Winning the Future? Redistricting and Partisan Bias

This chapter examines the extent to which partisan redistricting creates long-term distortions in congressional elections compared to other types of redistricting. The Supreme Court's failure so far to agree on a coherent and definitive test with which to adjudicate the issue of partisan gerrymandering has been predicated in large part on the absence of evidence of pervasive and long-lasting effects sufficient to meet the Davis v. Bandemer standard. It is thus necessary to determine exactly how effective partisan gerrymandering has been in terms of its long-term benefits to the gerrymandering party. This chapter considers the effects of control of redistricting on aggregate electoral disproportionality and partisan bias, as well as on the outcomes of elections in individual congressional districts. In particular, it discusses the probability that the Democratic Party candidate will win the election in a House district in a given year. The results suggest that partisan gerrymandering can produce a small but sometimes persistent bias in favor of the party that implemented the redistricting plan.

Conclusion

This book has investigated the consequences of partisan control of the redistricting process for the outcome of congressional elections in the 1990s and 2000. The evidence it has presented contradicts much of what has been written on the redistricting process, including the oft-repeated claims that partisan gerrymandering influences the results of subsequent elections and undermines electoral responsiveness. This concluding chapter summarizes the book's findings and discusses their applicability to the present redistricting cycle that began following the 2010 Census. It also considers some policy implications that these findings may have for the redistricting reform movement and debates over the proper way to redraw electoral boundaries in a democratic system. It suggests that reformers should focus on how the redistricting process can be modified to prevent the subversive effects of incumbent protection gerrymanders. Finally, it outlines some potential directions for future research on this topic.

Introduction

As the results of the 2002 election flashed across their television screens, Texas’s congressional Republicans could be forgiven for feeling a certain amount of dissatisfaction with the redistricting process in the United States. Their party had seen its share of the statewide vote in U.S. House elections increase from 49.8 percent in 1992 to 54.9 percent in 2002. Yet, even with this latest ten-point victory over the Democrats in the popular vote, they had once again failed to convert their increasingly dominant electoral support into a Republican majority in the state’s congressional delegation. A partisan gerrymander, passed in the wake of the 1990 Census and left largely intact by the district boundaries implemented by the federal courts following the 2000 Census, had allowed the Democratic Party to maintain its overall majority in the Texas delegation for more than a decade. The Democrats won twenty-one of Texas’s thirty seats in Congress in 1992, and managed to retain control of nineteen in 1994 and seventeen from 1996 to 2000, despite averaging just 45.8 percent of the two-party vote in these elections. In 2003, the Texas Republicans, armed for the first time with control of both houses of the state legislature and the governorship, undertook an unprecedented mid-decade redrawing of the state’s congressional boundaries. Though many Republicans in the state government were opposed to the idea of redrawing the district boundaries mid-decade, the effort was initiated under considerable pressure from Republicans in Congress, most notably House majority leader Tom DeLay (...

The Unrealized Precedent of DAVIS V. BANDEMER

This chapter examines the involvement of the Supreme Court of the United States in litigation relating to partisan gerrymandering, paying particular attention to a case that attempted to apply the previously established Davis v. Bandemer precedent to congressional elections: Vieth v. Jubelirer. It begins with an overview of Badham v. Eu, which arose from the redrawing of California's congressional districts in the aftermath of the 1980 census and its most significant holding: that the Bandemer precedent, which had initially been applied to the drawing of state legislative districts only, also extends to the drawing of congressional districts. The chapter then considers the circumstances surrounding the Vieth case, in which the alleged political gerrymander concerned the reapportionment plan for the congressional districts in the state of Pennsylvania rather than those for the state assembly. It also analyzes the Supreme Court's 2004 decision in Vieth, focusing on Justice Antonin Scalia's plurality opinion and Justice Anthony Kennedy's concurring opinion.

Redistricting, Electoral Responsiveness, and Democracy

This chapter examines the effects of partisan gerrymandering on electoral responsiveness and the competitiveness of congressional districts when compared to bipartisan redistricting. Through systematic empirical analysis, it also considers the unintended consequences that the recent emphasis in the redistricting reform movement on advocating the use of independent or bipartisan commissions may have for subsequent congressional elections. The results support the theoretical assumption that bipartisan redistricting is more likely to protect incumbents due to collusion between the parties, whereas partisan redistricting is more likely to make incumbents of both parties vulnerable due to the emphasis on partisan advantage. Partisan redistricting contributes positively to the health of democracy by increasing electoral responsiveness in subsequent elections compared to bipartisan redistricting. Hence, the biggest threat to democracy, in the form of the subversion of electoral competition, is not partisan gerrymandering but bipartisan redistricting. The chapter suggests that redistricting reforms should focus on reducing the adverse effects that bipartisan redistricting has on electoral competition.

Second-Order Challenges and the Rise of Mid-Decade Redistricting

This chapter examines the rise of mid-decade redistricting by focusing on the decision of the Supreme Court of the United States in the 2006 case of League of United Latin American Citizens v. Perry. Both Davis v. Bandemer and Vieth v. Jubelirer approached the question of partisan gerrymandering of congressional boundaries through the framework of the so-called first-order equal protection review, assessing the direct effects of a challenged redistricting plan on voters' ability to elect representatives of their choice. The 2004 case of Cox v. Larios demonstrates an alternative conceptual approach to the issue of political gerrymandering, one that has proven considerably more successful at striking down partisan gerrymanders than the strategy of claiming equal protection relief under the Bandemer precedent. This chapter discusses Justice Anthony Kennedy's majority opinion in LULAC vs. Perry and argues that the federal courts have failed to overturn a gerrymander because their effects are generally not that long-lasting. This conclusion is bolstered through case studies of the states of Pennsylvania and Texas.

A Theory of Constrained Redistricting

This chapter discusses the theoretical argument that congressional redistricting, whether by a single party or by other means, is a fundamentally constrained activity, along with the implications of these constraints for both partisan bias and electoral responsiveness. Four categories of constraints on the redistricting process are discussed: political constraints, legal constraints, structural constraints, and geographic constraints. The chapter considers a necessary condition for the implementation of partisan gerrymandering: one political party should control each of the political branches of state government (both legislative chambers and the governorship) at the time of reapportionment following the decennial census. It also examines the argument that the redrawing of electoral boundaries is also constrained by the fundamental tension between the competing interests of partisan advantage and incumbent protection; the impact of the Voting Rights Act of 1965 and population migration on the redistricting process; and how partisan bias arises under a limited set of circumstances.