Gerrymandering for Position in 2002

When Indiana Democrat Tim Roemer announced recently that he would retire from the House of Representatives at the end of this session of Congress, the officially cited reason was that he wanted to spend more time with his family. That's no doubt true. But it is surely also the case that Roemer didn't want to lose--as he most likely would have had he chosen to vie for re-election. Every 10 years, after the U.S. Census Bureau completes its tabulation of the country's inhabitants, congressional seats are reapportioned to reflect the state-by-state distribution of the population. Indiana's population has declined relative to other states' since 1990, so that when congressional lines are redrawn this year, the Hoosier State will lose a seat. Most experts predict that Roemer's South Bend district, which he carried last year by only 4 percent, will be expanded to include more conservative voters, making it much more difficult for the three-term Democrat to win re-election.

Roemer is the first congressman to bow out this session, but he won't be the last. Before the most recent round of redistricting in 1991, 65 House members chose to retire or seek another office. An additional 18 were forced to run against one another. With so many open seats and Congress so evenly divided, the stakes in this year's redistricting battle are higher than ever. In fact, control of Congress in 2002 could hinge on which party deals most deftly with redistricting--and on how state legislatures and the courts handle the disputes that will inevitably arise.

When congressional seats were reapportioned on December 28 to reflect the 2000 Census, eight states in the South and West gained a total of 12 new seats while 10 northeastern and midwestern states (along with Oklahoma and Mississippi) lost a corresponding number. As a result, says Virginia representative Tom Davis, chairman of the National Republican Congressional Committee, "Republicans will pick up 10 to 14 seats, net, in the House." Noting that the states gaining seats tend to be conservative (and therefore likely to send new Republicans to Congress), and that the party holds many more governorships and state legislatures (which is where most of the new congressional districts actually get redrawn) than it did 10 years ago, many Republicans insist that redistricting has made a GOP electoral bonanza inevitable.

It's not. It may even be that the population shift represents good news for Democrats: In six of the eight states adding seats, Hispanics--who voted two-to-one Democratic in the last election--accounted for most of the growth. "As far as winning back the House, [redistricting] means there are a whole lot more seats in play than there were two years ago," said one Democratic House strategist. "That's good for Democrats, especially going into a midterm election with a new Republican president." Nonpartisan experts tend to say it is too early to predict who will benefit from redistricting. "It's a wash in terms of where the votes are," said Mark Rush, a professor of politics at Washington and Lee University who studies redistricting. "It's not as if there is a reservoir of spare Republican voters looking to be farmed into the new congressional districts. There's still a Democratic majority out there."

It's true that Republicans are in a far better position than they were during the previous redistricting. In 1991 Republicans controlled both the governorship and the legislature in only two states, Utah and New Hampshire, which gave them effective oversight of only five congressional seats during redistricting. This year, in contrast, the GOP has possession of eight state legislatures, which--translated into congressional districts--gives Republicans effective control over 98 redistricted seats. Moreover, during the last decade Democrats have become more concentrated than ever in urban areas. This leaves them susceptible to political gerrymandering: Republicans can try to "pack" geographically concentrated Democrats into select congressional districts, leaving the surrounding districts more heavily conservative.

But the Republican gains since 1991 have brought them only to parity with the Democrats. In 2000 the electorate split the vote for the nation's 6,000 state candidates practically in half, leaving Republicans in control of eight state governments, Democrats in control of seven, and the two parties in divided control of the remaining 35. Translated into congressional seats subject to redistricting, this means that the Democrats control 101, the Republicans control 98, the two parties share control of 188, and independent commissions are in charge of 41 more. Judging by these numbers, redistricting will be as closely contested as the presidency.

A party's goal in redistricting is to draw boundaries that best serve its electoral interests. Both parties will try to emulate what Texas Democrats accomplished during the last round of redistricting--what one expert calls "the great partisan gerrymander of '91." The Democrats who controlled the legislature drew conservative districts around eight Republican incumbents. By packing conservatives into already heavily Republican districts, Democrats were able to win 21 of the 22 remaining seats.

Conversely, both parties will try to avoid the Georgia Democrats' debacle of that same year. Before redistricting, Georgia's 10-member delegation had just one Republican. But the Democrats were intent on redrawing his district to include more Democrats. Not only did they fail to oust the GOP incumbent (a guy by the name of Newt Gingrich); they overreached to the point that, today, eight of the state's 11 delegates are Republican. Democrats today attribute that outcome to carelessness. "Ten years ago, it never occurred to anyone that we might not be in the majority," said a Democratic strategist. "Now, the stakes are very high and very clear to all of us."

While neither party has a clear-cut advantage in the overall battle for seats, the fact that Republicans have drawn even with Democrats at the state level means that they'll have considerable opportunity to target veteran Democrats through redistricting. Among those considered most vulnerable are Lane Evans of Illinois, Sander Levin of Michigan, Martin Frost of Texas, and House Minority Whip David Bonior, who is contemplating a run for governor of Michigan.

Democrats stand to lose seats in states--such as Pennsylvania, Ohio, and Michigan--that are shedding congressional districts and are controlled by Republicans. They also face losses in states that have heavily Democratic delegations but only partial possession of state government, because split control makes partisan gerrymandering more difficult and tends to result in delegations that more accurately reflect the party composition of a state's electorate.

Democrats can expect to gain seats in states where they control the legislature--such as California, Georgia, Mississippi, and North Carolina. They'll also fare better in states with split control and heavily Republican delegations, like Georgia. And there is a good chance that Democrats can achieve partial victories in states such as Florida and Arizona. Florida's delegation currently consists of eight Democrats and 15 Republicans, with two new seats on the way. Because Florida's voters are split between the parties (as the 2000 election amply demonstrated), it will be nearly impossible for Republican leaders to prevent at least one new seat from going Democratic and some of the existing Republican-held seats from becoming more competitive. The Arizona delegation, meanwhile, consists of five Republicans and a single Democrat. Even though the state has a Republican governor and legislature and is gaining two seats, a nonpartisan committee handles redistricting there and should draw the lines in a way that yields at least one more Democratic seat--especially because with an influx of Hispanics and younger voters, Arizona is becoming more evenly split between the two parties. (In fact, because Arizona is one-third Hispanic but doesn't have a single Hispanic representative, a case could be made under the Voting Rights Act of 1965 that the group is being disenfranchised. The likely remedy would be the creation of a heavily Hispanic district in Phoenix or Tucson, which would presumably vote Democratic.)

The wild card in the redistricting battle will be the courts. Most of the states losing seats (Illinois, Mississippi, New York) have significant minority populations, while most of the states gaining seats (Arizona, California, Texas) attribute their growth to an increase in minorities. This is significant because the Voting Rights Act requires states with a history of discrimination against minority voters to use race as a factor when drawing congressional districts. In the past, courts have interpreted this to mean that a minority district must be drawn whenever possible to protect minority voting strength. To ensure that this standard is met, the Voting Rights Act requires all or parts of 16 states to "preclear" their redistricting maps with the Justice Department or the U.S. District Court in Washington, D.C.

But in 1993, in Reno v. Shaw, the Supreme Court determined that relying too heavily on race in drawing district lines violated the equal protection clause of the 14th Amendment. In 2000, in Reno v. Bossier Parish School Board, the Court reaffirmed that changes to minority districts could not lead to retrogression--but lowered the hurdle for getting preclearance, making it easier for states to draw districts that don't take into account minority voting strength and making it harder to create new minority districts. "The Supreme Court's decisions in this area have been very murky," said Gerry Hebert, general counsel for IMPAC 2000, the Democrats' national redistricting project. "But race is still going to be an important factor."

In truth, the new limit on race as a factor in redistricting may actually benefit Democrats. During the administration of Bush's father, the attorney general used the Voting Rights Act to justify allowing Republican-controlled states to pack minorities into a small number of districts, thereby diluting Democratic voting strength in surrounding areas. In calling for minority districts, the Republican Justice Department could cynically claim to be obeying the Voting Rights Act--when in fact it was doing the opposite. Now that the Court has limited the ability of states to take race into consideration, John Ashcroft's Justice Department will have a harder time employing this tactic.

With control of Congress hanging in the balance, the courts will undoubtedly have a larger role in redistricting than ever before. "Ten years ago, 41 states wound up in litigation," notes a Republican national redistricting expert. "A lot of attorneys out there would like to go 50 for 50 next year." Redistricting lawsuits are already under way in Texas, Utah, and North Carolina. And for the first time, the national parties will get involved in a process that is traditionally left to state lawmakers: The Democratic and Republican National Committees plan to devote millions of dollars to legal battles over redistricting. The Supreme Court is divided over redistricting.

Four justices--John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--have made it clear that they oppose the Shaw doctrine's limitation on the use of race. The five justices in the majority tend to support the limitation, but for varying reasons. Justice Sandra Day O'Connor agrees with the liberal justices that race can be a principal factor, yet she also believes that in order to be constitutional the legislative response must be narrowly tailored; that is, districts can take race into account, but they must still be drawn compactly. The two most conservative jurists, Clarence Thomas and Antonin Scalia, oppose any consideration of race as a factor. (Ominously, the breakdown of justices mirrors Bush v. Gore.) The swing vote appears to lie, as so often happens, with O'Connor. Whichever way the Court decides, critical questions about redistricting are likely to be decided by a five-to-four vote.

In light of all this, neither party can afford to be confident about the effects of redistricting at this point. "They'll gain some seats, we'll gain some seats, and we'll end up pretty close," Hebert predicts. But an increasingly likely scenario is this one: Control of Congress could be decided like the presidential election--in court.