National Redistricting News

BusinessWeek: "A Partisan Game of Gotcha!" June14, 2004
San Diego Union-Tribune: "Unrigging elections. Let voters, not politicians, decide who wins." June 1, 2004
San Diego Union-Tribune: "Rigging elections. The hidden scandal of redistricting." May 23, 2004
Find Law's Writ: "The Supreme Court Gives Partisan Gerrymandering the Green Light--or at Least a Yellow Light." May 12, 2004
Chicago Tribune: "If democracy is to be worthy the name, curb gerrymandering." May 8, 2004 
Philadelphia Inquirer: "The gerrymander lives. High court fails voters." May 8, 2004.
National Review: "The erosion of democracy. How about a little congressional competition again? May 4, 2004
Desert Morning News: "The art of gerrymandering." May 3, 2004.
Washington Post: "Time to Draw the Line." May 3, 2004
Washington Post: "The Court Punts." May 1, 2004
Newsday.com: "Try, try again on redistricting. Supreme Court mustn't give up effort to set standards for political gerrymandering." May 1, 2004
The Macon Telegraph (GA): "Court unveils voting maps." March 17, 2004.
FindLaw.com: "Should Single-Member Districting Be Held Unconstitutional? If So, That Ruling Would Help Solve The Problem of Political Gerrymandering." February 5, 2004.
 Journal Times Online: "Debatable: Is redistricting a power shift or a power grab? January 18, 2004.
 Christian Science Monitor: "Gerrymuddling in Texas." January 9, 2004.
 NewsHour with Jim Lehrer: "The political battle in states over redrawing congressional districts has reached the courts." December 25, 2003.
 Find Law's Writ: "The Supreme Court Considers Sophisticated Political Gerrymandering. Are Voting Rights Preserved If Boundaries are Drawn to Ensure Particular Election Outcomes?" December 25, 2003.
 Wall Street Journal: "Safe House, Unsafe Principles. Will conservatives benefit from safe Republican control?" December 22, 2003.
 Washington Post: "Redistricting will eclipse campaign finance dust-up." December 15, 2003.
 Washington Post: "Rescuing U.S. Democracy." December 15, 2003.
 Associated Press: "Minority Parties Pushing Independent Redistricting." December 11, 2003.
 Independent UK: "The Court Case that Could Reshape U.S. Democracy." December 11, 2003.
 The Nation: "The Redistricting Wars." December 11, 2003.
 Christian Science Monitor: "Rigging election boundaries: When does it go too far?" December 10, 2003.
Philadelphia Inquirer: "Pa. redistricting case may set path for U.S. on role of politics." December 10, 2003.
 Associated Press: "Justices to Hear Pennsylvania Redistricting Case." December 9, 2003.
 Department of Law News Release: "Attorney General Salazar seeks intervention in federal redistricting lawsuit to defend Colorado constitution." December 8, 2003.
 New Yorker: "The Great Election Grab." December 8, 2003.
 Wall Street Journal: "The Gerrymander Moment: Democrats discover this incumbent-protection racket." December 5, 2003.
 Denver Post: "Political lines being drawn in Pa. case." December 3, 2003.
 Washington Post: "Once Is Enough." December 3, 2003.
 Washington Post: "Polarization Myths . . ." December 3, 2003.
 New York Times: "A Ruling for Democratic Principles." December 2, 2003.
Washington Post: " . . . And Manners." December 2, 2003.
 Legal Times: "Drawing Over Democracy." In Vieth v. Jubelirer, the Supreme Court addresses the political gerrymanders that damage democracy. December 1, 2003.
 Washington Post: "To the Polls." November 4, 2003.
 Albuquerque Journal: "Incumbents Choose Their Voters." November 4, 2003.
 New York Times: "Texas Standoff" August 27, 2003
 Wall Street Journal: "Incumbent Protection Racket: The liberal media are shocked, shocked to find gerrymandering going on." August 18, 2003
 American-Statesman: "Another try at redistricting, another trip for Democrats." July 29, 2003
 Wall Street Journal: "House of Unrepresentatives." July 18, 2003
 The Charlotte Observer: "Try nonpartisan redistricting: Creation of safe seats takes decision-making out of voters' hands." July 15, 2003
 Washington Post: "GOP Redistricting: New Boundaries of Politics?" July 2, 2003
 New York Times: "Court to Hear Case on Congressional Redistricting." June 28, 2003
 New Dem Daily: "On-Line Publication of the Democratic Leadership Conference Idea of the Week: Reinventing Redistricting." June 27, 2003
Blueprint Magazine: "The Republicans' Great Gerrymander." June 27, 2003
 Washington Post: "GOP's New Push On Redistricting House Gains Are at Stake in Colo., Tex." May 9, 2003
Blueprint Magazine: "How the Hill Was Lost Two analysts for the Cook Political Report examine the 2002 election and come to a startling conclusion." February 11, 2003
 New York Times: "High court to hear case on racial redistricting: Georgia Democrats want flexibility to alter 'supermajority' black districts." January 18, 2003
 New York Times: "Why Iowa Has So Many Hot Seats." October 27, 2002
 New York Times: "Hispanic Frustration." October 3, 2002
 Common Sense: " Take Out the Politics." October 1, 2002
 Slate Online: "Michigan Mash-Up: Tuesday's congressional election was decided years ago." August 7, 2002
 Wall Street Journal: "Wall Street Journal House Incumbents Tap Census, Software to Get a Lock on Seats." June 19, 2002.
 Associated Press: "Redistricting battles come down to personal issues as well as political." June 18, 2002

• What's New in Redistricting is a summary of nationwide redistricting activity that is updated weekly.
• California Congressional Delegation Proposed Districts Maps now online. August 31, 2001
• Michael McDonald, an assistant professor at the University of Illinois-Springfield has compiled a redistricting scorecard with updated information about the redistricting progress in each state.

BusinessWeek
A Partisan Game of Gotcha!
June 14, 2004

Before Tom Delay got to Congress 19 years ago, he was an exterminator back in Texas. But the Republican Majority Leader's true calling may be as a House painter with only one color on his palette -- red. Last year, DeLay was behind a bold remap of Lone Star congressional districts that is likely to deliver control of the state's House delegation to Republicans.

Seven white Democratic incumbents were reassigned to overwhelmingly GOP districts, while other Democratic districts were packed with minority voters to minimize their influence elsewhere. The liberal oasis of Austin was sliced into three surreal districts that snake from Houston to the Mexican border. Hello, Dal�. Goodbye, Democrats. Because of retirements, one party switch, and the tough slog posed by the redrawn lines, at least seven Democratic seats could wind up in GOP hands.

Gerrymandering, of course, dates to the early days of the Republic -- to 1812, to be exact, and the handiwork of Massachusetts Governor Elbridge Gerry. But the DeLay Shuffle was noteworthy in two regards. The first was the Texas GOP's skill at using computer technology to draw maps that maximize partisan advantage. The second was the fact that district lines had already been redrawn following the 2000 census. So DeLay & Co. ignored the usual custom of fiddling with districts only once after every 10-year head count.

Unrepresentative House
Traditionally more an art than a science, redistricting has been turned into a zap-thy-neighbor video game. Computers permit a partisan artiste to sift through demographic data and voting patterns to plot new lines with uncanny precision -- right down to a targeted apartment complex or trailer park.

Creative? Yes, but also very bad for the body politic. Because of gerrymandering, only 35 of the 435 House districts are remotely in play. Add to that an incumbent's power to raise massive amounts of cash, and you have a system stacked in favor of the status quo: 98.2% of incumbents won reelection in 2002, the first post-census election with newly drawn lines. "Instead of voters choosing their representatives, in over 90% of districts the representatives choose their voters," says American University historian Allan J. Lichtman. "There's very little democracy in the House of Representatives."

That's of small concern to leaders of the two parties, who will be tempted to do a DeLay and commence redistricting the moment a governorship and state legislature change hands. The trouble is, shifts in state legislatures are often transitory, so the specter of continuous redistricting wars looms over an already polarized political landscape.

Redistricting experts say the recent gerrymandering games have contributed to escalating partisanship, a hollowing out of the political center, weakened clout for minorities, diminished voter participation, and even a loss of faith in democracy. "Less competitive elections result in lower turnout and give people the feeling that politics is all locked up," says Harvard political scientist Theda Skocpol. "This gives a party some short-term advantage, but over the long haul it damages the political system -- especially in an era of voter disenchantment."

Pushing the Envelope
Voter cynicism is rising as more Americans realize how little choice they really have for Congress. And not all gerrymandering involves DeLay-like partisan maneuvers. An equally objectionable practice is the joint carve-up, in which incumbents of both parties conspire to protect their seats in perpetuity.

Case in point: California, where Democrats and Republicans agreed on a 2001 redistricting plan that protected all incumbents at the expense of challengers. Aside from snuffing out competition in general, the new lines were a particular affront to the state's fast-growing Mexican-American population because precious few vistas were opened for Latinos. The outcome was predictable. In 2002, only 1 out of 53 congressional races was even close -- an open seat following the Gary Condit scandal. "They essentially did away with [congressional] elections in California," says Steven Hill, an analyst at the Center for Voting & Democracy, an electoral-reform group.

Unfair redistricting doesn't just disenfranchise people unlucky enough to live in the wrong place, however. It also distorts the true partisan balance of some states -- and the nation. In Florida, where Bush won the Presidency by a hanging chad, congressional districts devised by the GOP legislature misrepresent the true strength of the two parties. So while Al Gore got half of the state's popular vote, he was victorious in just 8 of the 25 House districts. Nationally, Republicans handily won the post-2000 redistricting wars, too. The result was a Presidential race in which Gore won 500,000 more popular votes than Bush but carried only about 46% of House districts. Score one for the Red Team.

That doesn't mean that Democrats don't play the same games. Maryland Democrats three years ago removed enough GOP loyalists from the district of Connie Morella, a popular Republican moderate, to engineer her narrow defeat in 2002.

Lately, Republicans have pushed the envelope with a new maneuver called re-redistricting. After a change of power in the state capital, the newly dominant GOP hastily redraws lines previously agreed to by the legislature or the courts. That happened in Colorado when Republicans seized the state Senate in 2002 and tried to transform two competitive districts into party bastions. The move was struck down by Colorado's Supreme Court, which held that the state constitution limited redistricting to once a decade.

No constitutional bar prevented DeLay & Co. from redrawing congressional lines after the GOP gained control of the Texas statehouse in '02. The new map could turn what was a 17-15 Democratic edge into a 22-10 GOP stranglehold if all of targeted incumbents are ousted on Nov. 2. Continuous revisions, says historian Lichtman, "threaten democracy at its core."

Indeed, gerrymandering has become a centrifugal force that sends power to the outer edges of the ideological spectrum. Because the majority of districts are controlled by one party or the other, the eventual winner is really chosen in primaries dominated by Democratic leftists or Republican right-wingers who prefer head banging to compromise.

As a result, moderate Republicans are an endangered species. And a once-vibrant bloc of centrist House Dems has dwindled to two dozen from a peak of about 70 two decades ago. "The biggest scandal in politics is not campaign finance but redistricting," says Al From of the Democratic Leadership Council. "By empowering the extremes, this makes it harder to achieve solutions to big problems, and it makes it impossible to get bipartisan reform."

Republicans dismiss such criticism as the howls of political losers. They say that Dems, masters of gerrymandering for generations, didn't start caterwauling until the demographic tide turned red. Moreover, the courts thus far are taking a hands-off approach. On Apr. 28, the U.S. Supreme Court upheld a Pennsylvania plan designed to oust four Democratic incumbents and create two new GOP seats.

Still, reformers are hoping for a public backlash against unchecked partisanship. That's what happened in 2000, when Arizona adopted a constitutional amendment that shifted primary responsibility for redistricting from legislative insiders to a blue-ribbon commission. Like similar panels in New Jersey and Washington State, the commission drew relatively balanced districts. But it's not a perfect system. Because commissioners can take incumbency into account, they often protect sitting House members even as they create "fair fights" elsewhere.

There is a better way. In Iowa, a nonpartisan panel draws compact districts that give incumbents no special edge. Since 1981, it has created the nation's most competitive House seats.

Congress could further the push for competitive districts by outlawing the most egregious displays of computer line drawing and reining in re-redistricting. That's not likely to happen while DeLay remains House Majority Leader. And even modest reforms will require a wave of public revulsion. As democracy declines in the face of gerrymandering's excesses, the burning question is: Where's the outrage?

Find Law's Writ
The Supreme Court Gives Partisan Gerrymandering the Green Light--or at Least a Yellow Light
By Michael C. Dorf
May 12, 2004

Chicago Tribune
If democracy is to be worthy the name, curb gerrymandering
By Steve Chapman
May 8, 2004

By a 5-4 vote, the justices sent a signal that they are rarely if ever inclined to overrule elected bodies on this subject.

Often it's a good thing for the courts to stay out of political disputes, leaving them to be settled by the people acting through elected institutions. But in this case, the democratic institutions have been drained of their democratic essence. If you don't like that you can't vote your representative out of office, what are you supposed to do about it? Vote your representative out of office?

As if the situation weren't dire enough, some politicians want to redistrict more frequently than once a decade, which has long been the custom, so they can lock in any transient success at the polls. In Texas, the GOP-dominated legislature came up with a new map last year, replacing the one created in 2001. The goal is to let Republicans gain as many as seven additional seats in this year's elections.

How can voters regain the central role they're supposed to have? One option is to divide power at the state level. A Democratic governor can check a Republican legislature, preventing either party from dominating the process. But in that case, elected officials may safeguard the party they cherish most the Incumbent Party.

The best hope lies in more direct methods. Four years ago, Arizona voters approved a ballot initiative taking redistricting away from the legislature and giving it to an appointed commission. A California legislator has proposed a referendum to turn it over to a three- judge panel.

But no state has matched the success of Iowa. There, the task falls on the nonpartisan Legislative Service Bureau, which in drawing up districts is not allowed to factor in voting patterns and other political information. The result is that in 2002, with just five House seats, Iowa had three competitive races.

Today, thanks to gerrymandering, we have government by the consent of governors. If Americans want to live in a democracy worthy of the name, they need to find ways to curb the excesses of partisan redistricting. That, or move to Iowa.

Philadelphia Inquirer
The gerrymander lives
High court failed voters
May 8, 2004

People who dislike Congress' related penchants for permanent incumbency and strident partisanship were disappointed by the U.S. Supreme Court recently.

In a familiar 5-4 split, the high court decided to let stand Pennsylvania's egregiously partisan congressional redistricting map.

Don't give up hope, though.

There's still Texas.

The tortuous lines of the Texas redistricting map are scheduled for court scrutiny in June. Hard as it may be to believe for anyone who has looked at Pennsylvania's goofy map, Texas' situation is even more outrageous.

Given the chance, a state's ruling political party has always exploited to its benefit the once-a-decade chance to redraw congressional districts. It's called gerrymandering, and both sides do it. Rare is the state where district boundaries are based primarily on logical communities of interest, with an eye to maintaining competitive balance. But in the age of the computer, gerrymandering has gained a poisonous precision.

First, incumbents of both parties make deals to form districts that make it impossible for them to lose. Nowadays, no more than three dozen congressional seats are truly at risk in any election. In the rest, the lines ensure the incumbent will win, effectively disenfranchising voters who don't like him or her.

Second, a party can now use technology to draw the lines so carefully that it derives an immense edge in elections even in states with evenly divided party registration.

Pennsylvania Republicans redrew the lines so that an 11-10 GOP advantage in 2000 became a 12-7 split in 2002 (the state lost two seats in reapportionment after the census). This, even though Pennsylvania has more Democrats than Republicans.

On Pennsylvania's map, several of the districts look like monsters from a Maurice Sendak children's book.

The plaintiffs in the Pennsylvania case asked the court to overturn the map based on "discriminatory intent." The majority, led by Justice Antonin Scalia, would have none of it. Scalia wanted to go so far as to overrule a 1986 precedent that suggested a redistricting could be so grossly partisan as to be unconstitutional.

Justice Paul Stevens, who dissented, rightly noted that such a hands-off approach "would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification."

Fortunately, Justice Anthony Kennedy - the swing vote to uphold Pennsylvania's map - would not slam the door on court intervention against a grotesquely partisan map.

Kennedy said, in effect, that if you base a map precisely on citizens' demonstrated voting habits in such a way as to break up their natural community of interests, it might be an unconstitutional violation of their freedom of association.

Odd reasoning. But as the nakedly partisan Texas map (a re-redrawing of lines to give the GOP an expected 22-10 advantage) comes up for review, this theory may be the best hope for voters who'd like to have a real choice at the polls, rather than merely anointing the incumbent every two years.

National Review
The erosion of democracy
How about a little congressional competition again?
By Rich Lowry
May 4, 2004

In the 19th century, the British parliament system had become so rotten that Dunwich, a former seaport town that had literally sunk under the water, was still represented in parliament. The U.S. Congress doesn't have any Dunwiches, but it is being eaten away by its own form of systemic corruption � the drawing of congressional districts to hand them irrevocably to one or another of the political parties.

With the aid of sophisticated computer technology, politicos are able to draw congressional districts so safe that incumbents can hold on to them for a lifetime. In 2002, just four incumbent congressmen who faced non-incumbent challengers lost their reelection bids. Last week the Supreme Court declined to overturn a Pennsylvania congressional redistricting plan in a case highlighting the ongoing scandal of so-called gerrymandering. A hallmark of American democracy, the competitive election, is being wiped out, congressional line by congressional line.

With the help of district lines sometimes so tortured that they look like works of abstract expressionism, incumbents have increased their reelection rate from 92 percent to 98 percent. That is a marginal-seeming but significant change. University of Virginia political scientist Larry Sabato has a feature on his website tracking close congressional races. In 2002, it followed the "Nifty 50," the 50 most competitive races. This year it features the "Dirty 30." "And we had to stretch to get to 30," says Sabato.

Eighty-one incumbents ran unopposed in 2002, according to the Center for Voting and Democracy. In 350 of the 435 congressional races, the winner won by more than 20 percent. The center projects an even less competitive congressional cycle this year. This means representatives increasingly operate without the factor that tends to force them to be representative � the fear of defeat.

On top of the friendly district lines, incumbents have perfected the art of reelection, refining the use of all their natural advantages, from direct mail, to paid staff, to access to the media. More and more, would-be challengers just don't bother. Republican Rep. Phil Gingrey narrowly won a district in Georgia in 2002, but faces no serious challenge this year. Even one-term incumbents in close districts are looking too formidable to challenge.

The liberal press has only now noticed the problem of gerrymandering, its outrage apparently piqued by the fact that Republicans are now in a position to draw district lines. Governors and state legislatures collaborate in the process of redistricting every ten years with the new census. In 1990, their position in the states was so weak that Republicans alone could only draw lines for five congressional districts. In the 1980s districts were so heavily gerrymandered by Democrats that Republicans probably needed to win 60 percent of the total congressional vote to have a shot at a majority.

One of the chief outrages of liberal reformers, Tom DeLay's recent redistricting of Texas, is only an effort to wipe away the effects of such a Democratic gerrymander. The Texas congressional delegation has been marginally Democratic, although the state is as "red" as they come and Republicans hold every statewide elected office. Now the delegation will be more representative.

But reform that gores both Republicans and Democrats is necessary nationwide. The Supreme Court was right to take a pass in the Pennsylvania case. The court, already notorious for Bush v. Gore, shouldn't get any more involved in partisan politics. It is the public that will have to pressure the political system for change.

States should adopt objective criteria for the drawing of districts, including contiguity and compactness that will limit somewhat the ability of the parties to play games. Bipartisan commissions should be given a significant role in drawing district lines. In Washington state, such a commission has created generally competitive districts so even a speaker of the House (Tom Foley) has lost a race there in recent memory.

The goal should be to make it possible for most people to vote in a congressional election that matters. What a concept.

Desert Morning News
The art of gerrymandering
May 3, 2004

Politics is inherently political. That may come as a shock to some folks. Apparently so, considering all the fuss over how political districts were redrawn nationwide after the 2000 Census.

When Democrats controlled Congress and most state legislatures, they tended to redraw districts in such a way as to keep themselves in power. Today, Republicans do the exact same thing. That shouldn't surprise anyone. The same thing happened in 1811, when Massachusetts Gov. Elbridge Gerry drew a political district so oddly that it resembled a salamander. We call such things gerrymanders to this day.
      
But there is a distinction between politics and democracy. One is not always good for the other.
      
The U.S. Supreme Court ruled this week, 5-4, that states have a right to redraw their districts more or less as they please, as long as it is for political reasons. The ruling did leave open the possibility that some state could one day botch things so royally as to force the court to step in, but that doesn't seem likely.
      
And yet, while political redistricting ought to be a state matter, the states themselves have a duty to look out for democracy, as well as for political power.
      
In the computer age, it's possible to draw political districts with extreme precision. Utah Republicans went out of their way after 2000 to draw Democrat Jim Matheson out of his congressional seat. They may yet succeed in that plan. They also guaranteed GOP dominance in the Legislature.
      
But in doing so, they ran the risk of alienating and discouraging potential voters to the point where they no longer see any point to participating in the process. In 2002, 99 percent of congressional incumbents who ran for re-election nationwide won. Most congressional races nationwide are not close. The party in power could run virtually anyone with a pulse and score a victory. How is that good for the republic?
      
Some states have experimented with non-partisan redistricting commissions that decide how to remake boundaries in light of population shifts. Such a system would be useful in Utah, where one-party dominance has led to a lack of meaningful debate and opposition. It wouldn't end Republican dominance, but it might give under-represented constituencies more of a voice.
      
Of course, the politicians would have to decide to set up such a thing. Don't hold your breath.

Washington Post
Time to Draw the Line
By Fred Hiatt
May 3, 2004

In the 2002 congressional elections, four incumbents who faced non-incumbent challengers met defeat.

That was the fewest in American history, according to the Brookings Institution's Thomas E. Mann, but it was four too many as far as America's political leaders are concerned. If the nation's self-interested redistricters -- and, as of last week, its fence-sitting Supreme Court justices -- have their way, the entire Congress soon will be reelected by acclamation.

Now, maybe that's a good thing. Maybe the success of only four challengers means that the other 431 members of Congress are doing a terrific job. Things are going so swimmingly, at home and abroad, that we don't need any new blood in the House of Representatives, nor even serious challengers for members with life tenure.

Many Americans may not agree. But at the moment, most Americans have little control over the redistricting process that deprives them of a meaningful choice at election time, either for Congress or for their state legislators.

The decreasing competitiveness in congressional elections is not much disputed. In the 2002 elections, 356 races were decided in landslides (by margins of more than 20 percent); in only 38 races was the margin 10 percent or less, according to the Center for Voting and Democracy, an advocate of electoral reform. Last year, in Virginia's election for state legislators, nearly two-thirds of all races didn't even field candidates from both major parties.

Redistricting isn't the only reason for this. Republicans are tending to live near Republicans, Democrats near Democrats. "Person by person, family by family, America is engaging in voluntary political segregation," as The Post's David Von Drehle explained in an article on America's Red-Blue divide last Sunday.

But redistricting plays a huge part. Though voting patterns change over time, new technology allows politicians to draw lines with more confidence than ever that they are creating safe Republican or Democratic seats. Sharper partisan divides give them more incentives to do so, and laws in most states offer no obstacles.

It's not strictly accurate that the line-drawing is always intended to protect incumbents. House Majority Leader Tom DeLay instigated a redistricting in Texas, for example, that is meant to dislodge a number of incumbent Democratic members of Congress this fall. But then the seats are intended to remain safely in Republican hands.

And often the two parties conspire to deprive voters of a choice. In Northern Virginia, for example, Rep. Jim Moran has been an embarrassment. But he enjoys a district so Democratic that no serious Republican challenge is likely. Republicans were happy to give him this comfortable home because it meant they could pack Republicans into two comfortable districts for their own Reps. Tom Davis and Frank Wolf.

Good news for the congressmen: The only costs are that voters become irrelevant, voting becomes superfluous and politicians have no incentive to form coalitions or reach out to those in the minority.

Last week, the Supreme Court declined, by a 5 to 4 vote, to invalidate a Pennsylvania political gerrymander. The justices said that because no one had proposed a persuasive standard -- how much gerrymandering is too much? -- they couldn't get involved.

American political scientists tend to snicker if you suggest that maybe any gerrymandering is too much. This is a politician's game, after all; they've been drawing nefarious lines since colonial times; we wouldn't want to oversanitize things.

But why not? At a recent Brookings conference, redistricting expert Lisa Handley said that most Western democracies have no trouble doing the job more fairly than the United States. In the United Kingdom, for example, civil servants redraw lines to reflect population changes, and they do not take into account where incumbents live or which party will benefit. "In most of the rest of the world, redistricting is not nearly as partisan or as contentious as it is here in the United States," she said. "We really are quite different than other Western democracies."

The biggest difference may be that most of us -- more and more of us -- have almost no chance of replacing our representatives at election time, which you'd think would be the defining characteristic of democracy. It doesn't have to be this way, as Handley said. But the courts apparently aren't going to save our system from itself, and the politicians certainly won't voluntarily submit to the indignity of contested elections. Things will change only if people insist on it.

Washington Post
Rescuing U.S. Democracy
December 15, 2003

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.

Associated Press
Minority Parties Pushing Independent Redistricting
By Brendan Farrington
December 11, 2003

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
not motivated by hopes of turning around the Democrats' poor representation in the Legislature. He said it is simply a matter of creating a fair process for mapping legislative and congressional districts.

''I really do believe that representative democracy over the next several
decades would be well served by this good government initiative,'' Ryan said.

Florida Democratic Chairman Scott Maddox, however, also said it is the only way that Democrats can ever win back a significant number of seats in the Legislature.

''The legislative lines are not in any way representative of the general electorate of the state of Florida,'' Maddox said. ''There's no way that there's going to be big gains in the Legislature until you have a fair and equitable process to draw the lines.''

It is a cry that is being raised in many other states.

In heavily Republican Utah, Democrats backed a proposal to create an independent redistricting commission, but the state's Constitutional Revision Commission rejected the idea. In North Carolina, where Republicans complain about the maps Democrats draw, a Democrat and Republican in the Senate have joined to push for a new process. Similar issues have been raised in Virginia, California, Delaware, North Dakota and elsewhere.

Twelve states have some form of independent body that redraws
legislative districts, including Idaho and Arizona, the most recent states to form commissions. Six states use an independent commission to draw
congressional districts. Five states have commissions that finish the process if lawmakers cannot agree by a deadline.

''It's a good idea, absolutely. The attempt is to remove politics as much as possible'' from redistricting, said Michael McDonald, a George Mason University professor who specializes on the subject. ''This is one of the most highly charged political decisions that you can make.''

States redraw district lines every 10 years after the federal census is released. It is often a contentious procedure that leads to fighting and lawsuits. In Texas, Democratic lawmakers twice fled the state to thwart a vote on a GOP redistricting plan; the plan was eventually adopted and is now being challenged in a trial that was set to begin on Thursday.

In Florida, registered Democrats outnumber Republicans by more than
300,000, but Republicans hold a 81-39 majority in the House and a 26-14 advantage in the Senate.

''I can certainly see why the Democrats are doing this,'' Emory University political science professor Merle Black said of the petition drive.

''They don't have a prayer otherwise.''

Democrats say that districts are oddly drawn by Republicans to maintain the majority.

''They're not interested in a fair and equitable redistricting process,'' Maddox said. ''Any rational person that looks at a map of the legislative or congressional districts would say that it was done on politics rather
than prudence.''

It was not long ago Republicans were pushing for a similar commission. Democrats had full control of the Legislature until 1992, when the Senate was evenly divided. Republicans took over the Legislature in 1996.

But when the GOP was in the minority, Republican calls for independent redistricting were ignored by the Democrats.

''I proposed it,'' said Senate President Jim King. ''It's funny how attitudes change depending on the particular plight or position you find yourself in.''

King said that at the time, he argued that an independent commission was the only fair way to draw lines. Now, though, he said politics would still enter the process.

''No matter how you choose an independent commission, you cannot depoliticize something as political as redistricting,'' he said.

Ryan has to gather about 500,000 signatures to get the petition on the ballot for the 2004 election.

Independent UK
The Court Case that Could Reshape U.S. Democracy
By Rupert Cornwell
December 11, 2003

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."

The Nation
The Redistricting Wars
By Sasha Abramsky
December 11, 2003

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.

Christian Science Monitor
Rigging election boundaries: When does it go too far?
By Warren Richey
December 10, 2003

Philadelphia Inquirer
Pa. redistricting case may set path for U.S. on role of politics
By Amy Worden
December 10, 2003

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.

Associated Press
Justices to Hear Pennsylvania Redistricting Case
By Peter Jackson
December 9, 2003

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
News Release
Attorney General Salazar seeks intervention in federal redistricting lawsuit to defend Colorado constitution
December 8, 2003

Attorney General Ken Salazar today filed a motion to intervene in the federal redistricting lawsuit after the defendants filed pleadings seeking to keep the lawsuit alive in order to pursue a federal challenge to the Colorado Supreme Court ruling. Keller, et al., v. Davidson, et al., 03-Z-1482 (CBS), U.S. District Court, Colorado.

"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.

New Yorker
The Great Election Grab
When does gerrymandering become a threat to democracy?
By Jeffrey Toobin
December 8, 2003

With his West Texas twang, loping swagger, and ever-present cowboy boots, Charlie Stenholm doesn�t much look like or sound like anybody�s 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 years�the 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 state�s 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 state�s true political orientation, so he set out to insure that it did.

�This was a fundamental change in the rules of the game,� Heather Gerken, a professor at Harvard Law School, said. �The rules were, Fight it out once a decade but then let it lie for ten years. The norm was very useful, because they couldn�t afford to fight this much about redistricting. Given the opportunity, that is all they will do, because it�s their survival at stake. DeLay�s tactic was so shocking because it got rid of this old, informal agreement.� 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.

�They did everything they could to bust up my political base,� Stenholm told me. �They drew my farm and where I grew up into the Amarillo district, and they drew Abilene, where I live now, into the Lubbock district.� 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 state�s delegation to 22-10 in favor of the Republicans. �Politics is a contact sport,� Stenholm said. �I�ve been in this business twenty-five years. I will play the hand I was dealt.�

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. �There are now about four hundred safe seats in Congress,� Richard Pildes, a professor of law at New York University, said. �The level of competitiveness has plummeted to the point where it is hard to describe the House as involving competitive elections at all these days.� The House isn�t just ossified; it�s 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 modest�just two hundred and twenty-nine seats to two hundred and six�but 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 redistricting�and, 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. �There is a sense of embarrassment about what has happened in American politics,� Samuel Issacharoff, a professor at Columbia Law School, said. �The 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.� The case could well become the court�s most important foray into the political process since Bush v. Gore. As Ronald Klain, a Democratic lawyer in election-law cases, puts it, �At stake in this case is control of Congress�nothing more, nothing less.�

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 Republicans�even 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, �We 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.� The Republicans in Harrisburg used venerable techniques in redistricting, like �packing,� �cracking,� and �kidnapping.� Packing concentrates one group�s voters in the fewest possible districts, so they cannot influence the outcome of races in others; cracking divides a group�s 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. �My district had been more or less the same for about a hundred years,� 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. �A lot of people couldn�t believe that a congressman lived in a house like mine,� he said, noting its aluminum siding and probable resale value of about thirty-five thousand dollars. �But that�s the kind of guy I am,� he said. �I go to church down the street. I represent the average person.�

With the Republicans in charge in Harrisburg, Mascara knew he would be little more than a spectator to the redistricting process. �I still thought my district would for the most part remain intact,� he said. �That didn�t occur.� Mascara had met me at a McDonald�s in Charleroi�s 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. �The cars are in the twelfth congressional district, and my house is in the eighteenth,� he explained. �When 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.� The Republicans� 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 �supine seahorse� and the �upside-down Chinese dragon.� 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 Republicans� 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. DeLay�s 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 Democrats� 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 states� seventy-seven House seats. �The important thing to realize was in 1991 the Republicans had control of line-drawing in a total of five congressional districts,� one G.O.P. redistricting expert told me. �In 2001, it was almost a hundred seats. Both parties made the most of it.�

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. Johnson�s most important civil-rights initiatives, led to the election of many more black members of Congress�and was a classic demonstration of the law of unintended consequences.

�When the civil-rights movement started, you had a lot of white Democrats in power in the South,� Bobby Scott, a congressman from Virginia who was first elected in 1992, said. �And, 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 �influence� districts, where we could have a say in who won.� But Republicans sensed an opportunity. �They came to us and said, We want these districts to be sixty per cent black,� Scott, who is African-American, said. �And blacks liked that idea, because it meant we elected some of our own for the first time. That�s where the �unholy alliance� came in.�

The unholy alliance�between black Democrats and white Republicans�shaped 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 �majority-minority.� As Gerald Hebert, a Democratic redistricting operative and former Justice Department lawyer, puts it, �What you had was the Republicans who were in charge for every redistricting cycle at the Justice Department��81, �91, �01. 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.� 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 can�t 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 whites�which presents daunting long-term political problems for the Democratic Party. Many Democrats can�t 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 �Project Ratfuck.�

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.) �This is the same map that DeLay�s people used to redistrict,� Persily said. Indeed, DeLay�s political operation purchased ten copies of the software, which is called Caliper�s Maptitude for Redistricting and costs about four thousand dollars per copy. The software permits mapmakers to analyze an enormous amount of data�party registration, voting patterns, ethnic makeup from census data, property-tax records, roads, railways, old district lines. �There�s only one limit to the kind of information you can use in redistricting�its availability,� Persily said. (In Pennsylvania, Republicans used Carnegie-Mellon University�s 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. �The whole process has got much more sophisticated,� Persily went on. �Party-registration data are not the only kind of data you want to use. You want to use real election results. That�s a big change from ten years ago. We have become very good at predicting how people are going to vote. People�s 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.�

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. �The Supreme Court has said that the requirement of one man, one vote means that each district must have exactly�exactly�the same number of people,� 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. �That�s where the local congressman lives, a Democrat,� he explained. �We have little elephants for the Republican incumbents.� The program seemed easy to use, justifying the boast, on the software company�s Web site, that you could �start building plans thirty minutes after opening the box.� Persily chuckled. �At a certain point, you admire the video-game appeal of all this.

�There used to be a theory that gerrymandering was self-regulating,� Persily explained. �The 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 it�s not self-regulating anymore. The software is too good, and the partisanship is too strong.�

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: �A 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.

�So the important question is who controls the safe seats,� Leach said. �Currently, 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?�one-sixth. That�s 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 it�s one twenty-fourth of the population that controls the seat in each party.

�Then you have to ask who are those people who vote in primaries,� Leach went on. �They 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 parties��We�ve got to appeal to our base.� It�s 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.�

Scholarly research gives some support to Leach�s impressions. �Partisan gerrymandering skews not only the positions congressmen take but also who the candidates are in the first place,� Issacharoff, of Columbia, said. �You get more ideological candidates, the people who can arouse the base of the party, because they don�t have to worry about electability. It�s becoming harder to get things done, whether in Congress or in state legislatures, because partisan redistricting goes on at the state level, too.� 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 �if 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.�

With partisan gerrymandering, House members in effect pay a penalty if they reach out too much to members of the other party. �What is laughable is the basic premise of what is going on,� Charlie Stenholm, the endangered Texan, said. �The 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 that�s why these people vote for me. There shouldn�t be a penalty for reaching out across party lines.� If Stenholm and his ilk disappear, they will be replaced by reliable Republicans�who won�t have to worry about their own chances for re�lection.

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 sixties�and 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 �numerous and changeable body,� where the members would have �an habitual recollection of their dependence on the people.� 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 �the impulse of sudden and violent passions� 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 �every new election in the states is found to change one half of the representatives.�

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 governors� and Senate races were that close. In 2002, only four House challengers defeated incumbents in the general election�a 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 �unconstitutional to give a State�s million Republicans control over ten seats while leaving a million Democrats with control over five.� The Republican response is to say, in effect, �Welcome to the big leagues. State legislatures have always played this kind of hardball, the courts ought to stay out of the game altogether, and there�s no such thing as a nonpartisan solution.� Justice Sandra Day O�Connor, 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 Brennan�s notes of the court�s internal debate, O�Connor said that any legislative leader who failed to protect his party�s interest in redistricting �ought to be impeached.�

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 �essentially shut out of the political process.� According to Heather Gerken, of Harvard, �The 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 �shut out� of the process�they 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 it�s time to get back in the process.�

The best argument for Republicans in the Pennsylvania case, it seems, is that it�s simply not the court�s business to scrutinize legislative maps for partisan gerrymandering. �Redistricting deals with inherently political questions,� J. Bart DeLone, the senior deputy state attorney general who will argue for the case for Pennsylvania, said, �and 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.� Still, this is a Supreme Court that has not hesitated to tell politicians what to do. �It�s an extremely confident court,� Gerken said. �They second-guess Congress, states, state judges all the time. They are deeply engaged in the democratic process. I can�t imagine that this is anything but an effort to pull in the reins of partisan gerrymandering.�

But how? The Democrats propose a rule based, in part, on the Court�s 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. �The rule now is, You can�t draw ugly districts if it�s purely for race,� Sam Hirsch, one of the lawyers for the Pennsylvania Democrats, said. �The rule should be, You can�t draw ugly districts if it�s purely for politics, either.� But Hirsch�s adversary, DeLone, pointed out, �There 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.� Since it�s 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 Iowa�s 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 nation�s 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. �When we Democrats controlled the legislature, sure we protected Democrats,� Charlie Stenholm said. �But we didn�t do harm to the Republicans who were in office. This thing today is a whole different order of magnitude.� On his porch in Charleroi, Frank Mascara said the issue is a lot bigger than he is. �I�m through, I�m done, out of politics,� he said. �It won�t affect me one way or the other. But the system is now totally out of whack, and that matters to a lot of people. It�s not about me, it�s about power on a national scale.�

Wall Street Journal
The Gerrymander Moment
Democrats discover this incumbent-protection racket
December 5, 2003

A strange and wonderful thing has happened as liberals have watched Republicans tighten their grip on the U.S. House of Representatives: They have suddenly discovered the threat to competitive elections posed by "gerrymandering," or the process of politicized Congressional redistricting. And they're right.

The latest liberal to have this Eureka! moment is Jeffrey Toobin, writing in The New Yorker, who sounds like Gomer Pyle discovering that there are self-interested politicians in this world--led of course by the evil Tom DeLay! "When does gerrymandering become a threat to democracy?" says his essay's headline, and a cynic might conclude that the answer around The New Yorker is: "When Republicans can use it to hold the House for another decade."

Mr. Toobin discloses what these columns have noted for years, no, decades--namely that new computer software "permits mapmakers to analyze an enormous amount of data--party registration, voting patterns, ethnic makeup from census data, property-tax records, roads, railways, old district lines."

Armed with these tools, incumbent politicians can design House districts that more or less guarantee their re-election short of some political tsunami. As a result, most races for the House--the body our Founders designed to most reflect changes in public opinion--are over long before the first vote is even cast. This is bad for democracy, and if liberals have suddenly figured this out we're glad to see it, whatever their partisan motives.

All of this has been coming into sharper public focus because of a series of court challenges to several recent GOP gerrymanders. The U.S. Supreme Court has agreed this term to hear a Democratic challenge to a GOP plan in Pennsylvania. And this week, the Colorado Supreme Court ruled that a recent GOP-friendly gerrymander violates that state's constitution.We're actually sympathetic to Colorado Democrats here, because the GOP tactics were all about incumbent protection. In 2001, state legislators deadlocked on a new map of Colorado's seven House seats, and a federal court decided district boundaries for the 2002 elections. The GOP gained control of both houses of the state legislature that year and proceeded to design a gerrymander that locked in partisan majorities for all seven House Members from the state--five Republicans and two Democrats.

Republican Bob Beauprez won his House seat by only 121 votes in 2002, but under the new plan he could mail his victory in next year. This may be good for Republicans, but it certainly isn't good for competitive democracy. The Colorado Supreme Court threw the gerrymander out on other grounds, namely that the legislature can't redistrict more than once a decade, but the result is still healthy.

This Colorado decision follows the dust-up in Texas back in May, when Democrat state legislators high-tailed it to Oklahoma to deprive the GOP majority of the quorum needed to enact a more-favorable redistricting plan. That case is still in court, but Texas Democrats are now hoping the Colorado outcome will make an impression on the Lone Star judiciary.

Mr. Toobin does at least devote some space to the legendary efforts of the late Californian Philip Burton, who after the 1980 Census used a pen to grow a one-seat Democratic majority in the Congressional delegation to nine. He famously called the resulting oddly shaped voting districts "my contribution to modern art."And, as the Almanac of American Politics reports, 10 years later in Texas "Democrats produced their masterpiece, the 1991 redistricting plan drawn by Bob Mansker, an aide to Democratic Congressman Martin Frost." The new map "carved out with incredibly convoluted lines three new districts for Democrats." Today, the very same Congressman Frost is denouncing Mr. DeLay for returning the favor.

All of this reminds us of the similar process of liberal self-discovery concerning the independent counsel statute. Only when the law began to skewer Clinton officials did Democrats start to agree with us that the law was a terrible idea. But, hey, let's not be partisan about this. If liberals now want to campaign for turning electoral map-drawing over to nonpartisan or bipartisan bodies the way Iowa and Washington state have, welcome aboard.

Denver Post
Political lines being drawn in Pa. case
By Diane Carman
December 3, 2003

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.

Washington Post
Once Is Enough
December 3, 2003

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.

Washington Post
Polarization Myths . . .
By Robert J. Samuelson
December 3, 2003

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.

Anyone who lived through the 1960s, when struggles over Vietnam and civil rights spilled into the streets and split families, must know that we're much less polarized today. It's not a close call. Unlike then, today's polarization exists mainly on the public stage among politicians, TV talking heads, columnists and intellectuals. Still, the polarization myth persists. Consider a new report from the Pew Research Center for the People and the Press, which bulges with public opinion data that show (it says) "rising political polarization and anger." Actually, the data -- stretching from the late 1980s until now -- don't show that at all.

It's true that over this period political allegiances have shifted slightly. Republicans gained, Democrats lost. As late as 1987, about 35 percent of adults considered themselves Democrats, 26 percent Republicans and 39 percent independents (including those who "don't know"). Now it's a dead heat: 31 percent Democrats, 30 percent Republicans and 39 percent independents. Gaps on some issues between political parties have predictably widened. If Democrats favoring a stronger military become Republican, party differences on that issue will rise.

But polarization -- a visceral loathing of your opponent -- increases only if partisans feel more rabidly about their views. Here, little has changed. One standard survey question is whether Democrats and Republicans consider themselves "strong" party members. In the late 1980s slightly less than half of Republicans considered themselves "strong" Republicans; it's still slightly less than half. Among Democrats, about half are now "strong" and were then, too.

Beyond partisan divisions, Americans share many basic beliefs. After Sept. 11, 2001, patriotism remains high. Most people (two-thirds or more) believe that hard work promotes success. Indeed, many opinions have hardly budged since the late 1980s. Surveys asked whether:

� The United States should be "active in world affairs" -- 87 percen
� "Government should restrict and control people coming into our cou
� "There is too much power concentrated in the hands of a few big co
What's more important is that the changes that have occurred -- generally outside politics -- signal more, not less, tolerance, as the Pew data show. There seems to be a general shift in attitudes, led by changes among the young. Consider race. In 1987, 48 percent thought it "all right for blacks and whites to date"; now 77 percent do. Something similar has occurred on homosexuality. By a 51 percent to 42 percent margin, Americans believed in 1987 that "school boards ought to have the right to fire teachers who are known homosexuals''; now that's rejected, 62 percent to 33 percent.

Sociologist Alan Wolfe of Boston College, after conducting extensive interviews with middle-class families, reached similar conclusions. "Reluctant to pass judgment, they are tolerant to a fault, not about everything -- they have not come to accept homosexuality as normal and they intensely dislike bilingualism -- but about a surprising number of things, including rapid transformation in the family, legal immigration, multicultural education and separation of church and state," he wrote in "One Nation, After All" (1999).

This tolerance, Wolfe argued, springs partly from middle-class fears that "our society might become hopelessly divided." Cherishing "the belief in one nation," many ordinary Americans disdain fierce moral combat. Wolfe decided that the vaunted "culture war" is "being fought primarily by intellectuals."

Just so. Today's polarization mainly divides the broad public from political, intellectual and media elites. Of course, sharp differences define democracy. We've always had them. From Iraq to homosexual marriage, deep disagreements remain. But the venom of today's debates often transcends disagreement. Your opponents -- whether liberal or conservative -- must not only have bad ideas. Increasingly, they must also be bad people who are dishonest, selfish and venal.

Among politicians, the bitterness reflects less political competition, especially in the House of Representatives. Democrats and Republicans increasingly have safe seats. In 2002, 83 percent of House incumbents won at least 60 percent of the vote; in 1992 only 66 percent of incumbents won with that margin. As a result, members speak more to their parties' "bases," which provide most electoral and financial support. There's less need to appeal to the center. The Founders saw the House as responding quickly to public opinion. But "the barometer is broken," says veteran congressional correspondent Richard E. Cohen of National Journal.

As for media and intellectual elites -- commentators, academics, columnists, professional advocates -- they're in an attention-grabbing competition. They need to establish themselves as brand names. For many, stridency is a strategy. The right feeds off the left and the left feeds off the right, and although their mutual criticisms constitute legitimate debate, they're also economic commodities. To be regarded by one side as a lunatic is to be regarded by the other as a hero -- and that can usually be taken to the bank through more TV appearances, higher lecture fees, fatter book sales and larger audiences and group memberships. Polarization serves their interests. Principle and self-promotion blend.

All this is understandable and, in a democracy, perhaps unavoidable. But it distorts who we are and poses a latent danger: Someday we might become as hopelessly polarized as we're already supposed to be.

New York Times
A Ruling for Democratic Principles
December 2, 2003

The Colorado Supreme Court took a stand for electoral fairness this week hen it struck down a partisan redrawing of the state's Congressional district lines. It held that districts should be drawn once after the census, not whenever a party sees a chance to pick up seats. The alternative would mean constant redistricting, and interference with
state Congressional delegations, whenever one party got the upper hand at the state level.

Colorado adopted Congressional district lines after the 2000 census that
were used in the 2002 elections. The boundaries, chosen by a state court, were nonpartisan. Each party retained the advantage in the districts it already held, and a newly added district was so evenly drawn that the margin of victory in 2001 was just 121 votes.

But last spring, when Republicans took control of state government, they pushed through a new plan in the final days of the legislative session. This "midnight gerrymander," as critics called it, was designed to increase
Republican control. It added 21,000 Republican voters and removed 7,000 Democrats in the district that had a 121-vote margin, and did similar mischief to another swing district.

The Colorado Supreme Court has now restored the earlier lines. The court's ruling relied heavily on the text of the State Constitution. But it
also noted that throughout Colorado's history, parties that had gained
control of state government in mid-decade had not, until now, redrawn
Congressional districts merely for partisan advantage.

The Republican Party in Colorado was not alone in its calculated exercise of raw power. At a time when politicians talk of reducing partisan rancor, many are willing to throw out the rulebook to gain advantage. Under the direction of the House majority leader, Tom DeLay, a similar dispute is raging in Texas, where Republicans also redrew Congressional districts a second time after the census. A court challenge is pending.

This week's Colorado ruling is a welcome reaffirmation of the importance of respecting the rules of democracy. Parties that want to increase their
standing should do so by winning at the ballot box, not by developing the
most ruthless redistricting strategies.

Washington Post
 . . . And Manners
By Anne Applebaum
December 2, 2003

Anyone who has ever invited guests of opposing political persuasions over to dinner will know how quickly it can all go wrong. Having imagined they'd exchange their interesting views about something vaguely neutral -- European politics, say, or Russian literature -- I've watched my normally civilized friends spend the evening shouting at one another about something utterly unrelated, such as whether the Pledge of Allegiance should contain the phrase "under God." In the end, the only thing that can save such an evening is everybody's sense of etiquette. Be polite to the hostess, say thank you when the coffee is poured, express admiration for the mixed berries with lemon mint sauce. Follow those rules and it is possible to change the subject, calm down, finish dinner. Fail to follow them and everyone goes home early.

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.

Washington Post
To the Polls
November 4, 2003

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. 

With 66 percent of the state legislative seats uncontested by the other party, Northern Virginians' best hope is to support experienced candidates who can work as a delegation in Richmond, using the region's strength in numbers to seek the revenue necessary for good schools with fast-growing enrollments, extraordinary transportation needs and other programs that urban-suburban neighborhoods must provide.

The local elections alone -- with outcomes up in the air and candidates at odds with each other over a wide variety of important issues -- ought to bring out the vote. In the counties, as in Richmond, simplistic tax cap-and-cuts policies are a dangerous way to go. Tax restructuring -- letting counties exercise the powers that cities already have to relieve dependence on property taxes -- is the sensible approach.

Thanks to generally skilled, knowledgeable leaders who grasp the complexities and interdependence of local, regional and state decision-making, Northern Virginia has been well governed. Voters who value these qualities had best not sit on their hands and allow for bad surprises. The polls will be open from 6 a.m. to 7 p.m.

Albuquerque Journal
Incumbents Choose Their Voters
By Walter Cronkite
November 4, 2003

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.

We've been doing it in this country ever since the Founding Fathers sought to assure that each congressional district would represent as nearly as possible an equal number of citizens.

They provided a census, to be taken every 10 years, as the basis on which the districts could be realigned. Unfortunately, they left to the states how those district lines would be redrawn. The state legislators undertook the task and highly politicized it.   

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."

Gerrymandering is a bipartisan sin. If we single out Rep. DeLay and his Texas Republicans now, we can also indict California Democrats who, at one time, created a district for one of their incumbents that had 385 sides. The process perpetuates the rule of the party in power by making its members' districts virtually uncontestable, in effect disenfranchising many voters by making their votes meaningless.

In a recent update of his 1993 book, "Real Choices/New Voices," political scientist Douglas J. Amy says of gerrymandering that "instead of voters choosing their politicians, politicians actually choose their voters."

In the 2000 election, Democrats in the state of Texas won 57 percent of the seats in the U.S. House of Representatives, though they received only 47 percent of the statewide vote. Now, the Republicans are retaliating- with a vengeance. Their haste might bring the whole redistricting issue before the Supreme Court.

Except in cases where representation of racial minorities has been diluted, the courts traditionally have shied away from stepping in. But the Supreme Court has said that the practice of redistricting has its constitutional limits. And though it hasn't defined just where those limits are, Texas might be about to provoke a definition.

William E. Forbath, a professor of constitutional law and constitutional history at the University of Texas, believes the gerrymandered district map just approved by the Texas governor might trigger court action on several grounds.

A likely one could be that Texas was redistricted after the 2000 election, but the DeLay forces chose to shatter precedent and redistrict again, just three years later. Another ground, says Forbath, is the blunt, one might say brazen, way they have advertised their purpose- to safeguard more Republican seats in Congress.

The problem with fixing this gaping hole in the fabric of our democracy is that neither party, when in power, is likely to forgo the advantage given it by the latest census- especially in the intensely partisan atmosphere of our national politics today.

Still, concern over this essentially corrupt practice has been rising, and some states have been trying alternatives to redistricting-by-legislature.

Iowa has adopted an independent commission, with salutary results- more competitive elections and more sensible, contiguous congressional districts.

Rigged elections here seem especially scandalous today, as we preach to the Iraqis and others in the developing world the virtues of representative democracy and hold ourselves up as the paragon of that virtue. It is high time we cleaned up our own house.

New York Times
Texas Standoff
August 27, 2003

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.

Wall Street Journal
Incumbent Protection Racket: The liberal media are shocked, shocked to find gerrymandering going on. 
August 18, 2003

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.

No-Lose Proposition
House incumbent re-election rate
1994 90%
1996 94%
1998 98%
2000 98%
2002 98%
Source: Mark Gersh, National Committee for an Effective Congress

American-Statesman
Another try at redistricting, another trip for Democrats
By Editorial Board
July 29, 2003

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.

Wall Street Journal
House of Unrepresentatives
By Dick Morris
July 18, 2003

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).

The Charlotte Observer
Try nonpartisan redistricting Creation of safe seats takes decision-making out of voters' hands
By Jay Bookman
July 15, 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].

Washington Post
GOP Redistricting: New Boundaries of Politics?
By T. R. Reid
July 2, 2003

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.

New York Times
Court to Hear Case on Congressional Redistricting
By Linda Greenhouse
June 28, 2003

WASHINGTON, June 27 � 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 � 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
On-Line Publication of the Democratic Leadership Conference Idea of the Week: Reinventing Redistricting
June 27, 2003 

Late, late last night, as though reflecting a deliberate effort to avoid scrutiny, the U.S. House of Representatives passed an incredibly complex Medicare prescription drug bill on a 216-215 vote, after the Rules Committee refused to allow a New Democrat alternative sponsored by Rep. Cal Dooley (D-CA) and more than 40 other House Members to come to a vote.

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.

Blueprint Magazine (New Democrats On-Line)
The Republicans' Great Gerrymander: The GOP's biggest weapon isn't Bush or good candidates. It's redistricting.
By Mark Gersh
June 27, 2003

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.

Washington Post
GOP's New Push On Redistricting House Gains Are at Stake in Colo., Tex.
By Juliet Eilperin
May 9, 2003

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."

Blueprint Magazine
How the Hill Was Lost Two analysts for the Cook Political Report examine the 2002 election and come to a startling conclusion.
By Jennifer E. Duffy and Amy Walter
February 11, 2003

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

The New York Times
High court to hear case on racial redistricting: Georgia Democrats want flexibility to alter 'supermajority' black districts.
By Linda Greenhouse
January 18, 2003

WASHINGTON � 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.

New York Times
Why Iowa Has So Many Hot Seats
By Adam Clymer
October 27, 2002

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. 

New York Times
Hispanic Frustration
By David E. Rosenbaum 
October 3, 2002 

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.

Common Sense
Take Out the Politics
By Paul Jacob
October 1, 2002

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.

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