This month the U.S. Census Bureau will deliver reams of data, and states will begin to redraw legislative district lines. Brace yourself for a bacchanalia of self-dealing and partisan knife-fighting, much of it conducted behind closed doors in state capitals.
Should past practice prevail, the result will be legislative maps that protect incumbents, sometimes squeezing minority voters in the process. Politics might grow even more polarized.
Citizens can try to pry open an often-secret process. And they can look for help not only from judges, but also from unlikely suspects -- governors.
Gerrymandering is as old as the republic. In the very first election, none other than Patrick Henry drew district lines to try to keep James Madison from going to Congress. The term comes from an early Massachusetts governor, Elbridge Gerry, who drew a district shaped like a salamander. An editorial cartoon of the day dubbed the ungainly creature a “Gerrymander.”
In the early 1980s, legendary Democratic Congressman Phil Burton drew California’s plan sitting at Frank Fat’s Chinese restaurant in Sacramento. According to Juliet Eilperin’s 2006 book, “Fight Club Politics,” Burton used crude measures. Lots of Volvo registrations meant a yuppie Democratic district; lots of Buicks, a Republican one. In all, Democrats gained five seats. Burton wryly called the map “my contribution to modern art.”
But as with so much else, the process has grown more sophisticated, soulless and corroding. These days, party leaders and their fleets of consultants use computers and sophisticated software. They are able to slice districts with the precision of a sushi chef.
Usually, Democrats and Republicans crush each other if they can, squeezing out seats for their side. In 2003, Republican Tom DeLay, then the House majority leader, orchestrated a mid-decade gerrymander to help the Texas GOP. He is now prison-bound, having been found guilty of funding the move in part with illegal corporate funds. Nonetheless, it produced six new Republican congressmen.
Frequently, incumbents of both parties winkingly protect each other. New York University’s Samuel Issacharoff calls it a “political cartel.” In 2002, after that year’s redistricting, not a single California incumbent lost. Nationally more than 80 districts were essentially uncontested.
This time, the political field will likely tilt toward Republicans, because control shifted sharply in last fall’s election. Now 20 statehouses are controlled entirely (governor and legislature) by the GOP. Democrats control eleven. Many extra GOP seats may be baked into the Congress for a decade.
All this worsens hyper-partisanship. Political scientists note that when there is little competition between parties, challenges come from within parties. Like magnets, primary voters pull officials to the extremes. Compromise becomes ever more elusive.
Courts will play a limited role. Judges will enforce the Voting Rights Act, the 1965 landmark law designed to assure that minority citizens get full representation in legislatures. (Before that, racist legislators gave white rural districts extra seats.) Lawmakers must carefully make sure not to dilute minority rights. Skilled litigators like the NAACP Legal Defense Fund or Mexican American Legal Defense Fund stand ready to sue if they don’t.
Even in this highly charged environment, litigation won’t likely produce a more reasonable outcome. Judges generally are reluctant to strike down plans just because they are flagrantly partisan or unfair. DeLay’s Texas grab went before the U.S. Supreme Court, which agreed that the plan was designed just to benefit one party. But that wasn’t enough for the justices to find that it violated “one person, one vote” or the 14th Amendment’s due process clause.
If we don’t want the 2011 redistricting to make American politics even less responsive to actual communities, what can we do?
One answer is to take the power out of the hands of the elected politicians who stand to gain from the way the lines are drawn. Already, Alaska, Arizona, Idaho and Montana give the pen to independent commissions. These can yield better balance. Because of citizen referendums pressed by former Governor Arnold Schwarzenegger, California now will use a panel as well. But it is too late for other states to go this way this time.
Citizens and journalists can play a role, too. Columbia University law professor Nathaniel Persily has enlisted his classes of students to draw proposed maps, using widely available software. Journalists can use state freedom of information laws to pry open doors of secrecy. Recognizable communities should insist on representation.
But ultimately, elected officials have most power. Let me suggest one group that just might have more in mind than grubby partisan advantage. Governors must reach across party lines to achieve their policy goals. To govern, they must be seen as working above politics. And many, many of them look in the mirror and see a president when brushing their teeth.
Nobody wants to act nobly if it means helping the other side. But if governors of both parties say, together, “We won’t sign egregious gerrymanders,” nobody will feel the sucker. Governors can insist on reforms as the price for a signature. A national blue-ribbon panel, suggested by hedge fund manager Jonathan Soros, might help chief executives of both parties give a thumbs up or down on their plans.
So Democratic Governor Andrew Cuomo of New York, say howdy to Republican Rick Perry of Texas. Pat Quinn of Illinois, shake hands with Ohio Governor John Kasich. If you do, our politics might get a little less partisan, a little less dysfunctional, and a little more democratic. And the good deed would last a decade.
(Michael Waldman, former head speechwriter for President Bill Clinton, is executive director of the Brennan Center for Justice at New York University School of Law and the author of “My Fellow Americans.” The opinions expressed are his own.)
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