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A Narrow Window of Opportunity for Fair Redistricting

Over the next year or two, Members of Congress will have a rare opportunity to rein in a system that has run amok.

In too many states, Congressional district lines are a joke, and we need to take steps to ensure that the next round of redistricting — after the 2010 Census — isn’t merely another test of partisan mapmakers’ ability to gerrymander themselves into complete security.[IMGCAP(1)]

Other than the election of a chamber’s leaders, redistricting is the most fundamentally partisan act in which lawmakers engage. The development of computer technology has made it easier for mapmakers to draw districts with a near-guaranteed Democratic or Republican election performance, thus creating districts that are rarely if ever politically competitive.

Mapmakers cast aside communities of interest and political boundaries in favor of one factor: partisanship. The result is the creation of districts shaped like snakes or long fingers that reach out to grab a city or a suburb in an effort to create a predetermined partisan mix. Arguably worse is the uncontrolled desire to maximize partisan advantage by engaging in mid-decade redistricting, such as the one that took place in Texas last year.

It’s time for legislators to enact guidelines governing the next round of redistricting so that the mischief that mapmakers can make is limited. Since it’s unlikely that 50 state legislatures will do so, Congress should pass legislation requiring compact and contiguous districts. This would still allow states considerable leeway in the drawing of districts, but it would eliminate the worst examples of abuse.

Congress should also take steps to limit redistricting to once per decade. The courts have ruled that Texas’ Legislature was entirely within its rights to redistrict in mid-decade, but that doesn’t mean that mid-decade redistricting is desirable.

As it happens, multiple redistrictings during a decade in state after state might be good for my business, but they inevitably create grudges and bitterness in state legislatures and on Capitol Hill.

How long is the window of opportunity for redistricting legislation going to be open? Probably for a year or two, and no more, says veteran Republican redistricting lawyer Mark Braden.

“Once you get into 2006, people start calculating who’ll be governor and who will control the state legislature,” Braden notes. And when political insiders figure they know who’ll be in charge in 2010, those who expect to be in control won’t be willing to accept changes in the rules of the redistricting game.

Other lawyers I have talked with — Democratic lawyers — are less optimistic that there is much of a window at all. They note that incumbents make the rules, and incumbents of both parties seem quite content with the incumbent-safe districts that now exist — consider California, in which both parties collaborated on enacting an incumbent-friendly Congressional plan. The lawyers also argue that House Majority Leader Tom DeLay (Texas) and his Republican colleagues aren’t likely to buy into new standards after the GOP’s recent success in playing redistricting hardball in Texas.

Yet ironically, I’d argue that it’s exactly those Republicans who should rush as fast as they can to enact a new system that sets standards for redistricting.

The recent 5-4 decision in the Supreme Court’s Vieth case should have conservatives quaking in their boots.

While the Pennsylvania redistricting case ostensibly went the GOP’s way — the Supreme Court did, after all, refuse to throw out the state’s Republican-drawn lines — the narrowness of the majority and the inability of the court to cobble together a genuine majority that agreed that redistricting should be outside the court’s purview suggests that if Congress doesn’t act to establish standards, sooner or later the court will.

I’m under no illusion that Congressional guidelines would free redistricting from the courts’ oversight, since the loser in any given redistricting battle will inevitably be able to complain that a district is not sufficiently compact or contiguous. The reality is that too many judges long ago jettisoned the idea of judicial restraint, and some judge somewhere will surely decide that he or she knows better than legislators about how to draw districts.

But Congressional action would at least give judges something to rely on beyond their own whims. A standard would offer judges something to go on as they evaluate redistricting plans.

I’m also quite aware that Congressional action that sets standards of compactness and requires respect of geographical subdivisions wouldn’t eliminate partisan redistricting juggernauts. Mapmakers would still have plenty of options for drawing districts to their advantage, and their goal — creating the most favorable districts for their party — wouldn’t change a bit. Still, federal statutes would have a good chance of eliminating the ugliest maps, such as those in Florida and Georgia.

Democrats note that compactness might not be the most important end in itself. They argue that other considerations, including minority representation, are just as important. They have a point. It’s just not one I share.

But even if you grant their concern, any number of other standards could be used by legislators to draw districts, and I’m more concerned that they pick some of them rather than leaving the current system in place.

Unfortunately, the only rationale for acting is fundamental fairness and decency. Come to think of it, that offers an awfully small window after all.

Stuart Rothenberg is editor of the Rothenberg Political Report.

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