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Drawing voters back into the electoral process: why and how.

INTRODUCTION

Redistricting is required to ensure equal representation under the law, but the irony is the current process itself is leading to the destruction of a representative government. There is an enormous amount of energy and money that goes into the redistricting process every ten years--and sometimes more frequently--which serves no larger purpose than to give advantage to one party over another.

Gerrymandering is nearly as old as our republic. The name, of course, comes from Elbridge Gerry, who was a signer of the Declaration of Independence, Governor of Massachusetts, and Vice President. While the names of the political parties have changed over time, the purpose of gerrymandering is still the same: to politically engineer districts to have a better chance of producing a partisan advantage.

Fifty years ago a new chapter in redistricting opened, coincidentally, in Shelby County, Tennessee, which was a part of the congressional district we served (Tanner as an eleven-term representative, and Ford and Dinkler as senior aides). In 1962, the U.S. Supreme Court rendered its decision in the case of Baker v. Carr. (1) At the time of the suit, the Tennessee General Assembly had failed to redraw legislative maps since the 1901 census. Over that time, the population of Tennessee had grown and shifted. The plaintiff, Charles Baker, who served as an elected official in the Shelby County (Memphis) government, argued that citizens in his county were denied their equal protection rights guaranteed by the U.S. Constitution. In its ruling, the Court found that redistricting was a justiciable issue to which the plaintiffs were entitled to relief.

Baker v. Carr and subsequent Supreme Court decisions set the "one person, one vote" standard, which constitutionally required regular redistricting of state legislative and congressional districts. (2) The responsibility for redistricting, however, remained with the elected officials, who were free to collude with or strong-arm their political opponents to draw favorable districts.

In 2003, Republicans in Texas used a new-found legislative majority to redraw that state's congressional map, an action that in mid-decade was initiated not by new census numbers but to achieve a purely partisan purpose. The new map resulted in four out of five targeted Democrats losing their seats in the U.S. House of Representatives. (3) Legal challenges to this map were almost entirely unsuccessful, (4) and as a result it now stands that state legislatures have wide latitude to redraw their legislative and congressional maps to achieve a purely partisan objective at any time. (5)

I. NEW LEVELS OF POLARIZATION

The result of these abuses is an increasingly polarized House of Representatives, where members--well-intentioned public servants as they may be--pledge allegiance to party first. Members of Congress act increasingly like European Members of Parliament, handing over their voting cards to party leadership on all but the most controversial of votes. Advances in technology allow political insiders to surgically slice and dice districts to satisfy the "one person, one vote" requirement, while engineering elections that can be decided in a party primary.

In the 111th Congress (2009-2010), when we authors most recently worked together, only 91 of 435 House districts were within a 4-point margin of error of a 50/50 voting pattern. (6) In other words, 344 districts were drawn to so heavily favor one party or another that there was little question as to which party would win the general election. With a few exceptions (including Tennessee's 8th District, which is ranked R+8), there was little question as to which party's candidate would win the November election.

When general election victory is all but assured, Members of Congress know their only real threat will come in a party primary, and they find themselves paralyzed, unable to work with their colleagues across the aisle.

In 2008, during the 110th Congress, for example, the Democratic-led House was considering a supplemental spending bill to fund the war in Iraq and to provide additional GI Bill benefits for women and men returning home from Iraq and Afghanistan. (7) The Blue Dog Coalition of moderate-to-conservative Democrats (of which one of the authors, Tanner, is a founding member) felt that such a benefit was an important priority for the country but that they should also adhere to the House's "pay as you go" rules instead of requiring additional borrowed money. The provision should have been uncontroversial, garnering easy support among those who talk endlessly about supporting our troops and lowering our national debt, views shared by most in both parties inside and outside the Beltway. But many in the House Republican Conference refused to pay for the provision because it would have raised taxes by $500 on those making more than $1 million annually. Privately, some House Republicans admitted they agreed with the Blue Dog position that national priorities should be paid for and that those who have the most should be willing to help provide for those who gave the most to their country. These members were unable to vote their conscience, however, because they feared an intraparty challenge painting them as out-of-control tax-raisers, putting them at danger of losing their party's primary.

The Club for Growth, an influential, conservative, anti-tax organization headed at that time by now-Senator Pat Toomey (R-PA), targeted this vote in its annual scorecard of Members of Congress. (8) In describing this key vote, the Club for Growth's scorecard states that "[t]he pro-growth vote was 'nay' be cause higher marginal income tax rates greatly harm economic growm." (9) Grover Norquist's Americans for Tax Reform, another group critical to the viability of members in conservative Congressional districts, took a similar view of this legislation. A press release explaining the position stated:
   [T]he Democrat majority in the House included a $54 billion
   marginal income tax increase to pay for extra education subsidies
   for veterans. This would have been the first marginal income tax
   rate increase since 1993. ATR urged Members of Congress to oppose
   this tax hike. For those signing the no-new-taxes pledge,
   supporting this bill would have meant breaking their word. (10)


Earlier that year, in fact, Representative Wayne Gilchrest of Maryland had been defeated in the Republican Party primary, largely because he was deemed too moderate by conservative groups, including the anti-tax Club for Growth. (11) Gilchrest had one of the most moderate voting records in the Republican Conference and was especially outspoken on fighting climate change and cleaning up the Chesapeake Bay. Gilchrest was vulnerable to a primary attack because his district was drawn to pack Republican voters, favored a Republican candidate by 13 points, (12) and he refused to toe the party line.

After losing the primary to conservative Andy Harris, Gilchrest endorsed moderate Democrat Frank Kratovil and said, "We're in this bad place as a country because of the evangelicals, the neocons, the nasty, bitter and mean... very clever ideological groups that use money, technology, fear and bigotry to lead people around." (13) Kratovil went on to win the 2008 election by only a very slim margin despite huge enthusiasm for then-Senator Barack Obama in Maryland and the endorsement of the sitting Republican Congressman. Kratovil was unseated by Harris, who once again had far-right-wing support, two years later as the district reverted back to the Republican district it was designed to be. (14)

From Maryland's first district, one need only cross the Chesapeake Bay to the fourth district for proof that the threat to the political center is coming from both sides. The same day Gilchrest was rejected by Republican primary voters, Representative Al Wynn, whose seat favored a Democratic candidate by 31 (15) points, lost his primary to Donna Edwards, "as voters backed her liberal insurgency against one of the state's longest-serving congressmen." (16)

Wynn had barely survived a primary from Edwards in 2006 and was largely seen as too moderate for his left-leaning district, in its endorsement of Edwards, The Washington Post concluded, "We're all for bipartisanship, but in Mr. Wynn's case, too often his stances have been unthinking and out of step with his district's interests." (17) The editorial went on to cite Wynn's support of estate tax repeal, a constitutional amendment to prohibit burning of the American flag, legislation to "permit federal courts to intervene in the Terri Schiavo case," and his opposition to fuel-efficiency standards and campaign finance reforms. (18) Groups opposed to the war in Iraq were also upset over Wynn's 2002 vote to authorize the use of force in Iraq. (19)

According to the editorial cited above, Wynn failed the test of political purity and as a result lost his seat. An article previewing the Wynn-Edwards primary alluded to the gerrymandering of the district and Wynn's failure to meet the liberal voting bases' expectations:
   The oddly shaped district stretches from northern Montgomery ...
   through much of central and southern Prince George's. Two-thirds of
   voters live in Prince George's, but the district gained more
   Montgomery voters when congressional boundaries were redrawn in
   2001, part of a Democratic bid, ultimately successful, to unseat
   U.S. Rep. Constance A. Morella (R).

   That shift "changed the political dynamic," said Ron Walters,
   political science professor at the University of Maryland, in ways
   Wynn may not have immediately grasped. "It's a fairly significantly
   progressive area, and it was very dangerous to not tend to it very
   well," he said. "That's where [Edwards] has caught on." (20)


As in every congressional campaign, the rhetoric focused not just on policy but other factors as well, including personal character. Still, The Washington Post reported the day after Maryland's 2008 primaries that "voters seeking change united with ideological activists in both parties who wanted to punish congressmen thought to have strayed from party principles." (21)

Primary elections are, of course, an important part of a two-party republic, and a primary loss is not always the result of gerrymandering. However, districts designed with party performance in mind risk making primaries wholesale replacements for general elections. While the interests of a political party and those of a congressional district are not necessarily mutually exclusive, politically-gerrymandered districts threaten to hold elected officials and candidates to the litmus test of ideological groups who put philosophical purity before all else. Members of Congress scared to compromise or even acknowledge the validity of an argument from a member of the other party produce the Washington gridlock that we not only all detest but is, in our opinion, contrary to our system of republican government.

II. MAKING ELECTIONS FAIR AND INDEPENDENT

In the 109th, 110th, and 111th Congresses, we introduced legislation very straightforward in its purpose: to prevent state legislatures from redistricting outside of the decennial census and require them to draw congressional districts via an independent commission bound by simple, yet important standards. (22) The authority for this legislation was rooted in Article I, Section 4 of the U.S. Constitution, which allows Congress to pass legislation regulating the time, place, and manner of elections to the U.S. House of Representatives. (23) A memo from the Congressional Research Service's American Law Division exploring congressional authority to govern redistricting of congressional districts concluded:
   Article I, Section 4 of the Constitution expressly provides
   Congress with the power to enact laws governing the time, place,
   and manner of elections for Members of the House of
   Representatives. This express grant of power would appear to permit
   Congress to limit the number of times states can conduct
   congressional districting and prescribe how such districting is
   conducted. (24)


The "Fairness and Independence in Redistricting Act," 25 as it came to be called, began by asserting this authority, preventing mid-decade redistricting and requiring that states conduct redistricting through an independent commission. Our goal was to set certain minimum standards for each state that would be meaningful and effective without being overly prescriptive. The bill recognizes and borrows from the good reform efforts made by a number of states that have passed laws insulating this important process from pure partisan advantage.

When drafting this legislation, we were careful not to negate some of the very positive redistricting reform efforts at the state level. However, Members of Congress are elected to a federal legislature; the Constitution requires that elections to the House take place every two years and that Members of Congress meet certain fundamental requirements. (26) At the core of our legislation we contend that the districts from which those members are elected should also have certain minimum standards. Importantly, the bill does not change the way states draw lines for elected offices under their jurisdiction. To the best of our ability, we aimed to set certain minimum standards needed to ensure a level of fairness, while allowing the states to modify the bill's mandated commission or requirements.

With this in mind, the legislation requires that the independent commission in each state be comprised of a minimum of five members: two appointed by the majority party in the upper and lower houses of the state legislature, two appointed by the minority party in the upper and lower houses of the state legislature, (27) and one chair elected by the appointed members. To be eligible to serve on the commission, members must be registered voters of the state; cannot have held elective office, run for elective office or served as an employee for a political party or candidate in the past four years; and certify that they will not be a candidate for the U.S. House until after the next round of redistricting.

Other reform efforts have approached the question of political party involvement in map drawing in different ways. Iowa, for example, removes politicians from the drafting process by handing it over to a non-partisan technical agency. (28) California's Citizen Redistricting Commission is comprised of three registered Democrats, three registered Republicans and two individuals with another or no party affiliation, vetted through a number of processes and eventually selected at random from a pool of approved applicants. (29)

In drafting our legislation, we felt that it was important to keep the elected legislatures closely involved in the process while taking away the ability and incentive to use redistricting as a partisan power grab. Some defenders of the current system, where the majority party in a state legislature can use its numerical advantage to protect or expand its influence, say that electoral majorities essentially legitimize gerrymandering. They suppose that voters know the consequences of elections and that a majority provides a mandate to draw districts the way the election winners see fit. Our legislation rejects this argument by empowering legislative minority parties. Our legislation contends that party advantage cannot be the only or most important factor in deciding how new congressional districts will look. By mitigating party and personal political influence, our bill requires cartographers drawing districts to look at other factors: compactness, contiguity, and community continuity.

The commission is required to draw a map that meets certain standards. Districts must adhere to the "one person, one vote" standard; ensure, to the greatest extent possible, equal population among the districts; comply with the Voting Rights Act; and attempt to maintain geographic continuity, compactness, and contiguousness. Commissioners are prohibited from considering the voting history of a district, party affiliation of the population, or the residence of incumbents. Meetings of the commission must be held in public and comments from citizens must be considered in drafting the map.

Once approved by a majority of commissioners, the proposed new map must be made available to the public. It is then presented to the state legislature, where each house can either accept the map without amendment or reject it; if approved, the map is presented to the governor for approval or veto. A map must be approved by the beginning of November the year before the next federal election.

Should the commission not agree on a new map, or should the commission's map fail to gain approval from the legislature and governor by November of the year before the federal election, the task of redistricting will be passed along to the highest court in the state. The state court will have until December to approve a map that adheres to the bill's standards or the task will be handed over to the U.S. District Court of jurisdiction.

Recognizing the financial impact of this new mandate, the legislation contains an authorization of $150,000 per district per state to support the redistricting process.

III. OBSTACLES TO REFORM

It would be cynical and disingenuous to condemn all politicians for a bad system. Most Members of Congress are honest, hard-working individuals who have chosen to work in public service and do a commendable job representing their constituents. Our nation's electoral process was designed to reward such service. But human nature in general and the cut-throat world of partisan politics specifically lead many to embrace the incentives inherent in the status quo, which is precisely why we propose removing politicians from the process as described above.

When the bill was first introduced in 2005, it was assigned to the House Committee on the Judiciary, chaired by then-Rep. James Sensenbrenner (R-WI). Fifteen years prior, when he was in the minority party, Sensenbrenner had authored "Congressional Districting Reform Act of 1989," (31) which also argued for redistricting reform through the creation of independent commissions established almost exactly through the manner we propose. We and others wrote to Chairman Sensenbrenner to note the commonalities between the new bill and his earlier position and request a hearing, but our calls went unanswered. Rep. John Conyers (D-MI), who became Chairman of the Judiciary Committee in 2007, and Rep. Lamar Smith (R-TX), the current Chairman, have both also declined to convene a hearing on redistricting reform.

They are hardly alone in their coolness to the issue. Party leaders and rank-and-file House Members of both parties have publicly brushed off questions about the bill, citing the states' rights and Voting Rights Act concerns addressed above. Others express concerns over the bill's constitutionality, despite the clearly stated authority defined in Article I, Section 4 of the Constitution.

Unsurprisingly, many members and their staffs are more candid in private. Some realize an independent process would result in their being drawn out of their own districts. Some feel a reformed process would tilt the party balance of their state's delegation. Some worry their support of the bill would offend state legislators who may support them, plan to run against them or still have the power to retaliate with unfavorable district lines. Others simply say their support for the bill would displease their party's leaders. This underscores the most crucial challenge facing reform prospects: those with power to enact reforms are the biggest beneficiaries--and often, the product--of the current process.

Another enabling factor is the apathy the overwhelming majority of Americans feel toward an unexciting issue such as redistricting, a disinterest that is extended, then, to the abuses in the process. Even engaged citizens who may understand the impact of gerrymandering can quickly realize their participation feels useless when the outcome is pre-determined, leading them to disengage as well.

We should be clear that redistricting reform is not a panacea for our nation's political problems. Imposing a new regime on the way states draw Congressional lines is bound to result in anticipated and unforeseen problems or issues. It will not result in 435 Congressional districts that are truly competitive every two years, but will likely mean more turnover. More turnover will mean the potential loss of seniority, a valuable commodity in Congress, for certain districts. Reform is not a perfect solution, but we believe that introducing more competition and uncertainty to the election process can help break the current logjam that results when Members of Congress retreat to their respective political corners.

CONCLUSION: THE POSSIBILITY FOR REFORM

Advocacy organizations from across the political spectrum, including more than a dozen who have joined forces to form Americans for Redistricting Reform, (32) led by the Campaign Legal Center, understand that a fair redistricting process is key to a more responsive government. It is our hope they will continue their efforts to bring attention to this issue among interested citizens and encourage meaningful reform at the national level. That is not enough, though. For reform efforts to be successful, the voters themselves need to be vocal if they want to regain their say in who represents them in Washington. Voters can and should use phone calls, e-mails, and participation in public events to explain to elected officials at all levels of government why they follow an issue as consequential as redistricting and want the process to be open, transparent, and fair. Encouragingly, some states have embraced redistricting reform; states have little incentive to enact such changes individually, however, if it means their own congressional districts are more competitive while other states harbor their safe-seat incumbents, allowing those long-time members to gain a disproportionate level of influence in Washington.

Another option might be for citizens drawn out of the general electoral process by politicians with partisan pens to file a legal claim on the basis that they have been denied due process and equal representation. Although the judicial branch has sent mixed signals about its willingness to weigh in on redistricting matters, many of us feel it is important that the courts, including the Supreme Court, carefully consider how decades of gerrymandering have led to the growing present-day threat to our representative democracy.

The gridlock in our nation's capital doesn't have to exist. For purely partisan reasons, the Congress is becoming unable to act in a bipartisan manner for the greater good of our republic. Meanwhile, Rome burns.

(1.) Baker v. Carr, 369 U.S. 186 (1962).

(2.) Id.; Burns v. Richardson, 384 U.S. 73 (1966); Reynolds v. Sims, 377 U.S. 533 (1964).

(3.) Republicans Take Four of Five Targeted Democratic Seats, USAToDAY.COM (Nov. 3, 2004), www.usatoday.com/news/politicselections/vote2004/2004-11-02-tx-ushouse -redistricting_x.htm.

(4.) See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (holding that a mid-decade redistricting that is solely motivated by partisan considerations does not contravene the one person, one vote requirement, and affirming that because the plaintiffs failed to demonstrate a "legally impermissible use of political classifications" in the redrawing of Texas's congressional districts, the mid-decade redistricting did not violate the Equal Protection Clause).

(5.) See id. at 414-15 (explaining that Sections 2 and 4 of Article I of the U.S. Constitution give "'the States primary responsibility for apportionment of their federal congressional ... districts'"(citing Growe v. Emison, 507 U.S. 25, 34 (1993))).

(6.) See Cook Partisan Voting Index for the 111th Congress, COOK POLITICAL REPORT (April 9, 2009), http://cookpolitical.com/node/4201 [hereinafter Partisan Voting Index]. The Partisan Voting Index provides the underlying information on which we based our own analysis.

(7.) H.R. Res. 2642, 110th Cong. (2008) (enacted).

(8.) See 2008 Congressional Scorecard (House Scorecard), CLUB FOR GROWTH, http://www.clubforgrowth.org/assets/files/CongressionalScorecard/ 2008_HouseScorecard .pdf (last visited Apr. 10, 2012) (labeling this as "House Vote 330" and titling it "Increase Tax Surtax, Spending Increase").

(9.) See 2008 House Vote 333 Income Tax Surtax, Spending Increase, CLUB FOR GROWTH, http://www.clubforgrowth.org/projects/?subSec=13&id=642#votes (last visited May 10, 2012).

(10.) Checking the Facts This Election: "Blue Dog" Democrat Bill Was' a Tax Increase, AMS. FOR TAX REFORM (Oct. 14, 2008), http://www.atr.org/ checking-facts-electionblue-dog-democrat-a2191.

(11.) See Josh Kraushaar, Party Activists Bring Down Maryland Duo, Pot.moo (Feb. 13, 2008, 8:44 PM), www.politico.com/news/stories/0208/8519_Page2.html.

(12.) See Partisan Voting Index, supra note 6.

(13.) Marc Fisher, Op-Ed, Gilchrest Unloads on Know-Nothing Pols and the Rest of Us, WASH. POST, Oct. 2, 2008, at B1.

(14.) Paul West, Harris Rides Republican Wave, Unseats Kratovil in 1st Congressional District, BALT. SUN, Nov. 3, 2010, at 1A (noting that Harris lost to Kratovil in 2008 by a margin of less than 3000 votes, but retook the seat for Republicans in 2010).

(15.) See Partisan Voting Index, supra note 6.

(16.) Rosalind S. Helderman, Edwards Overpowers Wynn, WASH. POST, Feb. 13, 2008, atA1.

(17.) Editorial, For the House in Maryland," Two Able Incumbents and a Spirited Challenger, WASH. POST, Feb. 9, 2008, at A14.

(18.) Id.

(19.) Joshua Kraushaar, Challenger Wins EMILY's Support over Wynn, POLITICO (Jan. 16, 2008, 9:24 PM), http://www.politico.com/news/stories/0108/7942.html.

(20.) Rosalind S. Helderman, Wynn-Edwards Matchup Called a Bellwether Race," Progressives See Incumbent as Beatable in Contest Attracting National Attention, WASH. POST, Feb. 10, 2008, at C5.

(21.) Rosalind S. Helderman, William Wan & Ovetta Wiggins, Rare Dual Losses in Md. Put Incumbents on Notice, WASH. POSY, Feb. 14, 2008, at A1.

(22.) H.R. 543, 110th Cong. (2007). Similar legislation was introduced in the 112th Congress by Representative Heath Shuler (D-NC) (H.R. 453, 112th Cong. (2011)) and Senator Tim Johnson (D-SD) (S.694, 111th Cong. (2009)). Also in the 112th Congress, Representative Jim Cooper (D-TN) introduced "The Transparency in Redistricting Act" (H.R. 419, 112th Cong. (2011)), similar to legislation we proposed to make each state's redistricting process more open to the public.

(23.) U.S. CONST. art. 1, [section] 4 ("The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.").

(24.) Memorandum from the Congressional Research Service to the Honorable John S. Tanner (Apr. 8, 2005) (on file with Congressional Research Service).

(25.) H.R. 543. Information about our proposed legislation, including specifics about the independent commissions that would be created under H.R. 543, are based on our personal knowledge drafting and introducing this bill.

(26.) See U.S. CONST. art. III, [section] 2, cl. 1-2.

(27.) Special provisions are made for Nebraska, which has the country's only unicameral state legislature.

(28.) See Ed Cook, A Nonpartisan Approach to Redistricting, 16 LEGIS. LAW. 1 (2002), available at https://www.legis.iowa.gov/Resources/Redist/about.aspx (follow "A Nonpartisan Approach to Redistricting") (noting that "Iowa has adopted and used a unique redistricting approach since 1980 that delegates much of the responsibility for congressional and legislative redistricting to a nonpartisan legislative central staff agency, the Legislative Service Bureau").

(29.) See Background on Commission, CALIF. CITIZENS REDISTRICTING COMM'N, http://wedrawthelines.ca.gov/eommission.html (last visited Mar. 3, 2012).

(30.) Provisions are made for North Carolina, whose governor is prevented from approving or vetoing new maps.

(31.) H.R. 1711, 101st Cong. (1st Sess. 1989).

(32.) See AMS. FOR REDISTRICTING REFORM, http://americansforredistrictingreform.org/html/about_us.html (last visited Mar. 3, 2012) (noting the mission of the group and listing its members organizations, including the Campaign Legal Center, the Council for Excellence in Government, and the League of Women Voters, among others).

John Tanner, Randall Ford & Carling Dinkler IV *

* The authors are a former United States Representative and two of his senior aides.
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Author:Tanner, John; Ford, Randall; Dinkler, Carling, IV
Publication:Stanford Law & Policy Review
Date:Mar 22, 2012
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