Subject: why an activist decision in the Texas redistricting case is justified
From: "ban@richardwinger.com" <richardwinger@yahoo.com>
Date: 12/20/2005, 8:40 AM
To: election-law@majordomo.lls.edu
Reply-to:
ban@richardwinger.com

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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