High Court Should Halt Obsession With Redistricting

Posted May 13, 2003 at 5:45pm

The most interesting political story these days is in Texas, where a band of intrepid Democratic legislators has decamped to Oklahoma to block a quorum in the Texas House and deny Republicans (and U.S. House Majority Leader Tom DeLay) the fruits of their efforts to redraw Texas Congressional district lines. [IMGCAP(1)]

Texas’ efforts follow on Colorado’s. In both cases, the legislatures deadlocked in the previous cycle on party lines, leading to court-drawn redistricting. In both states, Republicans came out on top in the 2002 elections, gaining partisan advantage in the state legislatures while maintaining the governor’s mansions. In both states, Republicans decided to use their new advantage to redraw the lines drawn after the Census to add to their Congressional ranks.

In Colorado, Republicans were successful, with Gov. Bill Owens signing the new redistricting plan into law last Friday. Democrats vow to take the plan to court. In Texas, Democrats hope to avoid that fate by keeping the Legislature from acting before it goes out of session.

The scene in Austin is a hoot: The remaining lawmakers are confined to the Capitol, locked in by decree, while Texas Rangers (not the ballplayers from President Bush’s old team, but real law-enforcement officials) scour the city and the state to round up the recalcitrants and return them, handcuffed, to their jobs. But the issue is a deadly serious one on several dimensions.

From 1800 on, we have redrawn Congressional district lines every 10 years. The first House had 65 Members, reflecting the population guidelines set out in the Constitution. Each 10 years, after the constitutionally mandated census, seats were added to the House to fit the numbers in the Constitution. By 1910, when the House had grown to more than 400, we decided that enough was enough and capped the House at 435 Members, requiring a different set of criteria for redistricting thereafter. The census would count the population, leading to a formula to divvy up the 435 seats among the states to fit the numbers. Then, each of the states (except those with only one House member, such as Alaska or the Dakotas) would redraw the lines to fit population shifts. Occasionally, there would be a glitch or a dispute, sometimes requiring one election with all the Members elected at-large until new lines could be agreed upon. [IMGCAP(2)]

Frequently, the fights within states over redistricting have been as fierce and bloody and partisan as any in American politics; the stakes, after all, are high. The problems are not new. Remember, the term “gerrymander,” referring to the skewed and twisted lines of Congressional districts to fit partisan ends, came from Elbridge Gerry, a signer of the Declaration of Independence, from his efforts in 1811 as governor of Massachusetts to draw lines to favor Democrats over Federalists. But as a rule, the fierce fights would take place only once a decade.

Now, Colorado and Texas are moving to set new precedents — ones that could lead to new district lines every time an election shifts majority status. That would mean regular pitched battles, extending for months and diverting attention from real substantive issues and problems, and lead to confusion for voters on a regular basis over who represents them. It’s bad enough once a decade. This will no doubt end up going to the Supreme Court, which will have to decide what the framers meant about redistricting after each census, and whether it is appropriate to redistrict on a nearly continuous basis.

I hope the court uses this opportunity to rethink its whole approach to redistricting. As practiced in recent decades, it has done more damage than anything else to comity, bipartisanship and moderation in Congress. Redistricting has contributed mightily to the deep partisan and ideological divisions in Congress, while narrowing the range of competition to almost absurdly low levels.

In a nutshell, virtual parity between the parties nationwide has led to an overall standoff. A typical dynamic is that the two parties in a state work out a deal where each side gets to protect its own incumbents. In some instances where the parties can’t agree, Republicans have worked with minority groups to invoke the Voting Rights Act and create a combination of safe Republican seats in suburban areas surrounding majority-minority Democratic districts in cities. The number of highly competitive districts has dwindled to less than 10 percent of the House.

Safe seats mean that the real competition, if it exists at all, is in primaries, which are dominated by ideological activists. Centrist candidates in both parties have trouble surviving in these districts, and more sharply ideological candidates have emerged. Democrats have thus moved left as a group, Republicans have moved right, and the House has become bipolar (take either meaning) even though the country has stayed largely in the middle. Districts have become more homogeneous, and more like echo chambers for Representatives, reinforcing their partisan and ideological instincts instead of making them sensitive to the views and interests of others in the society. Elections matter less; the House is more immune to change because so few districts are open to change. A swing of 5 percent — a sea change in most elections — will change few seats from one party to the other.

The biggest culprit is the Supreme Court. It began in 1962, with the key case of Baker v. Carr. There, the court created the doctrine of “one man, one vote,” to rectify an outrageous skewing of many state legislative lines to give rural districts more power over urban ones. The population differences among districts was enormous, leading to a clear dilution of representational power for many voters. The principle of one person (let’s bring it up to date), one vote was a powerful and correct one. But of course, there are other criteria that should be important in representation in a democratic republic. Districts should reflect communities of interest. They should be as compact and contiguous as possible, in order to reflect those communities and create the best links between Representatives and represented. They should include the diversity of populations and interests that are represented in communities and states throughout the nation. They should, if successful, result in a legislative body that is a microcosm of the nation, reflecting its people and its ideologies.

In the four decades since Baker, the court has ignored all these other criteria and taken “one person, one vote” to a ridiculously obsessive level. Through a slew of decisions since, the court, and its lower court partners, have basically made equal population in districts the sole criterion for acceptance of redistricting plans (other than Voting Rights Act considerations), a separate issue courts have rejected because the population differences between districts were greater than a fraction of 1 percent.

With the availability of powerful computers, this fact has enabled consultants from both parties to draw lines to exact population numbers that extract maximum political advantage while ignoring any other factors. If they had to consider as equally relevant the communities of interest and contiguity of districts, we would have a very different pattern. In Iowa, to pick the best example, a nonpartisan commission drew Congressional district lines with those criteria central. The result was lively competition in several districts — indeed, more competition than in California, Texas or the other large states.

Rep. Earl Blumenauer (D-Ore.), who has thought long and hard about this issue, thinks we may need a popular movement, through initiatives, to break the logjam and create a series of Iowa-like models. I hope we don’t have to resort to initiatives. A better option is for the Supreme Court, perhaps via the Texas or Colorado cases, to come to its senses, stop its obsession with numbers, and shift the redistricting balance to foster competition and balance — while confining the fights to once every 10 years, not every two.