One of the most important progressive goals of the early to mid-20th century was to ensure popularly elected legislatures at the national and state levels. From Progressive Era reforms like direct election of U.S. senators and nomination of candidates by primary, through the U.S. Supreme Court decision in Baker v. Carr that required equal representation in all legislative bodies, the long trend was toward legislatures that were structured to reflect the popular will.
Now, at the beginning of the 21st century, there are alarming signs that this trend is being reversed through the aggressive use of gerrymandering by legislators to draw safe districts for incumbents and/or to entrench partisan control. By reducing the number of truly competitive districts, gerrymandering also tends to disenfranchise independent voters and increase the power of the ideological extremes in both parties, contributing to the ever-growing political polarization of American politics.
In response, there is a growing nationwide upsurge of support for redistricting reform. But not all reform proposals are alike. It is important that New Democrats determined to identify their party with an agenda of political reform learn the complex vocabulary, law, and mechanics of redistricting to guide reform efforts in the right direction. The rapid decline in competitive legislative districts is most evident in the body designed by the Founding Fathers to be "the people's chamber," the U.S. House of Representatives. According to congressional elections expert Gary Jacobson of the University of California, San Diego, the number of "safe" House seats -- defined as those where the winning party's presidential candidate ran two or more percentage points ahead of his national average -- rose from 281 in 1992 to 356 in 2002. And of those 79 seats deemed competitive in 2002 by this definition, only 45 were ultimately rated as competitive by the authoritative Cook Political Report, with only 15 seats considered tossups.
And the results were even starker, with just eight incumbent House members losing in 2002, and four of those losing to other incumbents in states forced to reduce House seats. In 2004, the trend continued, with just three incumbents losing -- except for Texas, where a Republican-engineered re-redistricting beat four Democratic incumbents.
The 2006 congressional races might seem to represent a counter-trend, with 30 seats changing hands and 21 incumbents losing. But the results were more a product of overwhelming Democratic strength than of a major expansion of the battleground; the Cook Political Report identified 62 competitive seats just before election day, up just 17 from 2002. Even in this highly turbulent "change" election, 373 House seats remained uncompetitive. And an early Greenberg Quinlan Rosner survey of the 2008 congressional election landscape identified no more than 70 "battleground" districts, (with many of the Democratic seats showing a strong Democratic lead) a number that is likely to decline as Election Day approaches.
Aside from congressional districts, there are signs the use of gerrymandering to reduce competition is spreading to the state level, where the temptation of incumbent protection is strengthened by the fact that legislators are drawing their own maps and literally choosing their own voters. The question of how to reform redistricting is, unfortunately, very complicated. Some reforms focus on who draw the maps. This makes the most sense with respect to state legislative redistricting, where there is an inherent conflict-of-interest present when legislators design their own political futures. But independent commissions can also reduce congressional incumbent, and party, pressure on legislators drawing congressional maps. Seventeen states currently give independent commissions some role in redistricting decisions, but only four -- Arizona, Washington, Hawaii, and New Jersey -- give them a final say, subject to judicial review, in both congressional and state legislative redistricting.
Experience has shown that it is hard to design a truly nonpartisan redistricting body, and in any event, even the most impartial mapmakers need guidance. So the most recent trend in redistricting reform deals with the criteria used in redistricting, regardless of the authority, political or nonpolitical, charged with the responsibility. Iowa was a pioneer in this criteria approach, instructing the legislature, as a matter of state law, to (a) make traditional redistricting principles key factors -- such as compactness of districts, consistency with other political jurisdictions, and "communities of interest" -- while (b) prohibiting use of party-registration or party-performance data by mapmakers, to avoid partisan gerrymanders.
Iowa has, in fact, produced a robust harvest of competitive state legislative and congressional elections compared to other states in recent years. Yet, its system is arguably tailored to Iowa's distinctive traits, including a persistently competitive political climate, a relatively homogenous electorate (where Voting Rights Act concerns never arise), and a bipartisan "good government" tradition.
By contrast, the most recent efforts to encourage competitive districts aim at positive inducements to competitiveness, requiring acknowledgement of political considerations rather than trying to prohibit them. A ballot initiative passed by Arizona voters in 2000 set out redistricting criteria similar to Iowa's, but explicitly acknowledged Voting Rights Act compliance as a factor, and encouraged consideration of political factors in creating competitive districts. Unfortunately, the wording of the initiative convinced Arizona's independent redistricting commission that it could treat competitiveness as an optional factor, which it proceeded to ignore; its 2002 map was overturned in the courts on those grounds.
Three big redistricting reforms that emerged in 2005 also illustrate the different paths particular states may take; their relative merits, and the political difficulties involved in making such reforms politically viable.
California's Proposition 77, championed by Gov. Arnold Schwarzenegger, focused on creating an independent commission composed of retired judges.
Like Iowa's system, it would have prohibited maps drawn to help incumbents or political parties, and even denied the commission access to information on partisan registration or voting patterns. That is why the California proposal's provision urging the creation of competitive districts was more than a little bare; it is hard to do if you do not have the data to judge the competitiveness of particular districts. The proposal also raised concerns in that it altogether omits compliance with the Voting Rights Act or considerations of minority representation.
In the end, Proposition 77 was defeated by California voters, though most observers suggest that its fate was largely dictated by the unpopularity of the special election called by Schwarzenegger to dispose of this and several other initiatives.
In Florida, a group led by 2004 Democratic Senate nominee Betty Castor, and backed by Common Cause and the Service Employees International Union, spent much of 2005 working toward redistricting reform through a bundle of three popular initiatives they sought to place on the 2006 general election ballot.
The first initiative was to create an independent redistricting commission. The third provided for an immediate redistricting of both congressional and state legislative maps in 2007.
The second initiative contained criteria for redistricting, and sought to combine the best features of earlier proposals -- including a provision for compliance with the Voting Rights Act, a negative injunction against pro-incumbent and partisan gerrymanders, and a positive mandate for the creation of competitive districts. Unlike the California proposal, Florida's did not prohibit the use of partisan registration or election data.
While the Florida package of initiatives generated a great deal of editorial and popular support, and succeeded in attracting sufficient petitions to get them on the 2006 ballot, two of the three succumbed to court challenges on technical grounds (the redistricting criteria initiative ran afoul of a constitutional provision limiting the number of allowable words).
Finally, a late-breaking initiative drive in Ohio was focused on a redistricting-criteria plan that went even farther than Florida's in making competitiveness a key factor in redistricting decisions. But the entire "Reform Ohio Now" package (including other initiatives on campaign finance reform and de-politicizing election administration) went down to defeat in the general elections of November 2005 thanks to well-organized and financed Republican opposition, and some editorial concerns about the complexity of the proposed system.
It should be obvious from all the foregoing discussion that there is no universal consensus on the ideal redistricting reform scheme; Common Cause backed both the California and Florida proposals, different as they were. But that reformers are beginning to focus on competitiveness as a redistricting criterion is the most important, and trickiest, factor. One leading legal expert on the subject, Sam Hirsch, has pointed to a system utilized in New Jersey's last state legislative redistricting, which balances partisan fairness with competitiveness in a way that discourages both partisan and incumbent-protection gerrymanders.
Federal court decisions during the last round of redistricting should be taken into account in any prospective thinking about the next round. It is now clear that re-redistricting in the middle of a census cycle is acceptable to the U.S. Supreme Court; state bans on re-redistricting are accordingly more important than ever. At the same time, the high Court has rejected arguments that only state legislatures can impose valid districting maps; state or federal court-imposed redistrictings, if permissible under state laws, are equally valid.
Finally, in terms of congressional redistricting, it should be remembered that Congress has the power to override state decisions and create its own system. Rep. John Tanner of Tennessee has sponsored legislation that would require states to adopt independent redistricting commissions; respect such traditional redistricting principles as contiguity and congruence with local government boundaries; and abandon re-redistricting.
For all the complexity of the issue, support for redistricting reform reflects a broader, and very welcome, development aimed at restoring genuine accountability to the people for legislators serving at every level of government. With a national reapportionment and redistricting cycle just over the horizon, the experiences of reformers since the last cycle can and should have a significant impact on what states do after the next census.
The National Conference of State Legislatures' summary of nonpartisan redistricting systems
www.ncsl.org/programs/legman/redistrict/com&alter.htm
An outline description of the Iowa redistricting system
www.legis.state.ia.us/Central/LSB/Guides/redist.htm
Arizona Proposition 106, 2000
www.azsos.gov/election/2000/Info/pubpamphlet/english/prop106.pdf
Common Cause's redistricting reform webpage
www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=196481
Description of Florida's redistricting reform initiative proposal
www.committeeforfairelections.com
Rep. Tanner's redistricting reform proposal
www.house.gov/tanner/legislation_redistricting2.htm
Jennifer Duffy and Amy Walter, "How the Hill Was Lost," BLUEPRINT, Jan/Feb. 2003
www.dlc.org/ndol_ci.cfm?contentid=251224&kaid=127&subid=176
Mark Gersh, "The Republicans' Great Gerrymander," BLUEPRINT, May/June 2003
www.dlc.org/ndol_ci.cfm?kaid=127&subid=177&contentid=251791
Sam Hirsch, "The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting," 2 Election Law Journal, 179-216, 2003
Gary C. Jacobson, "Terror, Terrain and Turnout: Explaining the 2002 Midterm Election," Political ScienceQuarterly, Spring 2003
www.psqonline.org/cgi-bin/99_article.cgi?byear=2003
&bmonth=spring&a=01free&format=view
Tim Storey
National Conference of State Legislatures
7700 East First Place
Denver, CO 80230
(303) 364-7700
tim.story@ndsl.org
Rep. Philp Wise
503 Grand Avenue
Keokuk, IA 52632
(515) 281-3221
philip_wise@legis.state.ia.us
Ed Kilgore
Democratic Leadership Council
600 Pennsylvania Ave, SE, Suite 400
Washington, DC 20003
(202) 547-0001
(202) 544 5014 (fax)
ekilgore@dlc.org
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