southerners to gain power by picking up 52 seats in the House in 1994.
But that spurt of volatility faded, and incumbents have continued to win more than 90% of their attempts at re-election. In the first 14 House elections after World War II, one party or another gained an average of 27 seats. In the past 14 elections, the average switch was 16 seats.
Part of the explanation lies in House members' growing desire to make long-term careers in politics, and their increasing skill in using the tools of office to do so. But part of it also stems from the ability of Republican and Democratic tacticians to turn technology to their advantage.
Beginning 10 years ago, sophisticated computer-software packages have allowed partisan map-makers to match new census data with their own files on neighborhoods' voting histories -- down to the level of individual blocks. That lets them design districts with predictable partisan preferences. Though redistricting plans can be challenged on constitutional grounds, courts have recognized that the processes that produce them are inherently political.
This time around, faster and cheaper computers have allowed more people with an interest in the outcome -- such as House incumbents -- to use that software for their own benefit.
"There's a technology in the redistricting process that didn't exist 40 or 50 years ago," says Marc Racicot, the former Montana governor who now serves as the GOP's national chairman.
Overall, the near-even split in the House -- currently composed of 222 Republicans, 211 Democrats and two independents -- mirrors the nation's divided electorate. But the two main parties' House caucuses aren't so representative. Each caucus is full of reliable partisans elected from districts tilted toward one party or the other. The roughly 50% of the electorate who consider themselves aligned with either party are well-represented in the conservative-dominated Republican caucus and the liberal-dominated Democratic caucus. But the 50% of Americans who occupy the political middle ground have fewer voices on Capitol Hill.
Moreover, staunch GOP partisans feel little political pressure to compromise with their equally staunch Democratic counterparts. That sort of polarization contributes to legislative stalemate on issues such as legal reform, energy policy and extending insurance coverage on prescription drugs through the private market or Medicare. Polarization also blunts many lawmakers' interest in reaching out to the sort of swing voters who loom large in presidential contests, and whose backing could help forge majority governing coalitions.
For instance, Hispanic voters represent a key target for President Bush for his 2004 re-election hopes. But when Republican House candidates scored poorly in a recent national poll of Hispanics, one top GOP strategist shrugged off the result as inconsequential. The reason: The way district lines are drawn, there are very few districts where Republican House candidates must attract Hispanic votes to win.
"The best representation," concludes Rep. Schiff of California, "comes out of the most marginal districts," where lawmakers must appeal to voters from both parties, rather than just to Democrats or Republicans.
Even some partisans deeply involved in the 2002 campaign feel uneasy over the stasis the process has produced. In his role as National Republican Congressional Committee chairman, Mr. Davis likes the way redistricting worked out because it "limits the opportunities" of Democrats. But as a moderate Republican, he worries that it prevents the emergence of like-minded centrists within his party. One example: More staunchly Republican districts tend to elevate opponents of abortion, who in turn sometimes help position the party at odds with moderate voters nationally.
The designs of political map-makers can ultimately be overwhelmed by demographic shifts. Republican Rep. Robert Dornan of California was re-elected five times in the traditional GOP bastion of Orange County, Calif. -- until a sustained influx of Hispanic immigrants led to his surprise defeat by Democrat Loretta Sanchez in 1996.
Yet for now, the well-fortified trenches that both parties have dug in House elections seem likely to hold. Some Republicans briefly entertained dreams that President Bush's post-Sept. 11 popularity could help them make a decisive breakthrough. But polls suggest that normal partisan patterns are returning, and there is little that could break up such alignments.
"A depression would do it," notes Gary Jacobson, a scholar of Congressional politics at the University of California at San Diego. Meanwhile, he frets that the situation makes it difficult for lawmakers in Washington to govern and for voters at home to assign responsibility, since the House and Senate are controlled by different parties.
Incumbents argue that the system works fine. Mr. Dreier, the Republican lawmaker who spearheaded GOP redistricting efforts in California, says the specter of ideological warfare on the House floor is often exaggerated. And he joins his Democratic counterpart, Rep. Howard Berman, in citing an underappreciated benefit of the safety most incumbents enjoy: less need for fund-raising and political maneuvering.
"If every incumbent is spending every waking moment thinking about how to survive a tough re-election campaign, the process of democracy will be hurt," explains Mr. Berman, who is now serving his 10th House term. "You'd have politicians consumed with raising money all the time, passing up the chance to think about issues."
There's little doubt that he can stay there a good while longer. In the California legislature's new redistricting plan, Rep. Berman will represent an electorate that cast some 70% of its votes in 2000 for Mr. Gore.
In a series of other nips and tucks, California's top partisan tacticians firmed up several other members' districts with the political equivalent of plastic surgery. Rancho Palos Verdes, an affluent coastal community in Los Angeles County that made Democratic Rep. Jane Harman's vote totals sag, was sliced from her district and packed into the adjacent district of Republican incumbent Dana Rohrabacher. Republican Rep. Elton Gallegly handed over Democratic neighborhoods of Oxnard and Ventura that strengthened his Democratic neighbor Lois Capps, while Rep. Capps surrendered Republican parts of Santa Barbara to Mr. Gallegly.
"There was a certain amount of creativity involved," chuckles Thomas Hofeller, chief of redistricting at the Republican National Committee in Washington. In his dimly lit office, Mr. Hofeller clicks through detailed, color-coded maps displayed on his computer screen. Comparing the old district lines to the new ones, he dubs the result "a sweetheart gerrymander."
Some partisans on both sides grumble that it's a little too sweet. If Republicans had fought harder in the California Legislature, gripes former GOP Gov. Pete Wilson, they might have carved out the chance to win more than the 20 House seats they're projected to win under this plan.
Nonsense, replies Mr. Dreier. Considering that Democrats control both the legislature and the California governorship, he argues that preserving all 20 Republicans seats was a triumph. "I'm not only not embarrassed about it, I'm extremely proud," he says.
Mr. Berman makes precisely the opposite argument in rejecting complaints from Democrats outside California that the state's congressional redistricting doesn't capitalize on the party's ascendancy in the state. The projected 33-20 Democratic edge, he says, is even more lopsidedly Democratic than the work of art the party produced to carve up Republicans following the 1980 Census.
"Without this plan, it would have been much more difficult for Democrats to win back the House," Mr. Berman says. Complaints that Democrats could have created three more winnable seats, he says, come largely from political consultants bemoaning the lack of House campaign business in the state.
Mr. Schiff certainly is breathing a sigh of relief. He raised and spent about $4 million to win his hard-fought 2000 challenge to incumbent Rep. James Rogan, who had become a folk hero to Republicans after serving as one of the managers of President Clinton's impeachment in 1998. The new district in which Mr. Schiff will seek a second term is significantly more Democratic than his old one, which means he won't have to fight nearly so hard this time.
"California could have been more aggressive," acknowledges Mr. Schiff. But "overall, the judgment was made that it was more productive for Democrats to strengthen marginal Democrats than to create new Democrats." That's why Mr. Schiff soon will be representing the residents of Temple City, who backed Mr. Gore in 2000, but won't be representing the upscale denizens of San Marino. Mr. Schiff insists he'd have been content to leave his old district lines alone, but his dismal 31% showing against Mr. Rogan in that community in 2000 made the change an easy call for Democratic strategists.
Mr. Dreier, who has exchanged in the reapportionment process a district Gore carried for one Bush carried, makes no bones about welcoming his new electoral cushion. "I'm happy to have San Marino," he says.
As the only Republican member of Congress from her Democratic state, Rep. Shelley Moore Capito ( news, bio, voting record) had every reason to expect the worst when the West Virginia Legislature sat down to redraw House district boundaries.
Improbably, though, her seat became slightly more Republican, not less so, after the state's two veteran Democrats declined to remake their own districts substantially in hopes of defeating her. "I served four years in the Legislature," says Capito. "Maybe that helped."
Or perhaps not. Whatever the reason, the events in West Virginia are an example of the frustration that both parties occasionally suffered in the nationwide redistricting struggle now nearing its completion.
"Members (of Congress) are all concerned about making their districts better, even if they have good districts," said Rep. Sherrod Brown ( news, bio, voting record), D-Ohio, an assessment echoed by lawmakers in both parties.
"It used to be the voters chose the politicians," said Rep. Tom Davis, the Virginian who heads the GOP campaign committee. "Now the politicians choose the voters."
On a national level, Republicans and Democrats battled across dozens of states, wielding raw power where possible and going to court where it wasn't, all in the service of maximizing their election chances. At times each side stumbled over objections from within, personal ambitions, local political concerns and more.
And while the total number of seats involved is relatively small, the narrow partisan divide in the House magnifies any missed opportunity.
_ In Ohio, Republican hopes for stronger gains were frustrated when GOP Gov. Robert Taft made it clear he wanted Brown's seat kept safe. Brown had signaled an interest in running for governor - a bluff, he said in an interview, to get Taft's attention.
_ In California, Republicans chartered a jet to fly the state's chief Democratic redistricting adviser to Washington and a White House meeting with presidential aide Karl Rove. Together, Rove and Michael Berman blessed a deal making 52 of the state's 53 seats uncompetitive.
Some Democratic strategists had hoped for a different plan, putting two or three GOP lawmakers into competitive races, although that could have put some Democrats in political harm's way. In internal discussions, Democratic lawmakers led by Rep. Howard Berman ( news, bio, voting record) countered that the party had picked up four seats in the state in 2000. By locking up those gains, Democrats would be able to export potentially millions in campaign donations to races in other less expensive states, they argued.
"What we've done is to lock in ourselves at our high point," said the congressman, whose brother was the Democratic adviser who met with Rove.
_ In New York, several Democratic members of Congress hired lobbyists to influence the Legislature to protect their districts. Two lawmakers, GOP Rep. Ben Gilman and Democratic Rep. Louise Slaughter, have said they may file a lawsuit challenging the Legislature's plan, but they'll have to do so without support from either party.
_ Republicans in Washington produced a plan to make Kansas Democratic Rep. Dennis Moore ( news, bio, voting record)'s district marginally less hospitable. Several party officials, speaking on condition of anonymity, said that plan was blocked in the GOP-controlled Legislature when Republican Rep. Jerry Moran ( news, bio, voting record) refused to support it. In an interview, Moran said his only request to state lawmakers was "not to significantly change the counties that are currently in my district and put them someplace else."
_ Republicans controlled the redistricting process in Pennsylvania, but needed Democratic votes to prevail in the Legislature. That gave the national Democrats leverage - or so they thought. But Democratic members of the Legislature liked what the GOP plan did to their own districts. The result was leverage lost, and a plan that could conceivably cost the Democrats four or five House seats.
West Virginia, with a Democratic governor and Legislature, seemed tailor-made for the party to carve up a seat in GOP hands.
Capito, the first Republican to represent her state in Congress in two decades, won narrowly in 2000 after former Rep. Bob Wise ran for governor. The state's two Democratic lawmakers, Reps. Alan Mollohan and Nick Rahall, have held their seats two decades and drew no GOP opponents in 2000.
Yet when it came time to adjust the districts for population, there was relatively little change. Capito emerged with a seat that is marginally more Republican than before.
"That was the obvious solution," Mollohan said, "If you did anything else, you would have had to have an ulterior motive."
Several Democratic sources, speaking on condition of anonymity, said some strategists had hoped for an alternative that would have dimmed Capito's re-election prospects. At one point, these officials added, House Democratic leader Dick Gephardt raised the issue with Mollohan and Rahall.
"To ask me to give up the counties where I'd worked so hard for many years was like asking me to give up one of my children," said Rahall.
Said Mollohan: "It's not like you're fashioning a
Republican district," for Capito. "You're not."