The Redistricting Thicket

The great Texas redistricting battle of 2003 is now under sober (ha!) consideration by the U.S. Supreme Court. From my Massachusetts perch, it’s hard to see how Texas Democrats win this one. I am writing in the week before the March 1 oral arguments and thus without knowledge of whether Justice Clarence Thomas asked thoughtful, penetrating questions and whether Justices Scalia, Roberts, and Alito betrayed deep skepticism of Republican motives. But I’ve just read the briefs from both sides. Stipulating ab initio that I am not a legal expert or even a good prognosticator, I’d say it is pretty clear the Dems are screwed, or as we say up here in the American Athens, scrod.

But it was a good fight! It truly was. Worth those trips to Oklahoma and New Mexico, and the national headlines. And Texas Dems rearing up, not rolling over for Tom DeLay. Plus, now there’s a consolation prize, as DeLay has to sweat it out in the courtrooms and in Congressional District 22. So, no regrets. There’s just too damn many Republicans in Texas these days. Whaddaya gonna do.

Also on the plus side: Those national headlines directed attention to the evils of partisan gerrymandering and set off brushfires of reform. Well, more like grassfires. Okay, kind of like hot flashes. When Gov. Arnold Schwarzenegger asked California voters to take redistricting out of the hands of lawmakers and entrust it to a panel of retired judges last year, this looked like an issue that could take off. But last fall, California voters said no. Same result in Ohio. Well. Redistricting reform is something to think about, anyway.

So let’s think about it. What is the nature of the problem and what might fix it?

To begin with, it seems fishy to have politicians conspiring to draw the lines that will make or break their own careers. Redistricting, it’s often said, functions as an incumbent-protection racket. And surely it’s no stretch to imagine a dominant party using its power to hopelessly stack the odds against a minority party. Arizona voters didn’t like the smell of it and set up a new independent redistricting commission in 2000. Why wouldn’t that be the obvious solution everywhere?

Politics intrudes: It seems like a good idea to make redistricting a “non-partisan” process when you’re in the minority party. Gov. Schwarzenegger talked a good-government line, but his real objective, voters may have suspected, was to improve Republican electoral opportunities. Florida Gov. Jeb Bush cheered Arnold’s crusade from afar: Break that stranglehold the California Dems have in Sacramento. You go. Now Common Cause is pushing a non-partisan commission in Florida, where Republicans control both houses of the legislature, and Gov. Bush is not at all inclined to be, shall we say, a reformer with results. He likes the current results. Florida, as we are so painfully aware, has about as many Democratic voters as Republicans. Yet the Congressional delegation now stands at 18 Republicans and seven Democrats.

We have a racket like that going in Massachusetts. About a third of the electorate here is reliably Republican (official GOP registration is only 13 percent because most are too embarrassed to publicly declare themselves) and somewhat more than a third is rock-ribbed Democrat. The other third swings both ways, tending to vote for Democratic presidential candidates and Republican governors. In 2004, George W. Bush, worst president ever, got 37 percent of the vote here against native son John Kerry. So, in fairness, you might think a third of our Congressional delegation would be Republicans. Not so. It’s an all-D team, 10 out of 10. This is not unrelated to the fact that 85 percent of the 200 seats in the Massachusetts legislature are warmed by Democratic duffs.

Common Cause activists, good-government idealists that they are, fanned out across the state last fall to gather signatures for a “Fair Districts” campaign. The idea was to put a constitutional amendment on the ballot in 2008, creating an independent redistricting commission. But the effort fell a few thousand signatures short and the question will not make it to the ballot (unless they try again for 2010). No savvy Democrat would vote for it anyway. Why should Massachusetts send more Republicans to Washington when Florida sends at least five too many because of GOP gerrymandering? There’s a war on for control of Congress, man! Let Florida clean up its own act, then we’ll talk.

As long as we’ve had legislatures, mapmaking has been used for political advantage. For most of our history the rule was “anything goes.” In a 1946 case before the Supreme Court, Illinois was challenged on the grounds its legislature had not readjusted district lines since 1901. The unbalanced districts, it was argued, violated the 14th Amendment’s guarantee of equal protection of the laws. In effect, keeping old lines in place allowed rural districts to control the legislature and deprived faster-growing urban areas of equal voting power. But the court declined to act. As Justice Felix Frankfurter famously warned, “Courts ought not to enter this political thicket.”

That advice held until the landmark “apportionment cases” of the early 1960s. The Warren Court went directly into the thicket, ruling that for “one person, one vote” to be meaningful, political districts must have equal populations. The court made clear that both legislative and Congressional seats must be reapportioned and district lines redrawn every 10 years, after new census figures become available. Passage of the Voting Rights Act in 1965 took the courts further into questions about how to ensure fair representation to racial and ethnic minorities.

So we are now four cycles into the modern era of redistricting law. It’s been a given since the 1970s that courts will have to prod legislatures to give up their methods of marginalizing minorities, that is, to abide by the Voting Rights Act and the 14th Amendment. The body of law that has developed on these matters is extensive and not, to the average mind, coherent. Due to the court’s right turn in the 1990s, it is no longer permissible to draw a district purely for race-related purposes. That’s a racial gerrymander. Nor can legislatures intentionally dilute racial and ethnic voting strength. So you can be sued for going too far or not far enough. Upshot: Every 10 years somebody is gonna get sued.

Race questions swirl around the current Texas case, of course. Republicans were proud that their new plan was pronounced to be free of racial bias and cleared by the Justice Department at the end of 2003. But recently we learned from the Washington Post that those professionals at the Justice Department who understand the law advised that the plan not be cleared. They were overruled by certain high-level Republicans in Washington. So it is not impossible that the Supreme Court could find fault with the effects of the 2003 DeLay plan on racial and ethnic grounds.

But the core of the challenge has to do with partisanship. The Supreme Court was asked in the 1970s and again in the 1980s to consider the problem of political gerrymandering. In a Connecticut case decided in 1973 (Gaffney v. Cummings) the court upheld the right of redistricters to divide up legislative seats in a way that approximated the relative voting strength of Republicans and Democrats. That’s one way to do it, the court said, noting: “Politics and political considerations are inseparable from districting and apportionment.” In 1986, the court declined (Davis v. Bandemer) to strike down a Republican-friendly plan in Indiana challenged by the state’s Democrats. While the justices agreed there might be such a thing as an unconstitutionally partisan gerrymander, they didn’t see it in Indiana. For such gerrymandering to be subject to judicial scrutiny there would have to be “continued frustration of the will of the majority of the voters or a denial to a minority of voters of a fair chance to influence the political process.”

By the time the question came up again after the post-2000 redistrictings, the Supremes were close to washing their hands of the whole matter. Pennsylvania’s redistricting plan was challenged in Vieth v. Jubelirer. The grounds will sound familiar: Republicans, controlling both houses of the legislature and in cahoots with national party leaders in Washington, designed new districts to ensure a predominantly Republican Congressional delegation. The result was an array of weirdly shaped districts that produced a 12-to-7 Republican advantage, in a state that has leaned slightly Democratic in recent presidential elections.

In its 2004 Vieth ruling, the court blessed the Pennsylvania Republican gerrymander. Four justices were in favor of giving up the idea in Davis that partisan gerrymandering could be a “justiciable” matter. Joining Justice Antonin Scalia in that opinion were Justices Clarence Thomas, Sandra Day O’Connor, and William Rehnquist. Justice Anthony Kennedy cast the fifth vote to uphold the Pennsylvania plan, though he suggested there could, theoretically, be grounds for striking down overly partisan districts. It’s just that the court has not been able to come up with any way of deciding how partisan is too partisan.

In light of the Vieth ruling, one might ask how there is any chance the Texas plan will be thrown out on grounds it went too far.

The argument in Jackson v. Perry, now before the court, is that this time the Republicans really went over the top. (Eddie Jackson is one of 34 Texas voters who sued; Jackson v. Perry is one of four cases consolidated by the court. The others are Travis County v. Perry; League of United Latin American Citizens v. Perry; and GI Forum of Texas v. Perry.) The Pennsylvania plan was partisan, sure, but that redistricting had other purposes, too, such as meeting the requirements to equalize population. By the time DeLay and Texas House Speaker Tom Craddick hatched their plans to create a new Republican majority, Texas already had a legal plan in place. True, it wasn’t a legislative plan, because the legislature didn’t get the job done in 2001. A three-judge federal court in East Texas was forced to step in. But the redistricting requirements had been met. Thus, the plaintiffs argue that Texas government leaders acted solely for partisan reasons. Not only is such government partisanship unsavory, it violates equal protection of the laws, the plaintiffs say. “Having wholly failed to act when it had such an obligation in 2001, the State should not be allowed to redraw the map later in the decade solely to engineer what it views as a better partisan outcome,” according to the plaintiffs’ brief.

The state’s argument in defense amounts more or less to “partisan, schmartisan.” Here’s how things came down, explains Texas Attorney General Greg Abbott’s brief: Former Congressman Martin Frost and his Democratic allies in Austin put a partisan gerrymander in place in 1991. The federal district court in 2001 “perpetuated” the Democratic bias so that by 2002, when Republicans received 53 percent of the votes in Congressional races and Democrats got 43 percent, the Congressional delegation still contained 17 Democrats and only 15 Republicans. When the legislature acted in 2003 the majority party was merely acting “to replace an antimajoritarian map.” Says the state: “That purpose—unraveling a perceived preexisting political gerrymander—is an entirely legitimate, even laudable, legislative purpose.”

Relying on Vieth, the state claims that showing partisan motivations in redistricting, even if it is the sole motivation, is not enough. State legislatures are presumed to be partisan in drawing district lines. You must also show harmful effects, according to the state. The Jackson plaintiffs, says the state, “offer no more than a collection of similar intensifiers in front of the word ‘partisan.’ No matter how many times they say ‘sole,’ ‘exclusive,’ or even ‘really super duper,’ Vieth rejected their proposed standard.”

So if what DeLay et al did is “laudable,” does the state deny that mid-decade redistrictings could lead to more rancorous, rule-bending displays of super-duper partisanship? The state does deny it. Redistricting is often “a painful process” for legislatures; most will not want to attempt it more than once a decade. But in any event, says Abbott’s brief, “there is no constitutional prohibition on any particular timing, mid-decade or otherwise, when legislatures might choose to redistrict.”

In the Jackson plaintiffs’ reply brief, there is no claim that either the constitution or statutory law specifically bans a mid-decade redistricting process. “Legislators are not free to recalibrate the machinery of democracy whenever election outcomes strike them as ‘unbalanced,'” they assert. But why not? “For decades,” the plaintiffs argue, “our Nation has been well served by the tradition that lines should not be redrawn for political reasons in mid-decade. The Court should not stretch basic constitutional principles to bless the departure from that tradition that Texas saw fit to initiate in 2003.” Tradition? Does it seem a case might be in trouble when it invokes “tradition” instead of direct law?

And yet we’ve got two new members on the court since Vieth was decided. Maybe Chief Justice John Roberts and Associate Justice Samuel Alito will reveal unexpected sympathies with Texas Democrats and others who are treated unfairly by the rough-and-tumble of politics. Speak truth to power, Jackson plaintiffs! “This was not some bipartisan effort to reallocate districts equitably,” notes the plaintiffs’ reply brief. “Orchestrated from Washington, it was one of the most notorious partisan power grabs in our history, designed to cement the narrow Republican majority in the U.S. House of Representatives.”

Fight the power-grabbers! Roberts? Alito? You with us?

The redistricting wars will rage again in the next cycle no matter what happens in Jackson v. Perry. If the DeLay plan is struck down on partisanship grounds, it means only that legislatures and commissions have to get their gerrymandering done at the beginning of the decade. If, however, the State of Texas wins, there may well be attempts in other states to conduct opportunistic mid-decade redistrictings. (Congress could pass a law against it, but is that likely even in the event of a Democratic majority?)

Maybe more outbursts of partisan warfare will lead to stronger campaigns to get redistricting out of the legislative arena, as several states have done over the years. (Arizona, Hawaii, Idaho, Montana, New Jersey, and Washington use non-legislative commissions for Congressional redistricting.) Iowa is often held up as a model of a less politicized process because district lines are drawn by non-partisan legislative staff members. (But what works in Iowa may not work in less homogenous, less placid states.) New Jersey uses separate bi-partisan commissions for legislative and Congressio
al redistricting,
ith equal numbers of Democrats and Republicans and one non-partisan member to serve as a tie-breaker. In such commissions, the balance doesn’t shift precariously from decade to decade as it can in legislatures. In retrospect, Democrats in Texas may have been better off setting up such a commission in the 1990s before they lost the legislature. Now it’s too late.

So what is to be done in states with one-party control? If there will be no court intervention against partisan gerrymandering, and if legislatures will never willingly give up such potent powers, that leaves only citizen pressure to create better, fairer redistricting methods. What vision of “Fair Districts” can move an increasingly polarized electorate? One of the likely reasons the proposals for independent commissions were turned down in California and Ohio is because voters tend to be suspicious of rule changes that will help one party more than the other. Often at least half the voters have no interest in that.

And then there is the nettlesome question of what problem, exactly, activists and reformers are trying to solve. Public campaigns for redistricting reform rely heavily on spurring voter outrage that most legislative elections are no longer hotly contested. The numbers clearly show that fewer incumbents in recent decades draw challengers and that fewer Congressional races are won by close margins. Among the many amicus briefs filed in Jackson v. Perry is one by the Reform Institute, an Alexandria, Virgina-based non-profit, joined by high-profile moderates Thomas Mann of the Brookings Institution and Norman Ornstein of American Enterprise Institute. The authors note that in 2002 only four challengers across the nation defeated U.S. House incumbents, “the lowest number in modern American history.” In 2004, only seven of the 402 incumbents on the ballot were defeated, and four of those were victims of the DeLaymandering in Texas.

While nobody disputes the trend, it turns out that leading election-law experts are divided on the reasons behind it. Alan Abramowitz, a political scientist at Emory University, has argued that redistricting isn’t the major factor causing uncompetitive elections. He blames the daunting expense of running for office. He also notes that redistricting only happens once every 10 years (usually!) and that Congressional districts have become less balanced because of population shifts that are not caused by redistricters. As readers of Bill Bishop’s work in recent years for the Austin American-Statesman know, there is strong evidence that Americans are clustering into like-minded communities. As cities become Democratic strongholds and rural areas are solid Republican, the natural result is going to be a lot of districts with lopsided elections.

On the other hand, redistricters can either counteract these trends or intensify them. The Texas experience leaves little doubt that district lines can make for fewer competitive races. The 2003 Texas plan, in eliminating the Republican-leaning districts where a moderate Democrat like Martin Frost could sneak by, yielded more “safe” districts and less competition overall.

Should creating competition, then, be a top priority? Nathaniel Persily, a professor at University of Pennsylvania Law School who has been hired by courts in New York, Maryland, and Georgia to redraw districts in recent years, notes that competitiveness is only one of several factors to be considered in redistricting—and one that may not be as important as achieving geographical compactness, minority representation, and a fair allotment of seats to each party. In a provocative article for the Harvard Law Review in 2001, Persily even suggested that most voters “would prefer to be placed in a district in which most of the people share their political beliefs rather than in a district where half of them do not. Similarly, most voters would prefer to be placed in a district where they vote for the winner rather than the loser.” Such an assertion raises an important question: What do voters want? A multiple choice in the voting booth? What’s the point of voting if there’s no chance to make a choice?

In the actual world of drawing district lines there will always be a mix of some districts with “safe” seats and others that are competitive. In fact, there needs to be. Persily notes that if it were possible to draw all districts at close to 50-50 parity, “the slightest shift in voter preferences would lead to a landslide victory for one of the parties.” A certain number of politically lopsided districts is helpful in creating overall partisan balance. After all, voting is more than a “consumer choice” question—it is a collective attempt to form a representative government.

Yet all of this begs the question of what happens when things get too far out of balance.

Sam Hirsch, a lawyer with the Washington firm Jenner & Block (which argued for the plaintiffs in both the Vieth case and the Texas case now before the Supreme Court), compiled evidence in 2003 that suggested Republican use of redistricting in four key states—Florida, Pennsylvania, Michigan, and Ohio—accounts almost entirely for the current Republican majority in the U.S. House. The presidential elections of 2000 and 2004 showed these states to be razor-close in party preference. And yet Republican majorities in those four statehouses allowed them to draw district lines in ways that gave them strongly Republican congressional delegations. Meanwhile, with the national Republican party falling into disgrace, the unlevel playing fields may prevent Democrats from having a fair shot at regaining Congress in 2006.

When the problem is examined this way it presents an interesting set of strategy choices for Democrats, progressives, and good-government reformers. Should the election system be reformed to create more competition or less partisan bias? Fairness and competition are both important values. But they are not necessarily compatible goals.

So let’s see what happens in Florida, as Common Cause urges voters to create a non-partisan commission this November. Voters can expect to hear the usual talk about the need for more competitive elections. What they’ll really be asked to decide is whether partisan gerrymandering in Florida gives them an unrepresentative government.

For Democratic partisans, there’s a more direct approach: Take back the statehouses and win governor races wherever possible. And get it done by 2010.

Dave Denison is a former editor of the Observer.To find a selection of his recent work, see www.davedenison.net.