DLC | Blueprint Magazine | May 31, 2005
The Fix Is In

By Ed Kilgore
Partisan gerrymandering to protect incumbents is out of control. Politicians are choosing voters, rather than voters choosing politicians. It's time for reform.

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One of the most important progressive goals of the 20th century was to ensure that legislatures were popularly elected, not appointed by political insiders. The Progressive Era gave us direct election of U.S. senators and nomination of candidates by primary. The U.S. Supreme Court later established the doctrine of "one person, one vote" in its Baker v. Carr decision, which required equal representation in all legislative bodies. The long trend was clearly toward legislatures that were structured to reflect the popular will.

But now, at the beginning of the 21st century, there are alarming signs that this trend is being reversed by self-interested legislators who are entrenching partisan control by gerrymandering safe districts for incumbents. In other words, politicians are choosing voters, rather than voters choosing politicians. 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. It thus contributes to the ever-growing and ever more toxic partisan and ideological polarization of American politics.

In response, there is a growing nationwide upsurge of support for redistricting reform. Democrats should become champions of that cause. They should make it a major part of a broad political reform agenda and press for it from now until the next decennial redistricting cycle.

The case for reform is especially clear in the body designed by the Founding Fathers as "the people's chamber," the U.S. House of Representatives. That is where the rapid decline in competitive districts has been most evident. 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 exceeded his national vote by more than 2 percentage points -- rose from 281 in 1992 to 356 in 2002. That left 79 theoretically competitive seats in 2002, out of 435. But it turned out to be even worse than that. In the run-up to the 2002 election, only 45 seats were ultimately rated as competitive by the authoritative Cook Political Report, and just 15 seats were considered true tossups.

The actual election results were starker yet. Just eight incumbent House members lost that year, and four of those lost to other incumbents in states where the number of House seats was reduced in the decennial reapportionment required under the Constitution. In 2004, the trend continued, with just three incumbents losing outside of Texas, where Republicans engineered a mid-decade re-redistricting to drive out four Democratic incumbents.

It is worth noting that redistricting is not the only factor in the rapid decline in marginal House seats. A long-term trend against ticket-splitting is also a factor, reflecting the ideological realignment of the two major parties. Yet Jacobson's analysis shows that the very design of the House, with so many safely Republican and safely Democratic seats, has rapidly reinforced and entrenched that trend, because voters have fewer opportunities to cross party lines to support viable candidates. It's a classic example of a vicious cycle in which voters are pushed to one side of the spectrum or the other and given little incentive to stray from the partisan flock.

Moreover, there are signs that the use of gerrymandering to reduce competition is spreading from congressional to state legislative redistricting. There, the temptation of incumbent protection is strengthened by the fact that legislators are drawing their own maps. Two states stand out in this respect: California, where redistricting was controlled by Democrats, and Florida, controlled by Republicans. In both, not a single incumbent candidate for the state legislature lost in 2004. In part because of widespread negative publicity about the comfortable status of incumbents, redistricting reform efforts are now under way in both states.

But the question of how to reform redistricting is, unfortunately, very complicated. Not all reform proposals are alike. So if Democrats are to guide reform efforts in the right direction, they must first learn the complex vocabulary, law, and mechanics of redistricting.

Reform options. Some reforms focus on who draws the maps. This makes the most sense with respect to state legislative redistricting, because there is an inherent conflict of interest present when legislators design their own political futures. Independent commissions are one way to fix that problem, and they can also reduce the pressure that parties and congressional incumbents routinely exert on state legislators when they draw congressional district maps. Seventeen states 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.

Yet experience has shown that it's 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 legal criteria used in redistricting, no matter who is charged with the responsibility -- politicians or outside authorities.

Iowa was a pioneer in this "criteria" approach. There, as a matter of law, the legislature must adhere to certain principles when it draws congressional district lines. The explicit goals include creating compact districts, maintaining consistency with other political jurisdictions, and preserving "communities of interest" among voters. Iowa also prohibits mapmakers from using party registration or party performance data when they draw district lines, to avoid partisan gerrymandering.

Compared with other states, Iowa's method has been a success. It has produced a number of competitive state legislative and congressional elections in recent years. But its system is arguably tailored to Iowa's own distinctive traits, including a persistently competitive political climate, a relatively homogenous electorate (where Voting Rights Act concerns about potential dilution of minority influence never arise), and a bipartisan "good government" tradition. So its formula may not be easily replicable elsewhere.

By contrast, the most recent efforts to encourage competitive districts in other states aim at positive inducements, requiring consideration of political factors rather than trying to prohibit it. For example, 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 special concern. It also not only allowed but encouraged consideration of political data like party registration and partisan performance, so that districts could be designed to be competitive. Unfortunately, the wording of the initiative persuaded Arizona's independent redistricting commission that it could treat "competitiveness" as an optional goal, which it proceeded to ignore. The commission's map for 2002 is being contested in the courts on those grounds.

The two big redistricting reform efforts under way this year in California and Florida illustrate the different paths states may take, and the relative merits of those paths. The fact that they are happening so far in advance of a new U.S. Census also reflects a growing belief that reforms ought to be put in place immediately, given the abandonment of the general rule of once-a-decade mapmaking by Republican legislators in Texas, Colorado, and Georgia.

High-profile efforts. California Gov. Arnold Schwarzenegger is stumping for a proposal that would create an independent commission composed of retired judges. Like Iowa's system, it would prohibit maps from being drawn to help incumbents or political parties, and it would even deny the commission access to information on partisan registration or voting patterns. And that's why the California proposal's provision urging the creation of competitive districts is a little bare: That's hard to do if you don't have data on which to judge the competitiveness of particular districts. The proposal is also questionable, in that it omits compliance with the Voting Right Act, or any other considerations of minority representation, altogether. Schwarzenegger has been negotiating with legislators to gain support for the proposal. It may be modified to deal with some of these criticisms -- and also, reportedly, to delay its implementation until after the next census.

Meanwhile, in Florida, a group led by 2004 Democratic Senate nominee Betty Castor and backed by the good-government watchdog group Common Cause and the Service Employees International Union is seeking to place a package of three reform initiatives on the 2006 general election ballot. One initiative would create an independent redistricting commission. Another would provide or an immediate redistricting of both congressional and state legislative maps, to be completed by 2007. The third initiative contains criteria to guide redistricting. It seeks to combine the best features of earlier proposals, including a provision for compliance with the Voting Rights Act, an injunction against incumbent-protection and partisan gerrymanders, and an explicit mandate for competitive districts. Unlike the California proposal, Florida's would not prohibit the use of partisan registration or election data.

It should be obvious from all the different types of reform activity under way that there is no universal consensus on the ideal redistricting reform scheme. Common Cause is backing both the California and Florida proposals, different as they are. But reformers are beginning to focus on competitiveness as the most important redistricting criterion -- and the trickiest. One leading legal expert on the subject, Washington, D.C., election lawyer Sam Hirsch, has pointed to a system utilized in New Jersey's last state legislative redistricting. It balances partisan fairness with competitiveness in a way that discourages both partisan and incumbent-protection gerrymanders.

There is growing bipartisan support for redistricting reform as an important "small d" democratic reform, and "large D" Democrats are quickly warming to the cause, despite their resistance to the Schwarzenegger proposal in California.

In part, Democratic support for redistricting reform reflects a general realization that the current system benefits the party in power in both the U.S. House and a majority of state legislatures. But support for redistricting reform also reflects a broader and very welcome development in Democratic politics: a reconnection with the great reform tradition of Jackson, Wilson, FDR, JFK, LBJ, and Clinton. Democrats are beginning to understand that they must again become the unmistakable Party of Reform, willing to fix all the broken pieces of our political system.

Ed Kilgore is vice president for policy at the Democratic Leadership Council.