Sabato's Crystal Ball

Why the Courts Punt on Gerrymandering

Bob Benenson, Guest Columnist January 5th, 2012

CHICAGO — It was predictable that Illinois Republicans would be outraged by the state’s new congressional district map, which the Democrats who control the redistricting levers in Springfield inflicted on them this summer. They were so angry, in fact, that they sued in federal district court to try to get the new lines overturned.

Yet the suit was rejected and the Illinois remap was upheld Dec. 15 by a three-judge panel, two of whom were Republican appointees of President Ronald Reagan in the 1980s and the other a Democratic appointee of President Bill Clinton.

And that outcome was just as predictable, based on the precedents set by the Supreme Court in previous partisan redistricting cases.

From the 1986 case of Davis v. Bandemer (involving state legislative redistricting in Indiana) to the past decade’s suits over congressional district lines — Vieth v. Jubelirer in Pennsylvania, League of United Latin American Citizens (LULAC) v. Perry in Texas — court rulings on partisan gerrymandering have reflected the judicial branch’s longstanding tendency to stay as far away as possible from the “political thicket” of redistricting.

In each of these previous cases — all of which involved Democrats trying to undo Republican-drawn plans — the Supreme Court left open the possibility that there could someday be a partisan gerrymander so egregious that it violates the afflicted party’s constitutional rights. But the court also made clear that the remaps before them did not meet their definition of unconstitutional partisan gerrymandering. In fact, as the ruling in the Illinois suit stated, no plaintiff has yet established a “workable standard” for what an egregious gerrymander exactly is.

The Texas Case: Minorities Matter

The lower-court outcome in Illinois could not have been more different than that in the Texas congressional redistricting case that comes before the Supreme Court for oral arguments on Jan. 9. The court is hearing an appeal by Texas Republicans of a Nov. 23 ruling by a federal district court panel in Austin, which found the state’s GOP-drawn remap unconstitutional and replaced it with a district map that is somewhat more favorable to the Democrats.

The fundamental difference between these two cases is that the suit against the Republicans’ Texas map centered on the issue of minority representation — in this instance, a claim, persuasive to the district court panel, that the map provided little opportunity for Hispanics to elect more of their own to the U.S. House, even though the group’s numbers increased by 42% over the decade leading up to the 2010 census and now make up about 38% of the state’s total population.

Since the landmark “one person, one vote” rulings and the enactment of the federal Voting Rights Act in the 1960s, racial redistricting — whether the issue is that district maps don’t go far enough to expand minority political rights, or go too far — has been one of only two grounds on which courts have overturned remaps enacted by states. The other is unequal populations among districts within a state.

“Beyond the equal population mandate, which most states have now figured out how to comply with, the Voting Rights Act is the only significant federal limitation on otherwise plenary state authority to draw districts, at least until the Court figures out whether partisan gerrymandering joins that list,” said Justin Levitt, an associate professor at Loyola Law School of Los Angeles and leading expert on redistricting law who publishes the “All About Redistricting” website.

Texas Republicans already pushed the envelope on gerrymandering with the controversial mid-decade redistricting plan they enacted in 2003, which made national headlines because Democratic legislators temporarily fled the state to stall action on the measure.

The Supreme Court, in the 2006 LULAC v. Perry decision, rejected the Democrats’ charge of unconstitutional partisan gerrymandering. But the justices showed they still have their eye out for minority political rights when they ruled that the Republican majority had reduced political opportunity for Hispanics by trimming their numbers in the state’s 23rd District (in an effort to improve the GOP’s chances of holding the seat) and required that it be redrawn.

That setback didn’t prevent Republicans, who again controlled the redistricting process this year, from trying to add to their dominance of the state’s House delegation (currently 23-9, with four more seats added thanks to the state’s rapid growth). That pretty much precluded creating new Hispanic majority districts, because most Hispanics who vote in Texas lean strongly Democratic.

But it also made a challenge to the Republican-enacted plan inevitable. Hispanic activists (with strong support from Democrats, not surprisingly) argued that the 2.8-million person increase in the state’s Hispanic population, or 65% of all population growth in Texas over the previous decade, entitled them to two of the four new seats. The district court agreed, and now the Supreme Court will decide the matter for good.

It is interesting that the Illinois Republicans tried to reinforce their claim of unfair partisan gerrymandering by also raising the racial redistricting issue. They argued that the Democratic plan overly packed Hispanics in the state’s one existing Hispanic-majority district, the Chicago-based 4th, while splitting up other Hispanic concentrations to improve the Democrats’ chances of winning seats.

The alternative offered by the Republicans (organized under the curiously named “Committee for a Fair and Balanced Map”) would have reduced the size of the Hispanic majority in the 4th District and drawn a 3rd District running from heavily Hispanic neighborhoods in the center of Chicago’s North Side west into some increasingly ethnically diverse suburbs.

But this proposed district, while containing a very slim Hispanic population majority, would have had a Hispanic voting-age population of less than 47%. And many voting-age Hispanics are either not citizens or are citizens who do not actively participate in the political process, reducing the group’s potential clout even further.

The district court panel was not sold on the Republicans’ argument that this new 3rd District would afford Hispanic voters with a serious opportunity to elect a candidate of their choice and ruled that the Republicans had not proved “by a preponderance of evidence that the state legislature intentionally discriminated against Latinos” when drawing the enacted map.

Situational ethics galore

The juxtaposition of the Illinois and Texas cases underscores something that is obvious to anyone with even a passing interest in redistricting, and is certainly known to the jurists who preside over these cases: The redistricting process is absolutely riddled with situational ethics. When viewed on a national scale, a  party’s complaints about getting screwed in any one state’s redistricting look grounded less in principle than whose ox is being gored in that particular instance.

It would, for example, be easier to take seriously the Illinois Republicans’ contention that they are looking out only for the political advancement of the state’s Hispanic residents if their GOP colleagues in Texas hadn’t gone so far to try to check Hispanic gains over the next decade that their remap was thrown out by the district court panel in Austin.

Looking strictly at the issue of partisan gerrymandering, the Democratic-drawn Illinois map does look pretty egregious if viewed in isolation. Even the judges who rejected the Illinois Republicans’ suit wrote in their ruling that the enacted map “was a blatant political move to increase the number of Democratic congressional seats.”

Illinois provided Democrats with their biggest redistricting save in the 2010 Republican “wave” election. Incumbent Gov. Pat Quinn’s narrow victory, combined with his party’s continued hold on both state legislative chambers, gave Illinois’ Democrats control of the remap that followed on the heels of the census population update.

They didn’t waste the opportunity, going all in to ensure that the 11-8 advantage in U.S. House seats currently held by the Republicans — the result of a four-seat turnover in the 2010 midterms — would be very short-lived.

Under the remap, a pair of Republican incumbents, 10-term veteran Donald Manzullo and freshman Adam Kinzinger in the redrawn 16th District, face a survival matchup in the March 20 primary.

Five others find themselves forced to run with greatly altered constituencies on more politically hostile turf. The following chart, using statistical analysis published by the DailyKos website, shows who they are; their current district number; their district under the new map; how much higher the 2008 presidential vote for Democrat Barack Obama is in these incumbents’ new districts than in their old ones; and what percentage of their current constituents these incumbents will carry over to their new districts:

Chart 1: Altered districts for GOP incumbents in Illinois


Source: DailyKos Elections, “Presidential Vote by Congressional District”

That’s a pretty harsh remap, no doubt. But the problem is that what the Democrats pulled off in Illinois is hardly unique.

In fact, because the 2010 elections gave Republicans control over redistricting in far more states than the Democrats, the GOP would have at least as much to lose, if not more, if the judiciary suddenly decided that the time was ripe to intervene in partisan gerrymandering. Republicans who controlled this decade’s process in North Carolina, Ohio and Pennsylvania (not to overlook Texas) went to lengths at least as exotic as those used by the Illinois Democrats to maximize their control over what used to be known as the “redistricting pen,” now the “redistricting mouse” in this age of digital map-making.

The Illinois GOP’s case wasn’t helped much by the actions of their own state party when the map was last redrawn a decade ago.

Then, Democratic control of the state legislature was checked by Republican Gov. George Ryan. So, to avoid a deadlock that would have left their parties’ redistricting fates up to the courts, a sweetheart deal protecting almost all of the state’s incumbents was negotiated by the deans of the congressional delegation: Republican J. Dennis Hastert, who also happened to be Speaker of the House, and Democrat William O. Lipinski.

Hastert signed off on a continuation of the unique shape of the Hispanic-majority 4th — known since its creation in the early 1990s as the “earmuff district” because it connects distinct pockets of Hispanic population on Chicago’s North and South sides with a thin band running around the perimeter of the neighboring, black-majority 7th District.

The approval of this design by Hastert and fellow Republicans a decade ago made it harder for today’s Illinois Republicans to argue that the similar shape in the new map was an unconstitutional attempt to pack Hispanics into a single district and prevent the drawing of another Hispanic-influence district.

And while the lines in the new Democratic-drawn map have a few interesting gyrations, there is nothing nearly as creative as the western 17th District that Hastert helped design for the map 10 years ago: a rambling inkblot that earned the nickname “Rabbit on a Skateboard.”

The fact is, for better or worse, the history of no-holds-barred political redistricting goes back to the nation’s earliest days — Elbridge Gerry, about whom the epithet “gerrymandering” arose, was governor of Massachusetts in the 1810s — and the courts’ reluctance to get tangled up in it goes back as far. To sum up, here’s what legal expert Levitt had to say about the unlikelihood that judges will change their approach on partisan gerrymandering anytime soon:

“Most seem to agree that ‘too much’ partisanship is unconstitutional. But there’s no agreement at all on what ‘too much’ means, substantively, and so there’s no agreement on what standard the courts should use to figure out whether there’s been too much. Indeed, I’m not even sure that there’s agreement on a single axis of measurement: Some parties (and some justices) seem to think that ‘too much’ is a measure of outcome, and some seem to think that ‘too much’ is a measure of process, and some may think that it’s both.  And with all of that up in the air, it doesn’t look like we’ll get a judicial ‘workable standard’ any time soon.”

Bob Benenson covered politics for 30 years at Congressional Quarterly in Washington, D.C., and headed CQ’s election coverage team as politics editor from 1998 to 2009. He is now freelancing and following the 2012 political scene from Chicago.