With all due respect, I don't think that this genie can be put back into the
bottle. Urban counties must be split -- and in many cases were split prior
to 1960s -- else we would have severe malapportionment. Once a decision is
made to split counties, the choice of which counties to split and the
interior manipulation of county population offer wide latitude for
gerrymandering. I'll attribute this example to Sam Hirsch, although he is
free to speak for himself: Michigan ostensibly had a requirement that
minimized county splits for their state legislative districts in the last
redistricting. Despite this requirement, the two political parties were
capable of drawing maps with dramatically different partisan effects, with
similar low numbers of county splits. So even if we could convince
political parties in states without the initiative to amend their state
constitutions to require minimizing county splits, it is not clear that such
a policy would limit gerrymandering in any meaningful way.
That said, I am personally in favor of allowing states some leeway to permit
1% population deviations for congressional districts in order to keep
counties whole or for other ligitimate purposes, such as reducing
administrative overhead by respecting existing precinct boundaries. Many
people on this list have noted that census data is dated even before it is
released and contains survey methodology and other errors. Most of this
measurement error is small; but since we know the error exists, why demand
fictictious zero population deviations for congressional redistricting?
(And when will someone challenge Arkansas' congressional districts, which
have non-zero population deviations and respect county boundaries?)
------------
Dr. Michael P. McDonald
Assistant Professor, George Mason University
Visiting Fellow, Brookings Institution
Mailing address:
(o) 703-993-4191 George Mason University
(f) 703-993-1399 Dept. of Public and International Affairs
mmcdon@gmu.edu 4400 University Drive - 3F4
http://elections.gmu.edu Fairfax, VA 22030-4444
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-
law_gl@majordomo.lls.edu] On Behalf Of ban@richardwinger.com
Sent: Tuesday, December 20, 2005 11:40 AM
To: election-law@majordomo.lls.edu
Subject: why an activist decision in the Texas redistricting case is
justified
U.S. House of Representatives elections, in the past,
were fluid and competitive. One simple way to show
how much more fluid these elections were in the past
is to note the frequency of a change in the majority
party in the House.
Party control of the U.S. House shifted 25 times
before the U.S. Supreme Court ruled that congressional
districts must be equal in population in 1964. In 175
years between 1789 and 1964, that was an average of a
shift every seven years. But in the 41 years since
Wesberry v Sims, party control of the U.S. House has
only shifted once, in 41 years.
Before 1964, congressional districts almost entirely
followed county boundaries (except in big cities,
which had to be subdivided). See Kenneth Martis's
Historical Atlas of Political Parties in the U.S.
Congress, which has maps of all the districts back to
1789; or see any set of old election returns for US
House, which invariably show very, very few split
counties. I suspect many, if not most, states had
laws requiring or encouraging that county boundaries
be respected when congressional districts were drawn.
Because of Wesberry v Sims, the idea that county
boundaries should be respected when US House districts
are drawn was discarded. That opened the door very
wide for manipulation of boundaries for political
purposes (whether concerning race, or partisanship, or
protection of incumbents).
The grass roots solution to the problem of
non-competitive US House elections was to pass
initiatives in almost all the states that have the
initiative, to impose term limits on congress. But
the US Supreme Court invalidated them in US Term
Limits v Thornton in 1995.
So, the country's US House elections are in a mess,
because of activism by the US Supreme Court in the
"one man, one vote" and term limits decisions. The
Court owes us some relief for the mess that it has
created. By "mess", I don't so much mean partisan
gerrymandering, as a whole set of laws that has grown
up to make it almost impossible for incumbents in the
U.S. House to lose.
I am not opposed to the activist decisions I mentioned
above. I want more judicial activism. It is wildly
inconsistent of the Court to throw out term limits,
and yet refuse to disturb the Georgia law that has
kept all parties, other than the Democratic and
Republican Parties, out of US House elections in that
state in the entire 63-year history of the Georgia
ballot access law.
The 25 instances before Wesberry v Sims, in which
control of the US House changed parties, are 1792,
1794, 1800, 1824, 1826, 1840, 1842, 1846, 1848, 1854,
1856, 1858, 1874, 1880, 1882, 1888, 1890, 1894, 1910,
1918, 1930, 1946, 1948, 1952, 1954. The only instance
since then is 1994.
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