November 2012, Week 2


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Fri, 9 Nov 2012 23:14:30 -0500
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It’s Appalling That Gerrymandering Is Legal

And if the Supreme Court guts the Voting Rights Act, it’s going to get a lot worse.

By Emily Bazelon
Nov. 9, 2012

Gerrymandered congressional districts in Ohio
The maps are amazing: Ohio and Pennsylvania, states
that went blue for Barack Obama, have congressional
delegations that are heavily red. As David Weigel
pointed out Wednesday, the maps show how gerrymandering
saved the Republican majority in the House. (Even
though Obama won Pennsylvania by 5 points, Republicans
took eight of 12 House districts. In Ohio, Obama won by
two and the GOP kept 14 of 18 House seats.) It’s
outrageous. It’s also perfectly legal, and Democrats do
it too, when given the chance—just ask the Republicans
in Illinois. Gerrymandering is an American game both
parties play because the courts allow it and the voters
don’t punish them for it.

On Friday, the Supreme Court agreed to hear a challenge
to the Voting Rights Act, the only real bulwark against
gerrymandering still standing. With the election over,
it was inevitable that such a case would move onto the
court’s docket. That doesn’t make it good news.
As Robert Draper pointed out in a big piece for the
Atlantic in October, the first gerrymander lover was
Patrick Henry in 1788. Fast forward to 1962, when the
Supreme Court addressed a related but different
problem: The lopsided size of the congressional
districts in states like Texas, which allowed one
legislator to represent 200,000 people while his
colleague next door represented 900,000. The court said
no to this kind of line drawing, enshrining the
principle of “one person, one vote.” Then in 1986, the
court also ruled Davis v. Bandemer that drawing lines
for the sake of partisan advantage was
unconstitutional. The opponents of a political map
would have to show “continued frustration of the will
of a majority of voters or effective denial of a
minority of voters of a fair chance to influence the
political process.”

That sounds lovely but went nowhere. As Columbia law
professor Nathaniel Persily pointed out when I called
him, ever since that 1986 decision “claims of partisan
gerrymandering have always been brought up but they
never win.” Not in federal elections, anyway. In a
fractured 2004 decision, the Supreme Court upheld a
gerrymander in Pennsylvania by Republicans that looks a
lot like the one that produced this year’s crazy map.
Four conservatives on the court said that gerrymander
claims weren’t the concern of the courts at all. The
fifth, Justice Anthony Kennedy, said that in theory
somebody somewhere could come up with a legitimate
theory for challenging partisan gerrymandering, but so
far, he couldn’t see it. Two years later, the court let
Texas keep a statewide gerrymandered map, too. As
Persily says, “if the facts in those two cases weren’t
egregious enough, it’s hard to see a set of facts” that
would be, from the court’s point of view.

That’s the legal backdrop for the safe districts
Republicans have drawn for themselves since the
statehouse gains they made in 2010—which, happily for
them, was also a giant redistricting year because it
followed the latest census. Take a look at this map: It
shows that Republicans control the legislature and the
governor’s office in 18 states, including Wisconsin,
Ohio, Pennsylvania, Virginia, Florida, and North
Carolina. The Democrats have the same hold on only six
states. In the others, power is divided or commissions
draw the districts. The upshot, in light of population
distribution, Persily said, is that Democrats control
44 congressional seats and 885 state legislative seats,
while Republicans control 210 congressional seats and
2,498 state legislative seats. No wonder the House
stayed safely in Republican hands even though the
presidency and the Senate did not. According to a
Washington Post analysis, it is likely that the GOP
will hold a 35-seat majority, even though the Democrats
running for the House edged out their opponents,
collectively, in the popular vote.
The only real constraint on the parties at this point
is the Voting Rights Act, which Congress last renewed
for 25 years in 2006. (President George W. Bush signed
that bill—this is, after all, one of the nation’s most
important civil rights laws.) Two provisions matter:
Section 5, which forces states with a history of
segregation to “preclear” their line-drawing plans with
the Department of Justice or go to court, and Section
2, which allows the Justice Department (and regular
people) to challenge districting plans if they dilute
the voting power of racial minorities. In the 1990s,
the Voting Rights Act prevented the Democrats from
getting too greedy about gerrymandering, because the
Justice Department used its power to push for majority-
minority districts, which sent many black and Latino
lawmakers to Congress, but also left safe seats for
Republicans. After the 2010 election, Yale law
professor Heather Gerken predicted that the Voting
Rights Act would modestly constrain Republicans in this
last redistricting cycle, and Persily says that’s about
right—it could have gone down even worse for the
Democrats if the GOP hadn’t been checked by the
directive to protect in some way the power of minority
votes. The state that had the attention-grabbing legal
battle was Texas, which managed to take population
growth that was largely Hispanic and black and create
four new congressional districts full of Republican
voters. As the plan bounced all over the courts, the
map mostly stayed in place for 2012.
Texas may have to draw the lines again in 2014, but
that depends on the Supreme Court. The case the
justices agreed to hear later this term comes from
Shelby County, Ala. Post election, the backdrop will be
the increasing muscle of Latino and black voters
nationwide, with all the demographic evidence of how
they helped boost President Obama back into office.

But let’s not forget who draws the lines for
redistricting—state lawmakers (and in a few states,
commissions appointed by the states). These legislators
are often chosen in midterm and off-year elections in
which the composition of the electorate has tended to
be older and whiter than in presidential election
years. That helps explain why the Democrats took a
beating in 2010. The lesson is that midterm elections
can have big consequences. If Democrats ever want to
win back the House, they have to get their people to
the polls in the off years. And if the Supreme Court
guts the Voting Rights Act, it will be more important
than ever.


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