The Impact of 2003 Redistricting on 2004 Elections

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					The Impact of 2003 Redistricting on 2004 Elections: The Cases of Colorado and Texas

James W. Riddlesperger, Jr. Texas Christian University James D. King University of Wyoming Richard N. Engstrom Georgia State University

Paper presented at the annual meeting of the Southern Political Science Association, New Orleans, Louisiana, January 6-8, 2005.

“Remap” is not in the dictionary, but it should be, as both verb and noun.
— Mark Monmonier 1

Redistricting is the most purely political of all legislative activities as it reallocates political influence. While the story of Elbridge Gerry and the infamous salamander district in Boston is used to show how legislators draw district lines for political advantage, the simple truth is that all legislative redistricting is done for some political advantage. As Douglas Rae noted, “electoral laws are of special importance for every group and individual in the society, because they help to decide who writes the other laws.”2 In the charged partisan environment of the early 21st Century, congressional redistricting became a means for securing political power by diluting the voting strength of the minority political party. Tactics once used to disenfranchise racial and ethnic minorities continued to be used for augmenting partisan majorities. Congressional seats are reapportioned every decade because of the constitutional requirement of proportional representation among states in the House of Representatives.3 However, it is the within state allocation of those seats—the redistricting process—that is most interesting to observe. Districts can be drawn to advantage rural areas over urban areas, incumbents over potential challengers (or to target an incumbent to prevent reelection), racial majorities over racial minorities, or one political party over another. Of course, districts could also be drawn objectively, with a computer program designed to assure maximum local “community of interest” consideration as measured by drawing lines most coincident with local city or county boundaries. Or computer programs could make all districts as equal as possible in geographic size. Or some other objective criterion could be used. But in truth, no vested interest


in politics would allow such “objective” processes to redistrict a state precisely because lines could not be drawn for political advantage. Before the series of Supreme Court decisions in the 1960s requiring that virtually all representational districts be apportioned equally regarding population, redistricting formulas often led to wide disparities in population across districts within a state. This process often led to rural agricultural areas having disproportionate influence in state legislatures and in Congress. In Wesberry v. Sanders in 1964, the Supreme Court overturned the congressional districting plan of Georgia in which some districts had populations twice as large as others. Justice Hugo Black wrote for the Court that “[t]o say that a vote is worth more in one district than in another would not only run counter to our fundamental ideas of democratic government, it would cast aside the principle of a House of Representatives elected ‘by the People. . .’”4 After that decision, redistricting by varying district populations became passé and more artful processes had to be developed. In response to state efforts to avoid electing representatives from minority groups, the Voting Rights Act of 1965 limited the ability of states to gerrymander explicitly to dilute minority voting strength. The Voting Rights Act in effect codified the meaning of the Fifteenth Amendment’s right to vote requirement. It focused particularly on the South where minority populations were at the highest and the history of discrimination based upon race was the greatest. Section 5 of the Act requires areas where discrimination has been practiced historically, including Texas, to obtain “preclearance” from the Justice Department before new districts can be approved.5 A series of U.S. Supreme Court decisions have defined the parameters for gerrymandering to protect the voting rights of racial and ethnic minorities.


Redistricting in the wake of the reappointment following the 2000 census was highlighted in several states by overt efforts to manipulate the partisan composition of the congressional delegation. There was, of course, nothing new in efforts to gain political advantage through the redistricting process. In his opinion in Colegrove v. Green, Justice Felix Frankfurter characterized the reapportionment process as embroiled in politics “in the sense of party contests and party interests.”6 During the reapportionment and redistricting controversies of the 1960s, a Democratic legislator from Missouri commented: “Did the Republicans really expect the Democrats to draft and support a redistricting bill favorable to the Republicans? If they did, their political training has been sadly neglected and their political acumen hovers near the zero mark.”7 But this effort to gain political advantage reached its peak in 2003 when the legislatures of Texas and Colorado attempted to redistrict congressional seats for a second time in the decade. In doing so, the Texas and Colorado legislatures revived a 19th century practice, when redistricting within decades solely to accomplish political advantage was common; at least one state redrew its congressional districts each year between 1872 and 1896. Such redistricting had great significance beyond the individual states as well, altering on at least two occasions the party control in the U.S. House of Representatives.8 By revising this 19th century practice, Texas and Colorado were violating what had come to be accepted in the 20th century as one of the unwritten “rules of the game”—as David Truman termed “the norms, values, expectations” that define governmental institutions9—regarding redistricting. Andrew Hacker noted that political parties followed accepted practices when it came to redistricting: There is no denying that when a new party gains a legislative majority it does not redistrict the state’s congressional districts right away but waits until the next Census. . . . A party refrains from grasping every immediate opportunity to


feather its own nest simply because it would not like to see such opportunism work in the opposite direction when it is out of power.10 In violating this “rule of the game,” the Texas and Colorado legislatures set off firestorms in their states that have implications beyond their respective congressional delegations. Court rulings produced by the various legal challenges could alter the landscape of redistricting following the 2010 census and, more immediately, the Republican majority within the U.S. House of Representatives was enlarged. Redistricting politics have become particularly acrimonious in recent years as “politics by other means” has become the norm of the times. The notion of politics by other means is that the norm of negotiating public policies within the institutions of government has been displaced by using factors outside the decision-making institutions to “prefix” policy outcomes. Most frequently, such politics by other means have to do with deciding outcomes not by discourse but rather by determining outcomes by making certain that those who hold public office are of one variety instead of another. Under such a system, media scandals, congressional investigations, and judicial proceedings replace electoral competition as the primary weapons of political warfare. Tactics include character assassination of opposing political leaders and the use of impeachment to try to remove officials from office, such as in the targeting on President Nixon in the early 1970s or President Clinton in the 1990s.11 Additionally, the "advice and consent" function has been used to keep political opponents from ascending to high executive or judicial office, such as in the failed nominations of Robert Bork to the U.S. Supreme Court and Lani Guinier as assistant attorney general for civil rights. Other tactics have emerged in the use of recall procedures in states to insert new officials into office (e.g., the ousting of Governor Gray Davis in favor of Arnold Schwarzenegger in California) and in the use of redistricting politics to


change the proportion of representatives who are members of the two political parties, such as what occurred in Colorado and Texas. This paper examines redistricting in Texas and Colorado following the reapportionment accompanying the 2000 census. We begin with a discussion of the politics of redistricting in these states during 2001, 2002, and 2003, including a comparison between the efforts in the two states. We then turn to a comparison of the districts drawn by prior to the 2002 elections and during the 2003 re-redistricting battles. Finally, we discuss the significance of redistricting in Texas and Colorado on American politics.

Redistricting in Texas and Colorado The struggles in Texas and Colorado over congressional redistricting were set off by the post-2000 census reapportionment that granted both states gains in the U.S. House of Representatives. Texas moved from 30 to 32 seats while Colorado gained a seventh seat. But the redistricting debates were not limited to the placement of the new seat(s) but expanded to include the redesign of existing seats to partisan advantage. Furthermore, the 2000 elections resulted in Texas and Colorado having Republican governors but divided party control of the two chambers of the state legislature. Much of the subsequent conflict would have been avoided had Republicans controlled the Texas and Colorado state governments when redistricting was first considered during 2001.12 Republican successes in the 2002 elections, when the GOP gained full control of state government in both states, produced the showdowns over redistricting in 2003. The root issue in both states was Republican control of the U.S. House of Representatives. Republicans in Texas and Colorado were unabashed about claiming a right to greater proportions of the congressional seats based on their successes in recent statewide


elections. As the majority leader in the Colorado House of Representatives described it, “We have to do the right thing and support our party.”13 Congressman Tom Delay, Republican whip during the 107th Congress and majority leader during the 108th Congress, offered a more direct argument, stating simply: “we want more seats.”14 The party’s successes at the polls was similar in the two states: the election of Republican governors, the election of two Republican United States senators, and voters’ preference for Republican presidential candidates in seven of the eight previous elections.15 The drive to ensure GOP control of Congress meant that Republicans would not accept the redistricting decisions made in 2001 and 2002 that did not provide what they believed was warranted. The failure to gain the congressional majorities to which they believed they were entitled to, based on the success of other Republican candidates, was a motive in the redistricting moves of 2003. Because control of the U.S. House was at stake, national political forces became involved. This was most obvious in Texas, where Congressman Delay openly and aggressively supported Republican state legislative candidates to enhance the party's voice in congressional redistricting. In an unusual step, DeLay ultimately brokered the negotiations between the state House and state Senate when Republicans in the two chambers could not reach an agreement. 16 While involvement of national Republican leaders was not as evident in the Colorado redistricting struggle, it was no less notable. The White House acknowledged that presidential aide Karl Rove assisted Republicans in developing their strategy on redistricting17 and state Senator Doug Lamborn, who sponsored the 2003 redistricting bill, conceded that “people in Washington are looking at this. They’re watching closely.”18 The congressional redistricting process in both Texas and Colorado was troubled throughout. Neither state’s legislature was able to complete a redistricting plan during its 2001


session; an October 2001 special session in Colorado also failed to produce a congressional redistricting plan as the Republican House and Democratic Senate each held out for its own plan. The inability of the state legislatures to enact congressional redistricting plans resulted in judicially-crafted plans. The U.S. District Court for the Eastern District of Texas issued an order in Balderas et al. v. State of Texas adopting districts for the 2002 elections that were not strikingly different from those used throughout the 1990s. The U.S. Supreme Court affirmed the Balderas decision. In Colorado, a state district court approved a new congressional district plan that preserved the basic structures of the six existing congressional districts and created a competitive new seventh district from north Denver neighborhoods and adjoining suburban communities. The Colorado Supreme Court unanimously affirmed the state district court’s decision.19 Republican successes in the 2002 elections, when the GOP gained full control of state government in both states, set the stage for rancorous showdowns over re-redistricting in 2003. The Texas battle over congressional redistricting attracted national headlines as first Democratic members of the state house and then Democratic senators fled the state in parliamentary moves to deny Republican leaders the two-thirds quorums needed to conduct business. The boycotts ended when public opinion polls indicated opposition to the Democrats’ tactic.20 During a third special session on the issue, Congressman DeLay intervened to reach an agreement between Republicans favoring a districting plan that promoted agricultural interests and Republicans preferring a plan friendly to petroleum interests. Although it is highly unusual for a member of the U.S. House of Representatives to be involved directly in the writing of a state legislative bill, DeLay's involvement clearly marked the turning point in negotiations.21 The remap endangered the careers of seven Texas Democrats, all white males. Most dramatically, the 24th district,


represented by Democrat Martin Frost, was divided into five different districts, all Republican dominant. Republican leaders expressed joy at the completed plan, with the lieutenant governor reflecting that the legislature had “finally created a map that reflects today the voting trends of the state.” Democrats attacked the bill as illegal and untenable.22 In Colorado, the Republican leadership pushed a new redistricting plan through the General Assembly near the end of the 2003 legislative session. The new map enhanced GOP strength in the third and sixth congressional districts as well as the seventh district, where Republican Bob Beauprez won by just 121 votes.23 The redistricting move came with no advance notice or publicity, taking both Democratic legislators and political observers by surprise. In a span of five days, the new plan was introduced, passed by the General Assembly, and signed into law by the governor. The last-minute action on redistricting was characterized in the news media as “midnight gerrymandering.” Democratic leaders complained that Republicans were violating the General Assembly's own procedures regarding timely introduction of legislative proposals and the state constitution's provisions on redistricting. Republican leaders responded that the legislature—not the judiciary—was responsible for establishing congressional district boundaries and that had not been accomplished in 2002. Governor Owens admitted that the timing of the introduction was a deliberate move to prevent the Democratic minority from stopping debate on other issues to contend with redistricting.24 Legal battles over the Texas Legislature's and Colorado General Assembly's decisions in 2003 to redo the court-adopted congressional district plans were fought in different arenas. The Texas challenge was heard in U.S. District Court and focused on provisions of the U.S. Constitution and federal law. The Colorado challenge was heard before the state Supreme Court and focused on provisions of the Colorado Constitution. This distinction is not insignificant.


In Sessions v. Perry, 25 the U.S. District Court rejected three principal Democratic claims regarding the 2003 redistricting plan:

The state legislature was not precluded from redistricting in mid-decade. The court read Article I § 4 of the U.S. Constitution as a broad grant of authority to the states that is restricted only by specific congressional action. The court found no restricting provision of the U.S. Constitution or of the United States Code. Congress has only required singlemember districts, the court observed, and has imposed no limits concerning when redistricting can occur.


Judicially-written redistricting plans are not permanent substitutes for legislativelyderived plans. The court rejected a claim that the congressional district plan established in Balderas et. al. v. State of Texas precluded the subsequent enactment of a congressional districting plan by the Texas Legislature. The U.S. Supreme Court's decision in Wise v. Lipscomb, which held that a court could “devise and impose a reapportionment plan pending later legislative action,”26 required judicially-crafted redistricting plans to give way to legislatively-crafted plans even if it meant a second redistricting during a decade.


The 2003 redistricting of congressional seats in Texas did not violate the Voting Rights Act. The court’s position on this point hinged on the distinction between intent to discriminate and effect of discrimination.27 The intent of the congressional redistricting plan, the court observed, revolved around partisanship in representation rather than race or ethnicity: “There is little question but that the single-minded purpose of the Texas Legislature in enacting [the new congressional districting plan] was to gain partisan


advantage.” Any loss of representation of minorities was a byproduct of the partisan goals that were the basis of the 2003 redistricting effort. Unfettered by federal restrictions and with a partisan intent, the Texas Legislature was free to redistrict despite the existence of a court-adopted congressional districts plan. Whether this decision will stand remains uncertain, however. In April of 2004, a plurality of justices on the U.S. Supreme Court concluded in Vieth v. Jubelirer that gerrymandering for partisan political advantage was not a justiciable issue because of an absence of discernible and manageable
standards for adjudicating such claims.28 Yet on October 18, 2004, the Supreme Court vacated the

previous decision upholding the Texas redistricting and remanded the case to the U.S. District Court for Eastern Texas “for further consideration in light of Vieth v. Jubelier.”29 It is unclear if that remand would require the panel to simply uphold the Texas redistricting as it came to them because there was no justiciable issue or if the Supreme Court is seeking to develop a standard that can be used in future redistricting. Given the close split on the Supreme Court, the decision cannot really be predicted. Challenges to the Colorado General Assembly's new redistricting plan were filed in federal and state courts. The federal case was held pending the decision in the state court and subsequent appeals.30 The Colorado Supreme Court granted a request to hear the case immediately under its original jurisdiction and, in People ex rel. Salazar v. Davidson, ruled that the 2003 redistricting plan adopted by the General Assembly violated the Colorado Constitution.31 The basis for the decision was Article V § 44 of the state constitution, which requires the state to be divided into as many congressional districts as there are U.S. representatives and directs General Assembly to redistrict congressional seats “[w]hen a new apportionment shall be made by Congress.” This provision the court interpreted as creating a


window during which redistricting is to be done: the time between the apportionment by Congress following the decennial census and the ensuing congressional election. The word “when” was taken to mean immediately following the reapportionment rather than at some point in time after the reapportionment. The court also noted that the General Assembly's past redistricting practices indicated an understanding that congressional redistricting could be done only once per decade. Furthermore, the court rejected an argument that the first clause of Article I § 4 of the U.S. Constitution empowers only the legislature to establish the conditions under which congressional elections are conducted in the state (pursuant to applicable constitutional provisions and federal statutes). Support for this position was found in several U.S. Supreme Court decisions interpreting the word “legislature” in Article I to mean the state law-making process broadly defined—including judicial review—and not refer exclusively to the legislative body. The responsibility of the state government to redistrict the congressional seats had been fulfilled, albeit by a state court in the absence of legislative action. Interestingly, the courts ruling on the Texas and Colorado redistricting cases reached fundamentally different conclusions regarding the legitimacy of court-devised congressional districting plans. The federal court in Texas concluded that a judicially-crafted redistricting plan can be considered a remedial solution to congressional districting with an election on the horizon but that such plans must yield to later legislative action. The reference to the legislature of the state in Article I § 4 the U.S. Constitution was taken literally to mean the state's legislative body. Conversely, the Colorado Supreme Court interpreted that passage in Article I § 4 to indicate the general law-making process of the state and not as a specific reference to the state legislature. Each court cited various decisions of the U.S. Supreme Court in support of its interpretation.


Similarly, the two courts reached different conclusions regarding the question of whether states can redistrict for congressional representation more than once in a decade.32 Ironically, the federal court in Texas stated that “no court has, to our knowledge explicitly addressed whether states have the power [to redistrict more than once a decade] under the [U.S.] Constitution.” Although it acknowledged Colorado court's decision in Salazar v. Davidson, the federal court considered that ruling not pertinent because it rested on state law. Instead, the federal court found no language in Title II § 2 of the United States Code that would prohibit a second redistricting and found several U.S. Supreme Court decisions that “either assumed that a state legislature may draw new lines mid-decade or invited a state to do so after the court has drawn a map in a remedial role.”33 And yet the Colorado Supreme Court read the federal statutes—the same Title II § 2 read by the federal district court—to require “Colorado [to] redistrict after each federal census and before the ensuing election.”34 It appears, however, that the U.S. District Court read Title II § 2 more carefully, as the statute includes no provision regarding a calendar for redistricting. Given the regular conflicts over redistricting following congressional reapportionment, it is likely that these issues will arise again in 2011. The frequency of court-crafted or courtadopted redistricting plans in the past signifies the inability of state legislatures to resolve the difficult, highly charged disputes over the location of congressional district lines. There is no reason to believe the post-2010 reapportionment and redistricting will differ significantly. A comparable set of circumstances—divided party control during the initial redistricting followed by unified party control after the next state legislative elections—will certainly lead to other states facing the redistricting issue, and will certainly again require the courts to provide


interpretations of the U.S. Constitution, United States Code, and the applicable state constitution and statutes.

The Electoral Impact in 2004 Robert G. Dixon, Jr., observed that, “Gerrymandering is discriminatory districting. It equally covers squiggles, multimember districting, or simple inaction, when the result is racial or political malrepresentation.”35 Political scientists use a number of criteria for assessing districting plans and “malrepresentation,” but ultimately the question involving partisan gerrymandering is the relationship between votes cast for candidates of a political party and the seats won by that party.36 How did Texas and Colorado Republicans fare in the 2004 elections? The first benefit of the Republicans’ drive for greater control and exercise of political power came before the election when Representative Ralph Hall, one of the Democrats targeted in the redistricting plan, decided in January 2004 to change to the Republican party. Hall, long a conservative Democrat in the Texas delegation, did not explain his shift in redistricting terms. Instead, he claimed that he switched parties because GOP leaders in Congress had refused to place money for his district in an appropriations bill and that “the only reason I was given was I was a Democrat.”37 Thus the partisan balance of the Texas delegation shifted to a sixteensixteen split without an election. While the voting pattern of Representative Hall has always aligned more closely with the Republicans that with the Democrats (his 2003 ADA rating was 15), the balance of the delegation in the important chamber leadership elections changed. Table 1 shows the Republican party’s share of the two-party vote and congressional seats in the 2002 and 2004 elections in Texas and Colorado. The GOP gains in Texas under the new districting plan are clear, as Republicans went from 15 seats to 21 seats—or from 47% to 66% of


the seats—while increasing their vote total by just five percentage points. Stated differently, 2002 election results in Texas showed an eight percent bias against Republicans while the 2004 election results showed a six percent bias in favor of the Republicans. Thus the 2003 redistricting scheme (and pressure on Representative Hall) yielded a 14% increase in Republican fortunes in the Texas congressional delegation. Lest that seem insignificant, remember that nationally the Republicans gained just four seats in the House of Representative while gaining five in Texas alone.

Table 1 2002 and 2004 Election Results in Texas and Colorado*

Texas 2002 Presidential vote House vote House seats 61%** 55% 47% 2004 62% 60% 66%

Colorado 2002 2004 54%** 56% 71% 52% 62% 57%

*Vote percentages exclude third party and independent candidates **2000 presidential vote

Seven Democratic incumbents were targeted in the 2003 redistricting plan, and generally the plan had its desired effect. In addition to Hall’s switch to the GOP, Republicans were successful in defeating four of the targeted Democrats (Table 2). Two Democrats—Charles Stenholm and Martin Frost—were forced to run against Republican incumbents in GOPdominated districts. The only survivors among the targeted Democrats were Lloyd Doggett, who


was elected in a new Austin-area district designed to favor an Hispanic candidate, and Chet Edwards, who prevailed in a Republican-advantaged district by defeating a controversial opponent by a very narrow margin. Across the aisle, Republicans were successful in protecting all of their incumbents.

Table 2 Democratic Incumbents Targeted During Redistricting ADA Rating Ralph Hall Lloyd Doggett Chet Edwards Martin Frost Nick Lampson Max Sandlin Charles Stenholm 15 90 80 95 85 85 60

Seniority 12 terms 5 terms 7 terms 13 terms 4 terms 4 terms 13 terms

Outcome switched to GOP, reelected reelected in new district reelected defeated defeated defeated defeated

While the Republicans’ new districting scheme dealt strong blows to Democrats, it did not alter the gender, racial, or ethnic composition of Texas’ congressional delegation. In both the 108th Congress and the 109th Congress, the Texas delegation included three women and six Latinos; the new Congress has one additional African-American from the Lone Star State.38 Efforts by the Republicans to augment their share of congressional seats without pushing out


minority Democrats—and thereby running afoul of Voting Rights Act provisions—were clearly successful. The impact of redistricting in Colorado is difficult to assess because of the smaller number of seats involved and, most obviously, because the Republicans’ 2003 plan was not implemented. Not surprisingly, all six of the incumbents seeking reelection were successful, most with larger vote totals than they received in 2002 (Table 3). Two of the districts targeted in the 2003 redistricting plan yielded mixed results. Sixth district representative Tom Tancredo, controversial in many ways, won handily although by a smaller margin over an opponent who ran a spirited campaign. In the seventh district, Bob Beauprez demonstrated the power of incumbency by winning easily in the same district he won by just 121 votes in 2002.

Table 3 Colorado Congressional Districts and Election Results 2002 vote 66% 60% 66% 55% 69% 67% 47% 2004 vote 74% 67% dnr 51% 71% 59% 55%

District 1 – Denver 2 – Boulder, Denver suburbs 3- West Slope, Pueblo 4 – northern, eastern Colorado 5 – Colorado Springs 6 – Denver suburbs 7 – Denver suburbs

Incumbent Diane DeGette Mark Udall Scott McInnis Marilyn Musgrave Joel Hefley Tom Tancredo Bob Beauprez

Party Dem Dem Rep Rep Rep Rep Rep


Of greatest interest was the third congressional district, where six-term incumbent Scott McInnis retired. The third district includes some counties along the Continental Divide but is dominated by Colorado’s West Slope, those less mountainous counties west of the Divide where agriculture is a leading component of the economy, and the industrial city of Pueblo. Its political history is mixed: McInnis’ predecessor was Ben Nighthorse Campbell, who was elected to the House of Representatives (and later to the Senate) as a Democrat; while George H.W. Bush in 1988 and George W. Bush in 2000 and 2004 carried the district, Bill Clinton prevailed in both 1992 and 1996. One of the goals of the 2003 redistricting scheme was to make this “safe Republican” territory by removing Democratic-leaning Latino neighborhoods from the third and placing them in the heavily-Republican fifth district. Had that move been successful, the 2004 election outcome might well have been different, as nearly a quarter of the third district’s voters are found in Pueblo County and Democratic candidate John Salazar carried the county by a wide margin. Salazar received 51% of the vote, winning with a 12,000-vote margin district wide. His success in Pueblo County—where he won 62% of the vote and a 17,000-vote margin— undoubtedly made the difference and splitting off a large portion of that margin would likely have given the victory to Republican Greg Walcher. We cannot assume that voters casting ballots for a particular political party in one congressional race would cast the same partisan vote in another, and thus we cannot simply compare the Republican and Democratic congressional votes in the counties comprising the existing and proposed third districts. But we do know that George W. Bush had a 12,000-vote margin over John Kerry in what Republicans proposed as the new third congressional district. It is unlikely that GOP defections in the proposed third district would have been numerous enough to elect Salazar in such a heavily Republican district.


Conclusion The redistricting battles of 2003 offer interesting cases studies. In the end, the Republican success in redistricting Texas contributed significantly to the party’s augmented majority in the U.S. House of Representatives. At a time when Republicans were extending their House majority by four seats, the party gained five seats in Texas through redistricting. Had the courts upheld the redrawing of congressional district lines in Colorado, another seat likely would have been added to the Republican majority. This clearly indicates the ability of a political party to enhance its influence through the legislative redistricting. If nothing else, the redistricting battles in Texas and Colorado illustrate what has long been true. The most purely activity of a legislature is redistricting: The prospect of new district boundaries at the beginning of every decade excites great political passions. States that expect to gain or lose seats feel their status commensurately enhanced or diminished. Political party activists regard redistricting as a critical opportunity for facilitating the election of more candidates from their party. Incumbents are quite naturally concerned for the safety of their own seats. Rapidly growing racial and ethnic groups see the new census as a chance to increase their political leverage.39 To the credit of leaders of both parties, the battles to redistrict Texas and Colorado were never put into any context other than partisan advantage. Democrats decried civility and fairness in the process, feeling their rights were being trampled by the Republican majorities and well-establish procedures were being ignored. But legislative districting is about welding political power in the future, and often the effective use of current power is the means of securing future power. Of course, behind the partisan agenda is a policy agenda that rarely was discussed during the debates over redistricting. The redistricting efforts of 2003 suggest that "politics by other means" is a norm of the political day that has shifted into yet another new category. Little in the debate surrounding


Texas and Colorado redistricting suggested that there was a political agenda other than electing more Republicans to the U.S. House of Representatives. However, the policy consequences of such change are real and important. Politics by other means tactics may signal yet a further separation between political discourse and decision-making in government.



Mark Monmonier, Bushmanders and Bullwinkles: How Politicians Manipulate Electronic Maps and Census Data to Win Elections (Chicago: University of Chicago Press, 2001), p. ix. 2 Douglas W. Rae, The Political Consequences of Electoral Laws rev. ed. (New Haven: Yale University Press, 1971), p. 3. 3 The U.S. Constitution does not speak to the question of single-member districts or at-large elections for the House of Representatives. In 1842, Congress used its authority under Article 1 § 4 to regulate congressional elections to require contiguous, single-member districts; this requirement lapsed but was reinstated in 1967; Andrew Hacker, Congressional Districting: The Issue of Equal Representation (Washington, DC: Brookings, 1964). 4 376 U.S. 1 (1964). 5 Keesha M. Middlemass, "Redistricting and the Justice Department: Voting Rights Policy in Three Southern States," paper presented at the Annual Meeting of the American Political Science Association, Boston Massachusetts, 2002. 6 Colegrove v. Green 328 U.S. 549 (1946). 7 Quoted in Hacker, Congressional Districting, p. 72. 8 Eric J. Engstrom, "Stacking the States, Stacking the House: The Partisan Consequences of Congressional Redistricting in the 19th Century," paper presented at the 2003 Annual Meeting of the American Political Science Association, August, 2003, Philadelphia, PA. 9 David B. Truman, The Governmental Process: Political Interests and Public Opinion 2d ed. (New York: Knopf, 1971), p. 348. 10 Hacker, Congressional Districting, p. 74. 11 Benjamin Ginsberg and Martin Shefter, Politics by Other Means: Politicians, Prosecutors, and the Press from Watergate to Whitewater (New York: Norton, 1999). 12 It appears safe to assume that, had Republicans held complete control of redistricting in Texas and Colorado from the start, the first plans approved would have satisfied the GOP leadership and therefore the issue would not have been revisited in 2003. There is empirical evidence of this occurring in the past. Alan Abramowitz determined that Democrats gained most in the 1982 U.S. House elections in states where the Democratic party had complete control over the redistricting process and gained least in states where that process was under complete Republican control; see: Alan I. Abramowitz, “Partisan Redistricting and the 1982 Congressional Elections,” Journal of Politics 45 (August 1983): 767-770. 13 Fred Brown, "Senate Redistricting Bill is Anointed," Denver Post, October 2, 2001, p. 3B. 14 David M. Halbfinger, "Across U.S., Redistricting as a Never-Ending Battle," New York Times, July 1, 2003. 15 In 2001, Colorado Republicans also held a 36% to 30% advantage over Democrats in voter registration. Texas does not have party registration. 16 Jay Root and John Moritz, "GOP tentatively agrees to remap," Fort Worth Star-Telegram, October 9, 2003, pp. 1,14A. 17 Mike Soraghan and Trent Seibert, "Remap Battle Looms," Denver Post, May 8, 2003, p. 1A. 18 Martinez, "Dems: GOP's Remap Part of National Plan," p. 8A. 19 Avalos v. Davidson, No. 01CV2897, 2002 WL 1895406 (Colo.Dist.Ct. Jan. 25, 2002) and Beauprez v. Avalos 42 P.3d 642 (Colo. 2002). 20 Jay Root and Karen Brooks, "More than 50 stay away, deny quorum," Fort Worth StarTelegram, May 13, 2003, pp. 1, 9A; Jay Root, "Eyes of Texas, US on Truant Legislators," Fort 20

Worth Star-Telegram, May 14, 2003, p. 1; John Moritz, "Democrats flee Texas, new session," Fort Worth Star-Telegram, July 29, 2003, pp. 1, 11A; John Moritz, "Senator to end 5-Week boycott," Fort Worth Star-Telegram, September 3, 2003, pp. 1, 11A. 21 Jay Root and John Moritz, "GOP tentatively agrees to remap," Fort Worth Star-Telegram, October 9, 2003, pp. 1,14A; Jay Root and John Moritz, "GOP unveils new map," Fort Worth Star-Telegram, October 10, 2003, pp. 1, 19-20A; John Moritz and R.A. Dyer, "Senate passes remap, ends legislative battle," Fort Worth Star-Telegram, October 13, 2003, pp. 1, 17A. 22 Jay Root and John Moritz, "GOP tentatively agrees to remap," Fort Worth Star-Telegram, October 9, 2003, pp. 1,14A; Jay Root and John Moritz, "GOP unveils new map," Fort Worth Star-Telegram, October 10, 2003, pp. 1, 19-20A; John Moritz and R.A. Dyer, "Senate passes remap, ends legislative battle," Fort Worth Star-Telegram, October 13, 2003, pp. 1, 17A. 23 In redrawing the election map, the General Assembly removed Democrat Mike Feeley’s home from the seventh district, thereby eliminating a prime challenger to Beauprez. 24 Julia Martinez, "Dems: GOP’s Remap Part of National Plan," Denver Post, May 7, 2003, p. 8A; John J. Sanko and Hector Guiterrez, "Redistricting Plan Spurs Suit," Rocky Mountain News, May 10, 2003, p. 16A. 25 Session v. Perry 298 F.Supp.2d 451 (Tex. 2004). 26 437 U.S. 535, 650 (1978) (citing Connor v. Finch, 431 U.S. 407,415 (1977) (emphasis added). 27 Washington v. Davis 426 U.S. 229 (1976). 28 541 U.S. ______ (2004). Justices Antonin Scalia, William Rehnquist, Sandra Day O’Connor, and Clarence Thomas concluded that the Court should therefore overrule Davis v. Bandemer (478 U.S. 109), in which the Court held that political gerrymandering claims are justiciable but could not agree upon a standard for assessing political gerrymandering claims. Justice Anthony Kennedy concurred in dismissing the complaint Vieth, but concluded that the Court should not foreclose all possibility of judicial relief in political gerrymandering cases. 29 Order list: 543 U.S. (October 18, 2004). 30 A three-judge panel ruled that the federal constitutional issues raised by plaintiffs were settled by the Colorado Supreme Court and stayed any further action until the U.S. Supreme Court might rule on any appeal of that case; Keller v. Davidson 299 F. Supp.2d 1171 (D.Colo. 2004). 31 People ex rel. Salazar v. Davidson 79 p.3d 1221 (Colo. 2003). 32 Both courts ruling on the legal of second redistricting plans recognized this as a central issue. The U.S. District Court in Texas characterized the plaintiffs' claim against mid-decade redistricting "[p]erhaps the most compelling argument" (Sessions v. Perry) while the Colorado Supreme Court term this "[t]he critical question" (Salazar v. Davidson, 1237. 33 Session v. Perry. 34 Salazar v. Davidson 1235 (emphasis added). 35 Robert G. Dixon, Jr., Democratic Representation: Reapportionment Law and Politics (New York: Oxford University Press, 1968), p. 460. 36 See, for example: Abramowitz, “Partisan Redistricting and the 1982 Congressional Elections”; David Butler and Bruce Cain, Congressional Redistricting: Comparative and Theoretical Perspectives (New York: Macmillan Publishing, 1992), chapter 4; Andrew Gelman and Gary C. King, “Enhancing Democracy through Legislative Districting,” American Political Science Review 88 (September 1994): 541-559; Richard G. Niemi and John Deegan, Jr., “A Theory of Political Districting,” American Political Science Review 72 (December 1978): 1304-1323;


Edward R. Tufte, “The Relationship between Seats and Votes in Two-Party Systems,” American Political Science Review 67 (June 1974): 540-554. 37 David Espo and Suzanne Gamboa, "Rockwall lawmaker moves to GOP," Fort Worth StarTelegram, January 3, 2004, p. 15A. 38 Texas Republican U.S. representatives include only one woman, Kay Granger, and one minority, Henry Bonilla. 39 Butler and Cain, Congressional Redistricting, p. 1.


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