For Albert Robinson, the Republican Party's majority in the Kentucky Senate is something to cherish. The GOP took over the chamber in the summer of 1999, when two Democrats defected, and maintained a 20-18 advantage in the November elections. Now Republicans are in control for the first time in a century.
As chairman of the committee that will redraw the Senate's district map, Robinson wants to pad the margin. He makes no secret of his plan to use the redistricting process to lock in the gains his party has made over the past 10 years.
"I've been a victim of partisanship," complains Robinson, who says Democrats "tried to destroy the Republican Party" in his state through previous redistricting endeavors. Now that the shoe is on the other foot, Robinson cheerfully admits that Republicans' eagerness to leverage their majority "goes without saying. Any party that's in control, charity begins at home."
Revenge is sweet, and hundreds of Republican legislators all over the country will be looking at the coming round of redistricting to carve out cozier political homes for themselves and their party. The GOP is in a better position to draw new political boundaries than it has been in half a century. Where once Republicans had to grit their teeth and accept the unfavorable district lines Democrats constructed for them, now the parties will be fighting it out on nearly equal terms.
Ten years ago, Republicans controlled all three legs of the redistricting "stool"--the House, Senate and governorship--only in New Hampshire and Utah. Now they will dominate the process in a dozen states. The GOP has 29 of the 50 governorships and full partisan control of the process in such crucial places as Florida, Michigan and Virginia. The only large state where Democrats have similarly unified control is California.
But for all their newfound cartographic confidence, Republicans will soon come face to face with a more complex reality. Despite the steady GOP gains, fully half the states will still be operating under split control: That is, one legislative chamber belongs to one party, and the other chamber or the governorship belongs to the other. In virtually all of those states, redistricting will be a long, difficult process in which neither side ends up with anything close to what it is seeking.
Just as important, any attempt to muster serious partisan advantage through redistricting will have to clear numerous legal and procedural hurdles. The U.S. Supreme Court has left the issue of race-based districting in a condition of utter uncertainty. And even the population estimates that will be used in the remap process face challenges over the racially tinged issue of statistical sampling vs. old-fashioned enumeration. "Redistricting in 2001 is going to be the greatest bonanza for lawyers since the founding of the New Deal," promises Caltech's J. Morgan Kousser, author of a book on redistricting and race.
The job will be complicated further in more than a third of the states by term limits, which will create a large crop of soon-to- depart legislators interested in drawing new congressional lines favorable to themselves. Meanwhile, legislatures will be flooded with competing political maps drawn by interested parties who will be empowered by improved redistricting software. All in all, it seems fair to predict that the dominant emotion in much of the country as the process unfolds won't be revenge, or grand partisan strategy. It will be confusion.
"This is going to be the messiest redistricting--legally and politically--that we've ever seen," says Bernard Grofman, a University of California, Irvine, political scientist.
Mess number one stems directly from the Census. The U.S. Census Bureau will soon release two sets of numbers, one an "unadjusted" actual count of census forms filled out last spring, another taking into account samples that will stand for those who were never found.
The Supreme Court has ruled that statistical models can't be used in reapportioning congressional districts among states but can be used to draw districts within a state. Virginia, along with a handful of other states, has passed a law calling for the use of raw, unadjusted numbers only. A federal court blocked the Virginia law last October, at least temporarily, but Republicans will continue to object to the use of any sampling adjustment in drawing political lines. On the other hand, the sampled data will include greater numbers of minorities, so states that don't use it can expect to encounter lawsuits from minority groups and even from some cities, such as Los Angeles and Miami, which joined in the Virginia case.
The chance to draw districts that can screw your opponents is such a great prize that the two parties drove spending on state legislative elections past the billion-dollar mark for the first time in 2000.
It was largely a standoff: Neither side captured quite the plums it was seeking. Each party picked up a legislative chamber here and there on November 7, but Republicans failed in high-profile runs to capture the state House in Texas, Illinois, Indiana and North Carolina, and the Senate in Wisconsin and Washington. Democrats fell short in bids to take over the House in Pennsylvania, South Carolina and Michigan and the Senate in Texas.
Republican consultant Craig Murphy of Texas has spent much of the past year trumpeting the idea that the GOP can gain 10 congressional seats in that state alone. Republicans point to Texas as the most skillful Democratic gerrymander of the 1990s, and gleefully look forward to undoing it.
There's ample reason to believe that Texas is gradually becoming a Republican state. There's not a single Democrat left holding statewide office. The GOP holds narrow control of the Senate, and growth in the state during the 1990s was heaviest in the suburbs that are now represented by Republican legislators. But the House remains in Democratic hands, making an optimum GOP map a mirage. "It's hard to imagine the House agreeing to anything that would be fair to Republicans," Murphy complains. It will be a scene played out in a number of states: a rising Republican Party thwarted by a Democratic chamber or governor that vetoes its best-laid plans.
If the relevant parties in Texas can't come to agreement on redistricting, the issue will be punted to the courts. Texas Republicans are certain that even a nonpartisan map will be better for them than the current state of affairs. Democrats, confident that they can block any serious GOP gerrymander in the legislative process, are praying that the courts will look kindly upon the tried-and-true criterion for resetting districts, incumbent protection.
Even in states where the GOP can call all the shots, great Republican gains are far from guaranteed. Ohio is a good example. The GOP majority in the state Senate there is a comfortable 21-12, but several of the existing constituencies are precarious for Republicans, and House districts are nestled within Senate districts. Thus, playing around with either set is politically dangerous.
Michigan presents Republicans with still another problem. They hold all the keys in Lansing, controlling not only the two legislative chambers and the governorship but also the state Supreme Court. And demographics should help the GOP, as the city of Detroit looks to lose a state Senate district and two state House seats to the Republican suburbs. But redistricting won't create vast new bounties for the party in power. The reason: In 1996, Michigan passed a law codifying standards the courts had used in drawing legislative districts for the 1980s and '90s, requiring the legislature to use intact counties and towns as the basic cartographic building blocks. "In essence, it kind of serves as an anti-gerrymandering device," says Bob LaBrant of the Michigan Chamber of Commerce, a GOP ally. "We could otherwise achieve a better partisan gerrymander."
Putting partisanship aside, the single greatest source of complication will be race. Part of what cost Democrats their control of Southern states during the 1990s was creation of black-majority districts that had the effect of consolidating the core Democratic vote in a limited number of places. The more districts that were dominated by minority voters, who tend to support Democrats, the thinner Democratic support was in neighboring districts. Republicans shrewdly formed alliances with African Americans to increase minority-majority districts, which had in any event been promoted by the 1982 Voting Rights Act.
That law made it clear that wherever minority-dominated districts could be created, they must be created. Since then, however, the U.S. Supreme Court hasn't shown much tolerance for the relevant section of the law, and during the 1990s disallowed districts in half a dozen states expressly because they were drawn using race as the predominant factor. But what the Court means by predominance is uncertain, and its numerous recent redistricting decisions are contradictory, at best.
In the Texas case of Bush v. Vera, for instance, the Court ruled that states cannot use race as a proxy for partisan loyalty in creating districts that have a race-based majority. But in an age of highly polarized voting, sifting out whether race is the main factor in creating such districts can be nigh on impossible. In many states, if you rank precincts by partisan voting behavior and then by race, the resulting lists turn out to be awfully similar.
"That's a treasure trove for lawyers, because it means you can litigate either way," points out Kousser, the Caltech political scientist. "It's quicksand for people who are drawing the district lines because they may believe--and correctly--that they're going to get sued either way."
It may not matter for long how convoluted legislators find the Court's current guidance. All of the Court's recent racial redistricting decisions have been decided by one of its famous 5-4 majorities. The court membership is unlikely to remain the same throughout the next round of redistricting consideration. If another justice replaces one of the swing voters, a new Court majority might well hold that the relevant section of the Voting Rights Act is unconstitutional, returning the whole question to a pre-1982 status quo ante.
Meanwhile, the cases will continue to come. As recently as November 27, the Supreme Court heard for the fourth time oral arguments in a suit challenging North Carolina's congressional districts of the 1990s. In other words, three weeks after the last elections had been held in those districts prior to their redrawing, questions of their constitutionality remained wide open. Arguing for North Carolina, former U.S. Solicitor General Walter E. Dellinger said that if courts remain on a "hair trigger" regarding race in redistricting decisions, "judges will be creating electoral districts" around the country. That seems likely. Over the past decade, 41 states had to defend their congressional or state legislative districts in court. During the coming decade, it's more likely to approach a perfect 50.
"From a redistricting staff standpoint," says Linda Meggers, redistricting chief for the Georgia legislature, "this has sort of been the decade from hell." She can count on another one at least as bad in the years to come. Meggers' office is preparing for all possible eventualities. Her staff is crafting specific procedural guidelines, bulking up databases and preparing to hire court reporters to record hearings.
One big factor that did not exist in the post-1990 remap process is term limits for state legislators. Eighteen states now have them, and they are a wild card in the mapmaking process. Just how they will affect it is difficult to predict.
Senior legislators in term-limited states, about to be forced out of office after six or eight years, are likely to be angling for promotion, from state House to state Senate or from the legislature to Congress. Their ambitions are bound to complicate the process.
On the other hand, some argue that term limits could have the effect of making individual lawmakers more willing to "take one for the team." They may be less emotionally attached to districts they are going to have to vacate anyway in a couple of years. In that case, party elders may be able to fashion a set of districts that maximizes the party's overall chance for success, even if that means putting a few individual members out of work.
Aside from their impact on the politicians drawing the new maps, term limits could dilute the institutional memory of legislators and their knowledge of state political boundaries. Being decennial affairs, redistricting efforts make for a steep learning curve anyway. Term limits accentuate that effect and in many cases weaken leadership. California, for instance, has had seven speakers during the past six years, including three since Democrats took back the Assembly in 1996, following two years of Republican control.
In November, the Democrats fended off a Republican ballot initiative that would have moved redistricting to the jurisdiction of the state courts. But whether they will have the skill to draw a gerrymandering masterpiece comparable to their legendary district map of 1981 seems highly doubtful. "With term limits and the drive-by leadership, it will be difficult for Democrats to draw their maximum map," said Jack Pitney, a professor of government at Claremont McKenna College, outside Los Angeles. "For the Republicans, the good news is that the bad news isn't as bad as it could be."
If there will be less professional redistricting skill in the legislatures than in past years, however, there will be an unprecedented increase in amateur political cartography.
The software for drawing maps based on block-by-block demographic snapshots has so greatly improved over the past 10 years that practically anyone with a laptop will be able to create the political landscape of his dreams. "All you need is a state with a relatively even Republican-Democratic population," said Craig Murphy, the GOP consultant, "and you can do a lot with a computer." As a result, literally thousands of maps will appear in the offices of legislatures and commissions responsible for creating a final product, probably making political agreement more difficult to achieve and lowering the bar for lawsuits.
Given all these factors promoting litigation at the expense of cooperation, Solomon on his best day would run into trouble dividing up states into new political districts.
In the end, of course, redistricting decisions will mostly be made through political maneuvering in state capitols. After all the partisanship and posturing, maps will be agreed upon, and elections will be held according to their boundaries. Even the cleverest mapmakers realize there are limits to what they can achieve.
For all his desire to gain revenge on his Democratic opponents, for example, Kentucky's Albert Robinson recognizes the one sure brake on his ambitions, namely the fact that Democrats control the state House and the governorship. "It's obvious if I make one map through my committee that's too unfair to the Democrats, when it comes to the other body it won't go through," he says. "The good part of it is that now we have a two-party system. That obviously dictates fairness, because you've got to have fairness to make it work."
But that doesn't mean that redistricting, the most political of all political acts, will end up being a source of unity and consensus anywhere. In this decade, at least, the process is going to have something to displease almost everyone. Democrats who once were in control and Republicans who wish they were in firmer control are going to make for quarrelsome co-pilots. Minority legislators, whose numbers nearly doubled during the 1990s, are going to have to concentrate reluctantly on keeping up their current presence, rather than seeking to expand their ranks very much. Courts are likely to look upon whatever results with scolding disapproval.
In short, the mapmaking process of 2001 is likely to serve as an opening bell in a fresh decade of continuing party warfare. "Just like there are no atheists in foxholes, there are no nonpartisans in redistricting," says Paul Green, director of the School of Policy Studies at Roosevelt University in Chicago. "You use whatever leverage you can."