8 Shameful Things Our Founders Believed–VI

Picking up from last Friday:  The Rest of Shameful Thing 8–Redistricting.

Perhaps the most currently contentious legacy of the Philadelphia founders’ decision to leave the States in charge of how its voters select their federal—and, by default, state and local—representatives is periodic redistricting.

Because the original Constitution apportions House representation and taxation based on population, today we are counted every 10 years for those purposes.  The feds then calculate how each state has changed since the last census and how the result affects their allotted number of House seats.  This is the process known as reapportionment. Once the results are available, legislatures in the States must apply those results to subsequent federal—and, for the sake of convenience, state and local—elections.  So, they redraw the districts from which we elect our representatives, ostensibly on a “fair and balanced” basis; hence, redistricting.

Politics is by definition partisan, so this process has been characterized by the “winner-loser” mentality—essentially, those in power will want to remain in power—from the beginning.  Redistricting’s predominant synonym, “gerrymandering,” was named for Founder Eldridge Gerry who, as Massachusetts’ Governor, signed a bill implemented in 1812 that created geographically tortured election districts, including one near his home city of Essex, that was reported to resemble a salamander.

There’s a better story than that.  Robert Draper, who’s authored “The League of Dangerous Mapmakers” in the current issue of The Atlantic, was the featured guest on NPR’s “Fresh Air” on September 24.  His example:

It’s been going on since there was a Congress.  In fact, in 1788, when they were drawing maps for the first federal Congress, the state of Virginia got into some serious—what was not then known as gerrymandering, but would soon be—when Patrick Henry had his arch foe James Madison running and he wanted Madison to lose.  So he convinced the Virginia Legislature to draw Madison into the same district that James Monroe was running in—the 5th Congressional District—in hopes that Madison would lose.  Madison ended up winning.  He became the fourth president of the United States, and when he was the President, he had as his vice president a fellow named Elbridge Gerry.

In law school, I did a paper on a more modern variation on the theme, about the electoral journey of Rep. Emanuel “Manny” Celler, who represented several New York Districts during his 49-year career.  A Democrat dedicated to immigration reform and civil rights—he chaired the House Judiciary Committee when all those landmark civil rights laws were passed—his Republican foes in Albany drew him out of his district so frequently (four times) and creatively that, at one point, he claimed his latest one resembled a “turkey gobbler.”  (It’s an open question whether he was referring primarily to the map or the partisans who drew it.)  In 1972, he became the most senior Member of Congress to be defeated in a party primary, after he and popular local attorney Elizabeth Holtzman were bundled into the same new district.  (He did not campaign actively for re-election.)  All I can add is, I knew Liz Holtzman—and she was no Manny Celler.)

Over time, our House has grown from 65 seats apportioned over 14 states in 1788 to its current number of 435 over 50 (not counting the Last Plantation, territories, and protectorates) by 1913.  Three bits of historical chicanery stand out:

• In 1842 the Whigs—led by one J. Q. Adams in the House—engineered a coup over Jacksonian Democrats by reducing the total number from 242 to 228 by substituting Daniel Webster’s “new math” for the traditional Jeffersonian formula.
• After the ratification of the 14^th Amendment, and freed slaves had to be counted as whole humans, a major increase in seats was needed to keep about the same number of seats in the northern states—so, after the 1870 census the House grew by 50 seats to 292.  The House provided for equally-populated, contiguous and compact single member districts to protect any state from losing seats, despite shifts in population, which applied to all decennial reapportionment acts through to 1911.
• Due to increased immigration and a large rural-to-urban shift in population from 1910 to 1920, reapportioning using traditional contiguous, single-member district would not only have increased the House’s size to 483 seats but also would have cost many incumbents their districts.  In 1920, the Republicans removed the Democrats from power as the Whigs had done in 1838, taking the presidency and both houses of Congress.  Therefore, the Reapportionment act of 1929 did away with any mention of districts at all, thereby allowing the political parties in control of the state legislatures to draw districting lines at will and to elect some or all representatives at large, thereby protecting incumbents.  A 1932 Supreme Court decision essentially locked in that number of seats and their method of allocation until the 1960s.

A bit more than a half-century ago, Charles Baker—a Shelby County, Tennessee Republican—sued Joe Carr, his Secretary of State, alleging that the state’s Legislature had deprived him of his due process and equal protection rights under the federal 14th Amendment for failing to redraw their electoral districts, as the state Constitution had required since 1901.  The U.S. Supreme Court agreed with him. In his case and another decided in 1964, Reynolds v. Sims, the Justices abandoned their century-old “political question” doctrine and created the “one person, one vote” standard to be applied to state redistricting artistry to determine whether the results deprive a resident of the right of having her vote count as equally as any and every others’.

Those cases, their progeny, and application of the Voting Rights Act of 1965 through the 14th, 15th and 24th Amendments, stand for that principle.  The desire to be creative for political advantage endures, though, with interesting results.  After the Act 1965 was passed, some states created “majority-minority” districts—essentially “affirmative gerrymandering”—in which racial minorities were concentrated in specific districts, supposedly to redress past discrimination and assure some representation.  Gerrymandering based solely on racial data was held unconstitutional under the Fourteenth Amendment, first in Shaw v. Reno (1993) and subsequently in Miller v. Johnson (1995).

On the other hand, merely using racial considerations for purely partisan advantage is okay.  In Hunt v. Cromartie (1999), the Supreme Court approved a racially-focused congressional redistricting plan on the grounds that the means employed was not purely racial but rather partisan gerrymandering, which is constitutionally permissible.

Speaking of “legitimate” partisan gerrymandering, thanks to the Roberts Court it’s not just once a decade anymore.  In 2006’s League of United Latin American Citizens v. Perry, the Court upheld most of a Texas Congressional map engineered in 2003 by former House Majority Leader Tom “The Hammer” DeLay.  The decision allows state legislatures to redraw and gerrymander districts as often as they like (not just after the decennial census). Thus they may work to protect their political parties’ standing and number of seats, so long as they do not harm racial and ethnic minority groups.  (By a 5–4 vote they found one district—the 23rd—unconstitutional because the remap reduced its 55% Latino majority to a 46% minority.)

Our highest court may be in for another workout following November’s national election, depending upon how close the result proves to be and in which states.  Legislatures remain responsible for redistricting in 44 states.  In the first election following the 2010 decennial census, Republicans were in the majority in 29 states, taking over control of legislatures in 19 states.  (Twenty-six of 50 governors are now Republican, as well.  As of last Thursday, according to the Brennan Center for Justice at New York University’s School of Law:

• At least 180 bills restricting who can vote and how had been introduced since the beginning of 2011 in 41 states.
• 27 restrictive bills are pending in 6 states.
• 25 laws and 2 executive actions have been passed or taken since the beginning of 2011 in 19 states (Alabama, Florida, Georgia, Illinois, Iowa, Kansas, Maine, Mississippi, New Hampshire, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin).
• 16 states have passed restrictive voting laws or taken executive action that have the potential to affect the outcome of the 2012 election (Florida, Georgia, Illinois, Iowa, Kansas, Mississippi, New Hampshire, Ohio, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wisconsin).These states account for 198 electoral votes, or 73 percent of the total needed to win the presidency.
• Of these, restrictions from 18 laws and executive actions are currently in effect in 13 states (Florida, Georgia, Illinois, Iowa, Kansas, New Hampshire, Rhode Island, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wisconsin).

Finally, for those of you overwhelmed or merely bored by narrative, C.G.P.Grey breaks gerrymandering down in words and pictures:

Wednesday:  The first Black revolutionaries.