October 8, 2015
Redrawing the Political Map
Posted on Dec 11, 2008
Florida and perhaps Minnesota are the only states with strong chances to pass reforms in the next several years. But Hebert sees an advantage on the horizon: “2011 will create some really bad examples [of gerrymanders], and we’ll have the opportunity to create some national buzz [against them].” Shortly thereafter, the California example will just be starting to prove to be a success or a failure, so it will be particularly salient.
Michael McDonald, a professor at George Mason University, doesn’t believe California will catalyze state action. But he sees strong possibilities for redistricting coming from the federal government. McDonald notes that during the 2008 presidential campaign, Barack Obama pledged to “encourage states to form” independent redistricting commissions. “Obama has some background in election law,” said McDonald. “We could see Obama getting involved in election reform.”
Federal action could take several forms. McDonald and Hebert both believe the president-elect may use his bully pulpit to call for nonpartisan districts. Both also point out that Obama’s will be the first Democrat-run Justice Department to preside over a post-census redistricting since Harry Truman was president. McDonald expects to see more strict enforcement of the Voting Rights Act, which protects minority districts and could be interpreted to disallow some gerrymanders. Due to a history of racially sensitive redistricting, all or part of 16 states are required to submit election district maps to the Justice Department for approval. Justice Department rulings on the maps of those 16 states have the potential to limit partisan cartography.
McDonald also sees possibilities for reform from Congress. While it has become a tradition for Congress to ignore the anti-gerrymandering bill perennially introduced by Rep. John Tanner (D-Tenn.), McDonald believes the bill could gain traction if Obama brings attention to the issue. However, others are skeptical that Tanner’s bill will go anywhere. The House Judiciary Committee hasn’t held a hearing on gerrymandering in years. Any such hearing is likely to take place in the subcommittee on the Constitution. That subcommittee is chaired by New York Democrat Jerry Nadler, and while Nadler’s press secretary “would agree that gerrymandering is a problem,” that concern hasn’t amounted to action. Wrangling the committee to move would probably require Obama to expend precious political capital.
Square, Site wide
State action would be piecemeal, and congressional action seems unlikely. A Supreme Court move, though, could have a sweeping effect. And “it’s possible,” says Sam Hirsch, the attorney who argued against DeLay’s district map in the Texas case.
If swinging the Supreme Court to action is possible, the hinge is Justice Anthony Kennedy. A Supreme Court majority requires five justices, and in the past, says Hirsch, “five justices have agreed that a strictly partisan gerrymander is unconstitutional.” The problem is that only four justices have agreed on the criteria for determining an unconstitutional gerrymander. Kennedy is the only justice who appears open to joining those four on a set of criteria. And if he does, a petitioner would still need to demonstrate that a particular partisan map distortion met those criteria. “I don’t see the case yet,” says Hirsch. “If I did, I’d take it. But the gerrymanders of 2011 and 2012 could produce that case.”
California could spur some state ballot initiative movements. The Obama administration could push for state or congressional action. The 2011 and 2012 gerrymanders may lead to increased demand for reform, and could even lead the Supreme Court to intervene. But is this what Americans really want?
Greater electoral competition sounds good. Yet more competitive elections mean that campaign money will be more important to more incumbents. So the greatest wellsprings of campaign money, including special interests, would be more powerful than ever.
Here is a (not very) hypothetical example. A particular member of Congress is a budget hawk with a safe seat. After a nonpartisan redistricting, the seat becomes competitive. Suddenly the incumbent, needing financial and political capital, has to cozy up to the biggest employer and political force in the district, which happens to be the defense contractor Lockheed Martin. All of a sudden, Lockheed’s federal budget-busting military aircraft sound like a great idea to the incumbent. Her ability to act as a budget hawk is gone. This is a more common scenario than one might think. Defense contractors intentionally spread out across the country in different districts for precisely this purpose—to influence as many representatives as possible. If more competitive elections cost more money, Lockheed, and politically powerful interests like it, will become even more influential.
What about the goal of bringing legislators toward ideological moderation with competitive general elections? Again, the notion sounds intriguing, but, Hebert says, when you “end up with more people in the middle, you end up with less people on the ends” of the political spectrum. Can America risk losing its few daring political voices? Regardless of whether one agrees with Ron Paul or Dennis Kucinich, their safe congressional seats allow them to challenge American political discourse in critical ways.
Experts disagree about California’s ripple effect. Many concur, though, that America now holds unprecedented potential for gerrymandering reform. After the 2011-2012 gerrymanders, that potential will build. Perhaps the greatest question is whether that momentum will be swept away in a storm of more urgent priorities.
Jeremiah Levine has managed and consulted on political campaigns at the federal, local, and state levels.
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