Re-Redrawing the Lines

This op-ed in surveys the landscape after the Supreme Court's decision in LULAC v. Perry.

June 29, 2006

The Hill
June 29, 2006

Re-Redrawing the Lines
By Justin Levitt and Lisa Sandoval

Yesterday the Supreme Court took another step in demoting itself from reluctant referee to irrelevant bystander in the battle by which district lines are drawn and politicians are elected.

Much of its fractured opinion in LULAC v. Perry, concerning former Rep. Tom DeLays infamous middecade redrawing of Texas's congressional districts, represents a missed opportunity to set sorely needed bounds on political greed. Although a majority of the justices found cause to address DeLay's dilution of minority votes, and several proved willing to tackle purely partisan motives, not one found the plans novel timing constitutionally deficient in itself.

The courts decision leaves a process fundamental to representative democracy dangerously susceptible to repeated partisan abuse.

Each state is responsible for drawing its own district lines. To ensure that citizens are equally represented to guarantee one person, one vote each state must adjust district boundaries to keep pace with official population counts. If a disproportionate number of people have moved into a district, the district must be resized so that each vote carries the same weight. Thus, after each decennial census, each state is legally bound, to reevaluate its district lines.

In Texas, however, Tom DeLay drove the process beyond this constitutional mandate. Although a court had already brought district lines up to date using the one-person, one-vote standard, the Texas20Legislature decided to redraw the lines in the middle of the decade.

Its ends were partisan: to ensure congressional dominance of the majority party in the state Legislature. And its means were notorious: when legislators fled the state to protest the re-redistricting and deny the Legislature a quorum, Department of Homeland Security resources were used to impose DeLay's will.

This re-redistricting process triggered seven lawsuits, alleging procedural impropriety, racial retrogression and improper gerrymandering. Among these claims was the simple proposition that partisan politicians may not redraw district lines whenever they wish.

Meaningful representative democracy requires more stability. If our representatives could change the rules at any time, politicians would choose their voters, rather than the other way around. Legislators would represent only their parties, rather than the voters who elect them. And majorities would have the means to ensure artificially that they remain majorities indefinitely. Real democracy depends on some limit, some way to ahem draw the line.

Yesterday, however, the Supreme Court refused to set such a boundary. Indeed, a majority of the justices acknowledged no real federal limits governing when and how often districts can be redrawn. When one party controls the state Legislature, it may constitutionally redraw district lines for maximum advantage as often as may be convenient. And it may draw these new lines with old data, packing districts with disfavored voters and minimizing their voice as often as may be convenient. As far as the court is concerned, the world of unfettered re-re-re-redistricting has arrived.

Congress could stop the madness. It has the constitutional authority to determine the rules by which its own members are elected; it could set clear limits on the redrawing of congressional lines. Such proposals, however, have gathered little momentum. Instead, many members seem poised to pounce on a new opportunity for partisan gain, waiting only to see whether the federal courts will intercede. We now know that they will not.

Yet we, the people, are not wholly defenseless. In the absence of effective federal referees, a state may still set its own backstop, limiting legislators ability to redistrict on a political whim. In at least 19 states, state law restricts the redistricting process to once per decade for state legislators, Congress or both.

Other states without such protections or where protections are ambiguous and hence subject to abuse could shore up their safeguards. Such noble self-restraint remains unlikely. It takes an unusually brave partisan actor to forsake short-term advantage in the interest of long-term stability.

This means that the people will have to speak out for themselves. The initiative process put redistricting reform on the ballot in two key states in 2004. Despite the defeat of those measures more redistricting initiatives are likely to follow as the 2010 census approaches.

Some of the choices will be difficult: Who decides where to draw the lines, how to foster meaningful competition, how to ensure fair and effective representation for minorities.

At least one choice in these initiatives, however, is straightforward. Citizens can and should prevent unlimited redistricting at the whim of the party in power.

Justin Levitt is associate counsel in the Democracy Program at New York University's Brennan Center for Justice. Lisa Sandoval is a student at the Columbia law school.