Scholarly research gives some support to Leach's impressions. "Partisan gerrymandering skews not only the positions congressmen take but also who the candidates are in the first place," Issacharoff, of Columbia, said. "You get more ideological candidates, the people who can arouse the base of the party, because they don't have to worry about electability. It's becoming harder to get things done, whether in Congress or in state legislatures, because partisan redistricting goes on at the state level, too." Among members of the House, partisan redistricting has also bred an almost comic sense of entitlement to landslides. In a hearing on the post-2000 reapportionment in New York, Representative Benjamin Gilman, an upstate Republican, said that during the 1982 redistricting he was promised by the majority leader of the state senate that "if I accepted that challenge of a fair-fight district, I would never again be asked or forced by the state to face that prospect of a fair fight once again... I think it would be unfair not only to myself and my district to face that divisive prospect once again."
With partisan gerrymandering, House members in effect pay a penalty if they reach out too much to members of the other party. "What is laughable is the basic premise of what is going on," Charlie Stenholm, the endangered Texan, said. "The great sin I committed is that I won the last election 51-47 in a district that went 71-28 for President Bush. But I am a conservative Democrat, and that's why these people vote for me. There shouldn't be a penalty for reaching out across party lines." If Stenholm and his ilk disappear, they will be replaced by reliable Republicans — who won't have to worry about their own chances for reelection.
The question before the Supreme Court later this month (note update below) is not whether partisan gerrymandering is wise but whether it is constitutional. The issues are strikingly similar to those faced by the Warren Court in the early sixties — and the stakes may be as large as well. The framers of the Constitution designed the House of Representatives to reflect the popular will. James Madison, in the Federalist Papers, said the House was meant to be a "numerous and changeable body," where the members would have "an habitual recollection of their dependence on the people." While the House was supposed to be impetuous, the Senate was intended to be stable. Madison said that senators would serve six-year terms as a defense against "the impulse of sudden and violent passions" of the House, and the members of the Senate were to be elected by state legislators, providing a further level of insulation from the popular will. (The Constitution was amended to require direct election of senators in 1913.) The Senate had to remain stable, Madison wrote, because "every new election in the states is found to change one half of the representatives."
Today, the House and the Senate have precisely flipped roles. Senate races, which are not subject to redistricting, are decided by actual voters, who do indeed change their minds with some regularity. Control of the Senate has shifted five times since the nineteen-eighties. The House, by contrast, has changed hands just once in the same period, in the Republican takeover of 1994. In 2002, only one out of twelve House elections was decided by ten or fewer percentage points, while half of the governors' and Senate races were that close. In 2002, only four House challengers defeated incumbents in the general election — a record low in the modern era. In a real sense, the voters no longer select the members of the House of Representatives; the state legislators who design the districts do.
The question, then, is what, if anything, is unlawful about that? The legal debate on that question is especially stark. In the case now before the Supreme Court, Pennsylvania Democrats argued that the Republican gerrymander denied them equal protection of the laws, asserting in their brief that it is "unconstitutional to give a State's million Republicans control over ten seats while leaving a million Democrats with control over five." The Republican response is to say, in effect, "Welcome to the big leagues. State legislatures have always played this kind of hardball, the courts ought to stay out of the game altogether, and there's no such thing as a nonpartisan solution." Justice Sandra Day O'Connor, a former Arizona state senator herself, may have put the argument best when, in the mid-eighties, the Supreme Court last considered a political-gerrymandering case. According to Justice William Brennan's notes of the court's internal debate, O'Connor said that any legislative leader who failed to protect his party's interest in redistricting "ought to be impeached."
In that case, a challenge to the congressional-reapportionment plan in Indiana following the 1980 census, a plurality of the justices said for the first time that a partisan gerrymander might, in theory, violate the equal-protection clause. But in the 1986 decision the court ruled that the Indiana plan did not violate the Constitution. Indeed, the court said that the Constitution was not violated unless one political party was "essentially shut out of the political process." According to Heather Gerken, of Harvard, "The court set the bar so high for constitutional violations that no one has ever successfully fought a partisan gerrymander anywhere since 1986. Political parties are never totally 'shut out' of the process — they raise funds, put up candidates, make speeches. So these challenges have always lost. By taking the Pennsylvania case, the court seems to be saying that it's time to get back in the process."
The best argument for Republicans in the Pennsylvania case, it seems, is that it's simply not the court's business to scrutinize legislative maps for partisan gerrymandering. "Redistricting deals with inherently political questions," J. Bart DeLone, the senior deputy state attorney general who will argue for the case for Pennsylvania, said, "and those questions should be left to the political branches of government, where they belong, not to the courts. Then you are trying to measure things that have no standards unless you are making political judgments." Still, this is a Supreme Court that has not hesitated to tell politicians what to do. "It's an extremely confident court," Gerken said. "They second-guess Congress, states, state judges all the time. They are deeply engaged in the democratic process. I can't imagine that this is anything but an effort to pull in the reins of partisan gerrymandering."
But how? The Democrats propose a rule based, in part, on the Court's race jurisprudence. In a series of cases in the nineties, which challenged some of the majority-minority districts, the Court held that it violated the Constitution for states to gerrymander congressional districts exclusively for racial reasons. "The rule now is, You can't draw ugly districts if it's purely for race," Sam Hirsch, one of the lawyers for the Pennsylvania Democrats, said. "The rule should be, You can't draw ugly districts if it's purely for politics, either." But Hirsch's adversary, DeLone, pointed out, "There is a fundamental difference between race and politics. Racial classifications are inherently suspect. If you are doing something specifically because of race, we are always going to take a hard look at it. Not only are political judgments O.K. but we expect them." Since it's been so long since the Supreme Court addressed the issue, most election-law experts see the Pennsylvania case as difficult to handicap, and the key factor may simply be how bad the justices believe the problem of partisan gerrymandering to be.
In any case, the situation appears to be getting worse, even as the Pennsylvania case has been pending. While Texas was shifting its districts, the governing Republicans in Colorado did their own mid-cycle reapportionment, to solidify their hold on the one House seat in the state that produced a close election in 2002. (Legal challenges to the new Texas and Colorado districts are now pending.) At one point, the Democrats who control Oklahoma and New Mexico threatened retaliation, but the Party lacks a DeLay-like figure to press the issue. One state that has gone its own way is Iowa, which turned redistricting over to a nonpartisan civil-service commission after the 2000 census. Consequently, four of Iowa's five House races in 2002 were competitive, so a state with one percent of the seats in the House produced ten per cent of the nation's close elections. The rest of the country will follow only, it seems, if the Supreme Court requires it.
When it comes to drawing political boundaries, there never was a golden age of statesmanship. "When we Democrats controlled the legislature, sure we protected Democrats," Charlie Stenholm said. "But we didn't do harm to the Republicans who were in office. This thing today is a whole different order of magnitude." On his porch in Charleroi, Frank Mascara said the issue is a lot bigger than he is. "I'm through, I'm done, out of politics," he said. "It won't affect me one way or the other. But the system is now totally out of whack, and that matters to a lot of people. It's not about me, it's about power on a national scale."
Jeffrey Toobin is a writer living in New York City. This article originally appeared in The New Yorker magazine on December 8, 2003 and appears here with permission from the author.