Jewish World Review May 12, 2004 / 21 Iyar, 5764
Permission to gerrymander
In those North Carolina cases, O'Connor wrote that a districting plan that would be unconstitutional as racial discrimination would be just fine if it was designed for partisan purposes. O'Connor is the only member of today's court who was elected to a state legislature: She has been in the redistricting business herself. She knows that redistricting, when it is done by a legislature, is inherently political, and that there is no way you can take the politics out of it.
And that was essentially the conclusion that the court came to in the Pennsylvania case. Four justices, including O'Connor, ruled that there was no way to determine whether a redistricting plan is overly political. The justice with the deciding vote, Anthony Kennedy, said that there may be some plans that are unconstitutionally partisan, but that he could not say that this was one of them. He evidently found unconvincing Justice Stephen Breyer's 15-page attempt to set forth criteria of what was too political for the Constitution and what wasn't.
As a practical matter, this means that anything goes. The Pennsylvania plan was an obvious example of partisan districting by the Republicans who controlled the process; it is hard to imagine a plan that would be thrown out by a court that refused to throw out this one. Similar examples from this cycle of redistricting include Republican plans in Michigan and Florida and Democratic plans in Georgia and Maryland. There will be others in the 2010 cycle unless changes in the composition of the court suggest a different lineup on this issue.
Commentators both liberal and conservative have bemoaned the Pennsylvania decision. They complain as well about incumbent-protection plans that were adopted as the result of bipartisan deals in California, Illinois, and New York. These plans are made possible, they argue, by redistricting computer programs, which make it much easier to draw such plans. The result of partisan and incumbent-protection plans and of computerization, they argue, leaves too few seats uncompetitive, makes the House less accountable to voters, and increases the leverage of wingers in each party to nominate their kind of candidates in seats that their party cannot lose in November.
So far as I know, none of these commentators has ever done any redistricting. I have. In the late 1960s, I was working for the Oakland County Democratic Party in Michigan and, with a simple adding machine, drew up a redistricting plan for the County Board of Supervisors, which was later enacted and resulted in a Democratic majority on the board even though Republicans won most of the popular votes. The secret, of course, was to create a large number of districts with small Democratic majorities and a smaller number of districts with very large Republican majorities. This was pretty easy in those days, because most of the high-income parts of Oakland County voted overwhelmingly Republican (92 percent for governor in my Bloomfield Township precinct in a 1960s election that was decided statewide by a 51-to-48 percent majority).
Note that I did this redistricting with an adding machine; this was before the time of electronic calculators, much less redistricting computer programs. It was not very difficult for someone who knew the census numbers and the election results. Certainly, it was not difficult for California Rep. Phillip Burton, who drew several congressional and state redistricting plans in California in the 1970s and 1980s. He also kept close track of redistricting in other states. He came up to me once in the hall of the Capitol and said, in characteristically thundering tones, "They've given Kastenmeier too much of Grant County." He was referring to Rep. Bob Kastenmeier of the Second District of Wisconsin, a liberal who usually won re-election by narrow margins; Grant County, in the southwest corner of the state, was the most Republican county in the area. Some of Burton's Republican adversaries used a redistricting computer program to frustrate him. "I have something better than a computer," Burton replied. "My brain."
Burton died in 1983, but there are other people out there with redistricting brainsRepublican Rep. Tom Davis and California Democratic consultant Michael Berman, to name two. Computer programs make the process of drawing district lines faster and easier, but they have not radically transformed the process as critics claim.
What about the complaints that partisan and incumbent-protection plans have unduly reduced the number of marginal districts and have made the House unresponsive to the voters? Start with the complaint against partisan plans. In the past five House elections, Republicans have won the popular vote for the House five times, twice by solid and three times by narrow margins. All five times Republicans have also won a majority of House seats.
So the gross effect of partisan redistricting has not been to unduly reward either party. Democrats gained a small advantage out of redistricting in the 1990 cycle, and Republicans, in my judgment, gained a small advantage out of redistricting in the 2000 cycle (some Democrats argue that redistricting resulted in no net gain for either party; these are matters of fine judgment).
The states with heavily partisan plans in the 2000 cycle included both Republican (Pennsylvania, Michigan, Florida, andsince 2003Texas) and Democratic (Georgia, Maryland) redistrictings. It is possible that one party will have a bigger advantage in the 2010 cycle. But if the country remains evenly divided between the parties along current lines, that seems unlikely. So we don't need to outlaw partisan districting to make sure that the party with the most votes gets a majority in the House.
We should note also that partisan redistricters do not always succeed in their purposes. The 17th District of Pennsylvania, which gave George W. Bush a solid majority in 2000, elected Democrat Tim Holden in a two-incumbent contest in 2002. The 12th District of Georgia, which has a nearly 50 percent black population and which voted for Al Gore in 2000, elected Republican Max Burns in 2002.
Moreover, over the course of a 10-year period between censuses, partisan alignments can change, so that districts that started out safely Republican or Democratic become marginal and can be captured by the other party. No one has any guarantee that the political alignments of 2000, on which the redistricters based their plans (except for the 2003 plan in Texas, whose shapers had the advantage of knowing the 2002 election results), will stay in place up through the 2010 election. In fact, during the 1982-90 and 1992-2000 intercensal cycles, there were such changes in partisan alignments. Southern California districts that were carried by Republicans in 1992 and 1994 were voting heavily Democratic by 1998 and 2000. Georgia districts that seemed safely Democratic in 1992 were safely Republican by 2000.
The nation abounds with such examples. We have passed through only one election with redistricting plans from the 2000 cycle. We will pass through four more. Would anyone like to bet $1,000 that the political alignments will not change in this decade as they did in the past two?
So I am less worried than many other commentators that the partisan and incumbent-protection redistricting plans in the 2000 cycle will seal incumbents in and prevent serious competition in a larger number of districts than the admittedly small numbers that were seriously contested in 2002 and are being seriously contested today. This is not necessarily an argument against the system of nonpartisan (or bipartisan) commissions that redistrict House seats under the state laws of Washington, Iowa, and Arizona. I suppose I could live with such systems in every state, though they do have the disadvantage of sometimes ousting seasoned or particularly talented or well-placed legislators whom politicians of both parties would like to see continue in office. But such plans are not likely to be adopted in most states. State legislators are not inclined to cede their authority to draw district lines for House districts and, even more, their own. Most states do not have an initiative or referendum process that would allow voters to adopt such commissions.
Yes, our system of redistricting is not ideal and has some arguably negative effects on the political process. But this is not as great a problem as those commentators conservative and liberal suggest. It is something we can, perhaps a little uncomfortably, live with. So long as the courts continue to enforce the equal-population standard, the partisan mischief politicians can do will be limited; we do not need the courts to step in and decide which redistricting plans are too partisan.
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