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KWAME HOLMAN: The House of Representatives is called the "People’s House." Its makeup is supposed to reflect the distribution of population across the country. And so the Constitution requires that states use census data, collected every ten years, to redraw the boundaries of their congressional districts to reflect population shifts.
That’s not really an issue in Wyoming, Montana, North Dakota, South Dakota, Delaware, Vermont and Alaska. Those states have populations small enough to warrant only one at-large representative in the House. But in large states such as Texas, with a congressional delegation that numbers 32, redrawing congressional maps is a complex process that often involves statistical math, creative drawing and of course, politics.
It’s the responsibility of state legislatures to redraw the maps with final approval given by the governors. In states where one political party dominates, it’s an easy process. Legislative leaders simply redraw the boundaries, usually giving their party the best chance of winning the most congressional seats.
But if state government is divided, the remapping process can result in a stalemate. That’s what happened in Texas after the year 2000 census. The Republican majority in the Senate and the Democratic-controlled House couldn’t agree on a new congressional map, and so a panel of federal judges stepped in and drew one.
But when Republicans grabbed control of the Texas House after the 2002 election, their counterparts in Congress — most notably House Majority Leader Tom DeLay — urged the governor and the now majority Republican Texas legislature to throw out the court-approved map and draw one more to their liking. This was Texas Lt. Gov. David Dewhurst, a Republican, last summer:
LT. GOV. DAVID DEWHURST: We’re going to draw a map that’s fair, that’s a Texas map that reflects the interest of the people of Texas — one that’ll represent the fact that the majority of people here in Texas like President George W. Bush, want to see a strong national defense, want to see lowered taxes; at the same time will reflect Democratic voters, independent voters here in the state of Texas.
KWAME HOLMAN: But the map Texas Republicans eventually drew, according to most political observers who’ve studied it, would shift dramatically the ratio of the congressional delegation. Currently 17 Democrats and 15 Republicans, it could shift to 22 Republicans and ten Democrats after the next election, sending seven more Republicans to Congress. Jim Dunnam is leader of the House Democratic caucus.
SEN. TED STEVENS: REP. JIM DUNNAM: Think of the instability in our country. If every time, every two years we redistrict Congress just because we could, or we didn’t … or the people in power didn’t like who the people were electing, what kind of instability would that create in our federal government?
KWAME HOLMAN: Texas Democrats didn’t go down without a fight, and their protests made for great political theater. In May, 51 state House Democrats flew north to Oklahoma, to deprive the Texas legislature of the quorum required to vote on the new map. In July, a dozen state Senate Democrats fled west to New Mexico. Texas’ Republican Gov. Rick Perry called them home.
GOV. RICK PERRY: My Democrat friends, it’s time to come back to work. There is still time to address the priorities of the people if you join your regular legislators in the spirit of bipartisanship.
KWAME HOLMAN: Eventually, the outnumbered Democrats did come home, opting instead to take their chances in court. Three weeks ago, in a similar case in Colorado, the state Supreme Court ruled against that Republican legislature.
As in Texas, Colorado Republicans this year redrew a court-ordered map after they gained control of their legislature. But the Colorado Supreme Court declared the map unconstitutional saying, "having failed to redistrict when it should have, the General Assembly has lost its chance to redistrict until after the 2010 federal census."
Colorado Republicans hold a five to two seat advantage in the congressional delegation. But if the state Supreme Court ruling stands, Democrats say they could compete for two of those Republican seats next year.
However, the most important challenge to a redistricting plan was argued two weeks ago before the United States Supreme Court. In that case, Pennsylvania Democrats charged that the Republican-controlled legislature designed a new congressional district map purely for partisan advantage.
The map reflected Pennsylvania’s loss of two congressional seats after the 2000 census, but Democrats suffered the consequences. The map Republicans drew pitted Democrats against Democrats, placing the homes of veteran Congressmen Frank Mascara and John Murtha into one district, and those of Robert Borski and Joe Hoeffel into another. Murtha and Mascara were forced into a primary fight, which Murtha won.
And Borski, rather than fight Hoeffel, retired. And so Republicans took the one-seat advantage they had held in the state’s congressional delegation prior to the 2002 elections, and actually added to it. Democrats, in all, lost three seats.
What attorneys for the Democrats want the Supreme Court justices to do is establish neutral criteria to help determine the shapes of future districts drawn for congressional elections.
MARGARET WARNER: Last Friday, a federal appeals court panel gave preliminary approval to the new congressional map for Texas, drawn by Republicans. Texas Democrats said they would appeal that ruling. Terry Smith has more.
TERENCE SMITH: We take up the debate now with two election law experts. Pam Karlan of the Stanford University Law School and John Yoo of Boalt Hall Law School at the University of California at Berkeley. He served in the Bush administration as the deputy assistant attorney general in the office of legal counsel. Welcome to you both.
Pam Karlan, what’s at the heart of this argument that is now before the Supreme Court?
PAM KARLAN: Well, it’s a question about whether the Constitution imposes any limits on partisan districting, and if it does, what those limits are and whether a court can enforce them.
TERENCE SMITH: John Yoo, is that the way you see it?
JOHN YOO: Yeah, I agree with Pam. The question is, you know, not whether politics can come into play in drawing districts.
TERENCE SMITH: Because they clearly do.
JOHN YOO: They clearly have, they have since the very first elections in our country. For example, the word "gerrymandering" comes from Elbridge Gerry who was accused of making the very first districts, who’s also the drafter of the Judiciary Act of 1789. So it’s been with us from the beginnings as a republic. But the other question is, exactly as Pam put it, not that politics can’t come in, but do courts really have the ability or have any role in policing how far politics can go?
TERENCE SMITH: Well, should they, Pam? Are they the right venue for this?
PAM KARLAN: Well, there has to be some limit on how far politics can go, and one of the hard questions is whether what you want to look at is the output, you know, how many seats the Democrats and how many seats the Republicans get.
Or whether you what you want to look at instead is the process by which redistricting is done. For example the way Colorado court did, and it said you can redistrict once and once that redistricting is done, you can’t keep revisiting the issue and tweaking the lines.
TERENCE SMITH: Well, what about that, John? The notion here in at least two of these cases, in Texas and Colorado, legislatures are attempting to redistrict what we could call mid-cycle, between the two tenure censuses. Is that a problem?
JOHN YOO: No, and the thing I think that is problematic is, you know, courts obviously play a big role in lots of things in society. They decide what’s free speech and what’s not free speech. But I do think there’s a real problem with courts trying to come up with a standard for what goes too far.
So for example, there have been situations where majorities of … parties have won 51 percent of an electoral vote in a state and only gotten 40 percent of the congressional seats. Is that politics going too far? What if they had won 60 percent or 70 percent and still ended up with only 40 percent of the seats?
You know, it reminds you of the effort that courts once made a long time ago to try to police competition in a different kind of market, the real market, not the political market. And courts, for a while, tried to figure out how much market power is how much too much, how can one company dominate an entire economic market.
And courts eventually gave up on that trying to look at what is called the output side of it because there’s no real standard that courts can apply to try to figure out when politics has gone too far and something is actually unconstitutional.
TERENCE SMITH: Pam Karlan, when you look at Texas case, which provided so much drama, you had something different there. You had federal … active federal involvement in the person of the House majority leader, Tom DeLay. Does that change the equation?
PAM KARLAN: Well, the reason that the federal court got involved in the first place is because the state of Texas and its political bodies, the legislature and the governor, couldn’t agree on a plan. And when the 2000 census came out, they had to redraw the state’s districts.
They couldn’t agree, and a federal court stepped in then. I think everybody understands that federal courts sometimes do have to step in because, otherwise, Texas would have had a bunch of seats with no districts for them and a bunch of districts that had changed dramatically in their populations since 1990, and you would have had a real inequality of representation. So the federal courts had to step in, and the question is just when the legislature defaults, should it get a second bite at the same apple?
TERENCE SMITH: What about that, John Yoo? Should it, a second bite?
JOHN YOO: You know, I think so. I think that, you know, this really should be something that’s up to the legislatures, and I can see why in some people’s mind it doesn’t seem right that you could have one party controlling the statehouse, controlling districts and maybe the party control over those districts ends up being out of whack with the population.
But you know, I think the important thing to keep in mind is that’s the way the framers drafted the Constitution. Our constitutional system is not a pure democracy. You know, every district is not necessarily drawn so that 51 percent of the people pick all 51 percent of the representatives. And so one of the things the framers built into our system was to allow states to have a certain amount of control over the way federal officials were selected.
For example, senators used to be chosen by state legislatures directly. So it shouldn’t be unusual that state legislatures, even if they’re the party representation there is a little bit out of what can with the representation in the Congress from that state, should be able to draw the districts in a way to favor their preferences.
TERENCE SMITH: But let me ask you both … or Pam Karlan especially, if that happened even more than once in a ten-year cycle, if the political leadership changed in a state legislature, what would you do? Redistrict every two years?
PAM KARLAN: Well, that kind of gets at what the real problem here is, which is the framers didn’t really anticipate the kind of districts we have today or the kinds of political gerrymanders we have today.
We didn’t actually have congressional districts in every state until the 1840s. Now in the 19th century, people redistricted again and again and again, and partisan politics was really fierce. I actually think the bigger problem today is, when the districts are drawn, as they are, they often either don’t represent constituents at all.
And I’ll just say here that one of the ways you can till tell a district is a little bit suspicious is if it has a nickname. Like for example, in Texas, in this latest re-redistricting, they drew a district from Hidalgo County, which is on the Mexican border, up to Austin.
Everybody, everyone is now calling it the "fajita district," because it’s a long thin strip of meat. And when you have a district like that, you know that something’s gone wrong. People in Hidalgo County and people in Austin don’t share a media market, they don’t share political organizations. There’s nothing to connect them except essentially empty pieces of land.
TERENCE SMITH: Is that wrong, John Yoo?
JOHN YOO: I don’t see why it is. I mean, I don’t see why because you have that kind of funny fajita district — there’s something in Pennsylvania called the "upside-down Chinese dragon district" — why should it matter so much that courts have to come in and say, "this is unconstitutional"?
Why can’t you rely on the political process to fix any kind of problems? Maybe the Republicans in Texas are going too far. Someday the Democrats in Texas will retake power again, and they could employ the same strategy.
You’ll have tit for tat or mutually shared destruction strategy where both sides will, you know, damp down if they’re going too far in order to make sure it doesn’t happen to them in the future. The real question is: Why should this all be unconstitutional, not whether not whether it’s a just a bad idea or not.
TERENCE SMITH: Well, the courts will decide that. But in the meantime, Pam Karlan, the critics argue that this leads to a polarization in Congress, and reduces competition for seats. In effect, it’s an incumbent’s insurance policy. Is it?
PAM KARLAN: Well, I think that’s absolutely right. Only 10 percent of the congressional districts in the country are competitive; that is, districts in which there’s a reasonable chance of either party’s candidate winning.
In about as many districts, one of the two major political parties doesn’t even put up a candidate. And if you look at which state has the most competitive districts in the country, it’s Iowa. And one of the reasons they have the most competitive districts is because they don’t allow the state legislature to redistrict.
In Iowa, an independent commission redistricts. The closest congressional race in the country, the last time around, was in Colorado, and the Republicans were quite candid that one of the reasons they want to re-redistrict there is to make sure that that congressman, who faced a real competition from the Democrats, won’t have any competition this next time around.
TERENCE SMITH: John Yoo, that point that Pam Karlan is making in Colorado is a very good example. They were, in effect, using it to create a specific political outcome. Does that give you any pause?
JOHN YOO: No, it doesn’t. And to respond to your question directly, is there polarization going on? Certainly there’s no doubt polarization is going on…
TERENCE SMITH: As a result of redistricting is what I’m asking.
JOHN YOO: That’s the question: Is it really a really of redistricting? Look at the Senate, which doesn’t have districts. Isn’t it the case that you have enormous polarization there. You have the inability of the Senate to confirm certain kinds of judges now, and you have filibusters which were unheard of 20 years ago of judicial nominees.
So is that really being caused by redistricting or not? Incumbency rates are certainly high, but again, let’s compare it to other kinds of elections that don’t districts. Incumbency rates for governors, state’s attorneys general, and senators are all extremely high, too, very close to the range of the members of the House of Representatives.
It seems that it might just be that the problems that people are worried about really arising from more broader political changes, and redistricting isn’t really getting at the problem or it really isn’t the problem and it really isn’t the solution.
TERENCE SMITH: Pam Karlan, what do you think that have because you sound as though you feel that redistricting is, in its way, shaping the Congress?
PAM KARLAN: Well, I think the rates of reelection of incumbents are substantially higher, actually, in the house than they are in the Senate.
TERENCE SMITH: They are.
PAM KARLAN: And part of that is a result of redistricting. And I think it also has a spillover effect into all of our politics, that you’re more likely as a congressman either to die in office or be indicted than you are to lose your seat in an actual general election. And that’s worrisome.
TERENCE SMITH: All right, for better for worse, it’s now in the hands of the courts. So thank you both, Pam Karlan, John Yoo, very much.
JOHN YOO: Thank you.
PAM KARLAN: Thank you.