The Trouble With Texas

Arguments in the Texas redistricting case show that the Supreme Court has no idea how to fix the mess that it has made of our politics.

A dispiriting reality sank in as the Supreme Court worked through two hours of arguments on March 1 about the egregious gerrymander that Tom DeLay helped ram through the Texas Legislature in 2003: The Court has no intention of fixing—and no idea how to fix—the mess that it has made of our politics (with ample help from politicians) over more than four decades. And nobody else seems to have a good idea, either.

This mess is not just in Texas. Nor will it be ameliorated by whatever the Court does in the Texas case. Not even in the highly unlikely event of a decision to strike down the congressional redistricting map that knocked off five Democratic incumbents in 2004, while delivering 21 of Texas's 32 House seats to Republicans, up from 15 in 2002.

The mess to which I refer is state legislatures' use of gerrymandering—manipulating election district lines to help or hurt a particular candidate or group—to make 80 to 90 percent of the nation's 435 House districts so lopsidedly Republican or Democratic that the out party has almost no chance of winning.

The paucity of competitive general elections for House seats, bad enough in itself, has also helped polarize our politics into the bitter liberal-conservative brawling that litters the landscape today. Primaries, dominated by the most fervently partisan voters, are the only real contests. So victory goes to the most liberal of Democrats and the most conservative of Republicans. Moderates, who used to grease the wheels of conciliation and compromise, have almost disappeared.

The polarization that has poisoned the House has also infected the Senate to a lesser extent. Senators run statewide. But many climbed the ladder by being liberal or conservative enough to win in gerrymandered House or state legislative districts.

There will never be a better opportunity than the Texas case for the Supreme Court to do something about this. This is not because of the much-publicized hijinks and other particulars (described by National Journal's Richard E. Cohen last week) of the DeLay-driven decision to draw new districts to defeat incumbent Democrats. It is because the case raises all of the big questions that bear on redistricting, and because it will be the first opportunity for Chief Justice John Roberts and Justice Samuel Alito to address them.

Are partisan gerrymanders ever unconstitutional? If so, how to decide how extreme is too extreme? How many black-controlled and Hispanic-controlled districts must the state create (or preserve) to satisfy the Voting Rights Act? Must states strive for proportional representation of racial groups? At what point do efforts to satisfy the Voting Rights Act collide with the Court's equal protection rules against drawing oddly shaped districts with race as a "predominant factor"?

The justices have made the law on all of these issues so confusing, so internally contradictory, and so mind-numbingly complex as to be almost incomprehensible. But neither Roberts nor Alito, nor any other justice, suggested any way for the Court to improve the situation much, probably because no way exists.

"Courts ought not to enter this political thicket," Justice Felix Frankfurter wrote 60 years ago. If he and the Warren Court's liberals are still in touch, Frankfurter must be saying, "I told you so." The one-person, one-vote decisions of the early 1960s have had the unintended consequence of enabling politicians to choose their voters rather than the other way around.

Those decisions ended the gross malapportionment of congressional and legislative districts that had diluted the voting power of urban voters in much of the country. They also galvanized a national consensus that every vote should have equal weight. Indeed, when Alito was challenged during his confirmation hearing to explain a disapproving mention he made two decades ago of the reapportionment decisions, he had little choice but to endorse the one-person, one-vote principle as "a fundamental part of our constitutional law."

But Alito added a criticism of the Court for "taking it to extremes, requiring that districts be exactly equal in population, which did not seem to me to be a sensible idea." He was right.

So was Justice Lewis Powell, in a 1983 dissent warning that the Court's "uncompromising emphasis on numerical equality" would "encourage and legitimate even the most outrageously partisan gerrymandering." Requiring near-exact numerical equality made a hash of the traditional redistricting standards: city and county lines, compactness, contiguity, and the like. Those had been the only brakes on gerrymandering.

Later, the justices' unduly broad reading of the 1982 Voting Rights Act amendments as requiring safe seats for black and Latino politicians led to the drawing of oddly shaped "majority-minority" districts.

Politicians, under legal compulsion to draw oddly shaped districts, have pursued their own purposes while they were at it. Meanwhile, computer software has allowed the party in power to draw districts with exactly the desired numbers of Democrats and Republicans.

In California and other states, the two parties have collaborated to draw safe districts for as many incumbents as possible. This is bipartisan gerrymandering. In Texas and other states, the party in power has drawn maps designed to entrench its own incumbents while hurting those of the other party. That is partisan gerrymandering.

The Court has sought since 1993 to undo some of this damage by striking down a few especially bizarre-looking racial gerrymanders. But these decisions are easily evaded, both because they bump up against the Court's own Voting Rights Act rules and because the Court allows redistricters to pack mostly Democratic black voters into bizarrely shaped districts as long as the primary goal is to create safe Democratic districts.

Meanwhile, a bare majority of the Court has suggested that a sufficiently extreme partisan gerrymander might be unconstitutional, but the Court has never struck one down.

In 2003, in Vieth v. Jubelirer, the four more liberal justices wanted to strike down all or part of a 2002 gerrymander that had given Republicans 12 of the 19 House seats in Pennsylvania, which had more registered Democrats than Republicans. Four other justices said that the Court should never strike down a partisan gerrymander. Justice Anthony Kennedy, the deciding vote, said that no manageable definition of unfairness in redistricting had yet emerged, but he left the door open for future cases.

Which brings us to the 2003 Republican gerrymander in Texas. It is no more flagrant than the Pennsylvania gerrymander. Democrats, however, argue that it is uniquely outrageous because the Legislature's only reason for drawing a new Texas map was partisan advantage.

The Legislature did not need to redraw the map to comply with the one-person, one-vote rule, the Democrats stress, because a special three-judge federal district court had already done that in 2001. (The Legislature had deadlocked in 2001 without adopting any map.) Ergo, say the Democrats, the newly Republican Legislature's 2003 map was a purely partisan move to hurt Democratic incumbents and voters. Pretty persuasive, thinks I.

But wait: The state counters that it redrew the 2001 map to undo the lingering effects of a 1991 Democratic gerrymander. It enabled Democrats to win a 17-15 majority of the congressional delegation in 2002, even though Republicans had outpolled Democrats by 53 percent to 44 percent statewide. Even more persuasive, thinks I.

But wait again: The 2001 map had actually given Republicans an advantage in 20 of the 32 districts, say the Democrats. They held 17 seats in 2002 only because the advantage of incumbency had brought crossover votes from Republicans. That clinches it, I decided—until I was reminded that incumbents tend to keep running for life, so that the 2001 map might have perpetuated a Democratic majority in a 60 percent Republican state for the rest of the decade.

Perhaps you, dear reader, can clearly discern from all this what would be the fairest outcome. But I have given up. And most of the justices seemed content to leave bad enough alone. They also seemed likely to reject most or all of the Democrats' claims that this or that district had too few or too many voters of this or that race.

Whatever the outcome, it would be nice if the justices could tidy up a bit—bringing a dollop of clarity to their rules, loosening the one-person, one-vote straitjacket, reducing the pressure to draw minority-controlled districts even in places where minority candidates have a fair shot without such manipulations.

But it's hard to imagine the justices inventing a new right to more-competitive districts, or where in the Constitution they could find it. Someone else will have to fix this mess. Otherwise, we will be stuck with it forever.