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Electronic Roundtable '06

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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.

Electronic Roundtable '06

Political Competition, Redistricting, and the Texas Case

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February 28, 2006

In my first post, I argued that competitive elections are essential to healthy and legitimate democracies. In the second, I discussed the way this issue affects campaign finance laws, both as a matter of policy and in constitutional cases like that before the Supreme Court today. In this post, I discuss how the issue of competitive elections should shape the Supreme Court's approach to the Texas case on legislative districting. Although Brad Smith and I disagree about many issues, I believe we agree on the centrality of robust political competition - and on the risk that the partisans currently in office will seek to use law to minimize effective challenges to them. But I find it difficult to decipher exactly what Rick Hasen and Dan Lowenstein think about this basic issue. Perhaps it will help if we first sort out issues of democracy from issues of constitutional law.

Let's start with democracy. Consider this brazen admission by one incumbent regarding the designing of congressional districts today, which illustrates how redistricting today is used to protect incumbents and their allies. This is a statement by Rep. Loretta Sanchez, about the process in California , in which she describes the role of redistricting czar Michael Berman, the leading consultant to the controlling Democratic Party in drawing the new district lines there for the most recent congressional redistricting:

So Rep. Loretta Sanchez of Santa Ana said she and the rest of the Democratic congressional delegation went to Berman and made their own deal. Thirty of the 32 Democratic incumbents have paid Berman $20,000 each, she said, for an "incumbent-protection plan." "Twenty thousand is nothing to keep your seat," Sanchez said. "I spend $2 million (campaigning) every election. If my colleagues are smart, they'll pay their $20,000, and Michael will draw the district they can win in. Those who have refused to pay? God help them. [1]

That this is how the process works is bad enough. That it is considered so "normal" a member of Congress can brag about it in the local newspaper without shame or sanction suggests a truly pathological system. Can Dan and Rick possibly disagree with that? Should we blithely ignore this?

Insider self-dealing like this is part of the reason that i n California, Rep. Sanchez's state, every incumbent won by a landslide i n the 2002 congressional general election, right after redistricting; no challenger could muster more than 40% of the vote. And at least in this respect, California is not eccentric, but typical of the rest of the country. Here's one bottom-line fact, since I don't want to bore readers with too much detail: The post-redistricting elections in 2002 were the least competitive in American history. Challengers defeated only four incumbents. Gary C. Jacobson, Terror, Terrain, and Turnout: Explaining the 2002 Midterm Elections, 118 Pol. Sci. Q. 1, 10-11 (2003). If this situation has resulted to any extent from insiders manipulating the groundrules of democracy to give themselves secure sinecures - whether through the rules on how elections are financed, districts are drawn, or anything else - is that not a serious threat to democracy? I believe that it is, just as I believe economic firms that collude to destroy competition are rightly held to violate the antitrust laws.

I agree with Dan that we should not fetishize competition or any other single means or ends of democracy. Democratic institutions are designed to realize many diverse values: to ensure "fair" representation; to encourage citizen participation; to guard against majoritarian exploitation of minorities; to increase the likelihood of policies responsive to the interests of citizens; to hold officeholders accountable to citizens. Competitive elections are necessary to realize some of these values, but competitive elections are not the only means or end of value in democracy. Democracy involves an ongoing effort to preserve, accommodate, and make the appropriate tradeoffs between values like fair representation, accountability, effective policymaking, and the like.

But the problems we focus on at any particular time - by "we", I mean citizens, academics, judges, and legal doctrine, including constitutional doctrine - reflect that time. I have never said that competition is the only value that matters to democracy. I have never said that competition should trump all other democratic values. But what I have insisted on is that robust political competition is an important, indeed essential, element in any well-functioning democratic system. And I have also insisted that an acute problem in American democracy today is that competitive elections are rapidly disappearing in districted elections, in part because incumbents are systematically, intentionally, creating self-designed "designer districts" to allow themselves and their political allies to hold power without meaningful electoral checks to keep them accountable. Given that this is a serious problem today - just as gross malapportionment was a problem in the 1960s - it's a problem that we ought to focus on. Again, I wonder whether others in this discussion would at least agree to that.

So much for democracy. Now a brief word about constitutional law. Does the Constitution impose any barriers to politically self-interested manipulation of American elections? Should the Supreme Court enforce any barriers of this sort? Let me first put to the side some of the exaggerations in the "parade of horribles" Rick Hasen raises about this prospect. First, anytime the Court applies voting rights in the election context, one could raise all the same doomsday scenarios Hasen concocts. "If the Court holds the right to vote to be a fundamental constitutional right, then the Court will have the power in every election in the United States to take over the running of elections." "If the Court holds that the Constitution protects minorities against vote dilution, then the Court will have the power to decide whether every election district in the country is 'fair' to minorities." Etc. The task of judges, lawyers, and legal scholars is not, however, to be Chicken Littles; it is to determine, with far more precision, how to craft and apply constitutional principles to address serious constitutional harms in an appropriately targeted and limited way. Indeed, every point Hasen makes against the Supreme Court holding Texas's plan unconstitutional was made in the 1940s against the Supreme Court doing anything about grossly unequal election districts; against the one-vote one-person doctrine, in the 1960s, and against the Court holding unconstitutional minority vote dilution, in the 1980s and 1990s. Hasen's arguments were made by Justice Frankfurter in the 1940s, Justice Harlan in the 1960s, and Justice Thomas today. The Court rejected these arguments when it held that one-vote, one-person was constitutionally required and when it held that the Constitution is violated when districts are intentionally designed to dilute minority voting power. The Court rejected Hasen's "parade of horribles" many decades ago; I see nothing in Hasen's approach that would justify the Court in having endorsed one-vote, one-person or in having protected minorities against vote dilution. I don't think Hasen actually opposes one-vote, one-person, or fair minority representation, but apart from railing against the Court doing anything about gerrymandering today, he offers no credible account at all of why those earlier Court actions were right - and if they were, why gerrymandering today, in its extreme forms, should not, for the same or similar reasons, be unconstitutional.

I have offered the Court a simple bright-line rule appropriate for the Texas case. In an amici curiae brief in the Texas case, filed on behalf of myself, Sam Issacharoff, and Burt Neuborne, we argue that the Constitution should be understood to impose a per se bar to mid-decade redistricting (which is what is at issue in the Texas case), absent a judicial order requiring a legislature to do so or extraordinary circumstances that create a compelling need, such as the massive population movements associated with events like Hurricane Katrina. That rule raises no parade of horribles of any sort; it is easily administered, it does not require courts to judge every district in every districting plan in the country. And it will forestall a cycle of retaliatory mid-decade redistrictings across the states. Such a rule also does not require the Court to decide whether today's Republican gerrymander of Texas is worse or better than the Democratic gerrymander of a decade ago. The Constitution contemplates a Census and new allocation of seats to the states once a decade. State legislatures should similarly be limited to redistricting once a decade, when it serves the purpose of complying with new Census information and a new congressional apportionment of seats to the states.

I have always considered it one of the great virtues of law, including constitutional law, that doctrine often turns on nuanced, intermediate positions - unlike ideological debate and much public discourse, which gets organized around caricatured "parade of horribles" arguments and extreme, polar positions. Courts decide cases one by one, in terms of the specific issues in front of them. The Court can hold mid-decade redistricting unconstitutional without implicating any of Rick Hasen's concerns, which I find largely irrelevant to the Texas case itself. Doing so would only be one small blow against legislative manipulation of democracy for self-interested reasons. But anyone seriously concerned about legislators buying and selling safe seats for themselves and their allies should welcome such a blow.

1. H. Quach & D. Bunis, All Bow to Redistrict Architect, Orange County Register, Aug. 26, 2001 , at A1.

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