Reform DeLayed

Published June 28th 2006 in The Nation
O.K., so can we just admit that when it comes to redistricting – the process by which politicians define the legislative branch of the federal government – there are few if any limits on partisan power grabs?

That certainly seems to be the signal from the U.S. Supreme Court, which has ruled that disgraced former House Majority Leader Tom DeLay and his henchmen in the Texas legislature were fully within their rights to radically alter the maps of the state's U.S. House districts in order to solidify Republican control of the U.S. House of Representatives.

The redistricting of congressional districts – a process traditionally carried out once every ten years by state legislators, who are supposed to use fresh Census data to assure that all of state's districts have similar populations – is the single most powerful tool by which the make up of the U.S. House of Representatives is determined. By gerrymandering districts to give advantages to incumbents from one party or another, legislators have over the years made most House elections irrelevant. Even a well-funded challenger with the issues on his or her side cannot upset an incumbent who has been given a district with favorable lines. As a result, in any given election year, only a few dozen of the nation's 435 House districts see competitive contests.

As bad as the circumstance was, in 2003, DeLay made things dramatically worse. After using his national contacts to raise the money to put Republicans in charge of the state legislature in 2002, he had his allies in Austin radically redraw the state's congressional map with the express purpose of defeating Democratic incumbents and electing more Republicans.

It worked. Republicans picked up six Texas congressional seats in 2004.

Democrats challenged the redistricting, but the court's ruling has placed a stamp of approval on DeLay's map – with one minor objection – and assured that the gains Republican gains engineered by DeLay will be retained.

But the importance of the 7-2 Supreme Court decision issued Wednesday goes far beyond Texas.

Three dangerous precedents have been set:

• The court has stated that the map DeLay's produced did not represent an "unconstitutional political gerrymander" of the state's district lines. Since it would be difficult to imagine a more politically-motivated map, the court has effectively said that partisans can draw maps that suit their political purposes without fear of intervention or objection by the courts. While some analysts interpret a line from a previous court ruling as suggesting that critics of a redistricting map could come up with a "reliable standard" for challenging a map, if such a standard could not be applied to the DeLay map it is hard to say where it would ever be viable.

• The court has upheld the right of states to change their congressional district boundaries more frequently than once every ten years -- following the completion of a U.S. Census. – which is the traditional standard. What this means is that, when control of a state legislature shifts, so too could the state's congressional district lines.

• The court has held that there is "nothing inherently suspect about a legislature's decision to replace mid-decade a court-ordered plan with one of its own." Thus, court-ordered plans – which are usually the fairest to voters, in that they tend to set up more competitive districts – can be replaced by legislators who don't like them. This is a hugely significant development, in that it effectively removes the fall-back position that good government groups have used when challenging legislative gerrymandering. Foes of a particular map might get it thrown out by the courts, and they might even get a panel of judges to draw a new map, but there is no longer any certainty that the new map will stand.

The court did rule that the lines of one Texas district will need to be redrawn because DeLay and his minions moved 100,000 Hispanic voters out of the southwest Texas 23rd District in order to protect a Republican incumbent, Henry Bonilla, politically. The court determined that move to undercut the influence of Hispanic voters was a violation of the Voting Rights Act. But, notably, the four most conservative justices on the court opposed even that determination.

Anyone who was looking to the Supreme Court to clean up the redistricting process and to provide for competitive elections is making a mistake. As Rob Richie, executive director of the Center for Voting and Democracy says, "If we're really concerned about fair elections, we have stop counting on the courts and start looking for political solutions."

In the short-term, Richie says, Congress should set national standards for redistricting. "Congress could establish standards for transparency -- sunshine-on-the-process standards that could be defined so that redistricting can't be done behind closed doors. A second step could be to set guidelines for when you can and cannot do redistricting. That would address some of the concerns about the court's ruling."

In the long-term, Richie says that reformers should begin pushing from a proportional representation system that might see three members of Congress elected from larger, more competitive districts using an instant-runoff voting model.

"If you are concerned about what the court ruling has done, there are immediate steps that can be taken," says Richie. "But what we need to do is dig in to really reform how elections for Congress are conducted."