The Redistricting Wars
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.