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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Partisan Gerrymandering and the Impoverishment of Politics

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August 31, 2004

Many contemporary observers believe that the United States today is as deeply divided politically as it has been in generations. At the same time, the country also appears to be about as evenly divided as it could be, if party loyalty is the test. Of course, the closeness of the political divide likely contributes to the stridency of opinions on either side of the split. However, another factor may bear heavier responsibility for the vitriol and extremism so prevalent in American politics today: partisan gerrymandering.

Of course, gerrymandering has been with us for centuries. But its political impact has grown dramatically in recent decades, primarily as a result of powerful computer modeling coupled with increasingly sophisticated analyses of voter allegiances and demographic trends. In the hands of party loyalists, these tools have permitted the drawing of congressional districts and state legislative districts that are increasingly "safe" for the party in power, at least in the short term. The result is an impoverishment of our politics.

Every 10 years, the United States Constitution requires that seats in the U.S. House of Representatives be reapportioned among the states based on population, as determined by the decennial nationwide census. In turn, each state then draws its own internal boundaries to create the number of congressional districts to which it is entitled, subject to the "one-person, one-vote" requirement that each district has an equal number of residents. States also have typically used the decennial census as the basis for drawing district boundaries for state legislatures.

Unfortunately, the redistricting process in most states today is an intensely partisan enterprise, whether conducted directly by state legislatures or by special redistricting commissions appointed by political party. As a result, the drawing of legislative district boundaries is generally influenced primarily by calculations intended to reduce the competitiveness of most districts, to preserve the party in power, and to protect incumbents. In effect, partisan redistricting enables legislators (or their party surrogates) to choose their voters, rather than vice-versa. Furthermore, the efforts of the party that controls the redistricting process to protect its majority status typically have the effect of enhancing the security of at least some of the minority party's districts as well.

Both following the 1990 census, and then even more profoundly following the 2000 census, this political redistricting has created safe districts that tend to reward the "base" of each party at the expense of the political middle. The only meaningful contests over who will occupy these safe seats increasingly occur in the primary elections, when voter turnout is low and overwhelmingly dominated by party faithful. This political climate generally favors the more extreme candidates of both major parties, who find success in the primary elections, waltz to easy victories in uncompetitive general elections, and then give rise to increasingly polarized legislatures. Moreover, once in office these representatives continue to have the political incentives to reward their party base, rather than to represent a broader cross section. This development contributes to public cynicism about politics and to the sense among many citizens that their participation is unimportant.

Can anything be done to reverse this disturbing trend? A prior Weekly Comment has lamented the U.S. Supreme Court's recent refusal to halt the political gerrymandering at issue in Vieth v. Jubelirer. But judicial intervention is not the only option. For instance, as the result of a 2000 ballot initiative, Arizona now redistricts using an independent redistricting commission, comprised of two Republican commissioners, two Democrat commissioners, and a fifth non-partisan commissioner, chosen by the first four commissioners from a slate of nominees selected by the state's judicial nomination panel. The commission is charged with drawing district lines subject to specified criteria on a nonpartisan basis. In Iowa, while the state legislature retains the final authority to adopt legislative district boundaries, since 1980 the legislature has delegated the redistricting process to its nonpartisan Legislative Services Bureau, and prohibited the bureau from considering political affiliation or previous election results in the drawing of district boundaries. In addition, a number of citizen groups, such as the Center for Voting and Democracy, are actively encouraging reforms in our redistricting processes.

Unfortunately, these groups are fighting an uphill battle, especially in states without a popular initiative, where elected representatives must be persuaded to adopt reforms that would deprive them of redistricting as a means of self-protection. But this battle needs to be fought. The fact is that many moderate Americans justifiably feel disenfranchised by the polarization of our politics that has occurred in recent years, and neutral redistricting would do wonders to ameliorate this development and rejuvenate our country's representative democracy.