GREAT THE ELECTION GRAB
by JEFFREY TOOBIN
When does gerrymandering become a threat to democracy?
Issue of 2003-12-08
Posted 2003-12-01
With his West Texas twang, loping swagger, and ever-present cowboy boots, Charlie
Stenholm doesnt much look like or sound like anybodys 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 states 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 states 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 couldnt afford to fight this much
about redistricting. Given the opportunity, that is all they will do, because its their
survival at stake. DeLays 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 states delegation to 22-10 in favor of the Republicans.
Politics is a contact sport, Stenholm said. Ive 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 isnt just ossified; its 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 courts 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 groups voters in the fewest possible districts, so
they cannot influence the outcome of races in others; cracking divides a groups 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 couldnt 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 thats 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 didnt occur. Mascara had met me at a McDonalds in
Charlerois 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. DeLays 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. Johnsons 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. Thats 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 in 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 cant 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 cant help but express a perverse admiration for
the of cleverness 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 DeLays people used to redistrict, Persily said. Indeed, DeLays political
operation purchased ten copies of the software, which is called Calipers 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.
Theres only one limit to the kind of information you can use in redistricting its
availability, Persily said. (In Pennsylvania, Republicans used Carnegie-Mellon
Universitys 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. Thats a big change from ten years ago. We have
become very good at predicting how people are going to vote. Peoples 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 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. Thats 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 companys 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 its 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.
Thats 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 its 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 Weve
got to appeal to our base. Its 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 decisionmaking process.
Scholarly research gives some support to Leachs 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 dont have to worry about electability.
Its 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 thats why these people vote for me. There shouldnt be
a penalty for reaching out across party lines. If Stenholm and his ilk disappear, they will
be replaced by reliable Republicans who wont have to worry about their own chances
for reelection.
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 nineteeneighties. 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 States 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 theres no such thing as a nonpartisan solution. Justice Sandra Day
OConnor, 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 Brennans notes of the courts internal debate, OConnor
said that any legislative leader who failed to protect his partys 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 its time to get back in the process.
The best argument for Republicans in the Pennsylvania case, it seems, is that its simply
not the courts 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. Its 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 cant 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 Courts 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 cant draw
ugly districts if its purely for race, Sam Hirsch, one of the lawyers for the Pennsylvania
Democrats, said. The rule should be, You cant draw ugly districts if its purely for
politics, either. But Hirschs 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 its 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 DeLaylike 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 Iowas 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 nations 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 didnt 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. Im through, Im done,
out of politics, he said. It wont affect me one way or the other. But the system is now
totally out of whack, and that matters to a lot of people. Its not about me, its about
power on a national scale.