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The Tentacle


June 19, 2002

In Gerrymandering, Both Parties Travel The Low Road

Kai Hagen

If you read anything of local news and politics, you already know that the Maryland Court of Appeals has tossed out the state legislature's proposed redistricting plan, throwing upcoming state elections - and candidates - into a tizzie.

Not being a legal term, the court did not use the "g" word - gerrymandering - but everyone paying attention, Democrat and Republican alike, knows that the plan was "fixed" by a majority-Democrat legislature to benefit Democrat incumbents and Democrat challengers...whether they admit it or not.

Duh!

It shouldn't be surprising to anyone that the emperor has no clothes. When it comes to redistricting, the emperor has been unabashedly naked since before 1812, when Massachusetts Governor Eldridge Gerry signed a bill that redistricted the state to benefit his party, the Republican Party. One district appeared to resemble the head, arms, and tail of a salamander - a gerrymander.

The colorful term describes the deliberate rearrangement of the boundaries of congressional and state legislative districts to influence the outcome of elections. The practice has always been a basic part of the American political landscape.

There are a few methods used to gerrymander districts. Each involves creating districts with the goal of encompassing a certain percentage of voters from one political party.

The first is called the "excess vote." It is the concentration of opposition voting power into a few districts, diluting the power of the opposition party outside of those districts.

The second is known as the "wasted vote." This approach involves diluting the voting power of the opposition across many districts, preventing the opposition from having a majority in as many districts as possible.

The third is referred to as the "stacked" method. It involves drawing wildly meandering boundaries to concentrate the power of the majority party by linking distant areas into specific, party-in-power districts.

And finally, when one party canšt control the process, there is always the "sweetheart gerrymander." There is no large change of seats from one party to another. However, each party gets to protect its incumbents. Legislators from the minority party often do not object, even when these arrangements result in some disadvantage to their party, because their first priority is to preserve their own seats.

A review of redistricting appeals over the years and across the country reveals that many highly egregious examples of gerrymandering have passed legal muster. A salamander-shaped district would be mild compared to the tortured geography of some congressional and state legislative districts, past and present.

Neither of the two primary political parties can take the high ground here, or elsewhere, however. Throughout the country, neither has taken the high road to redistricting when they are in driver's seat. Each has become a masterful navigator of well-traveled and long-familiar low roads.

And who can blame them?

We can not expect one party to voluntarily break the chain and become the first to ignore politics as usual. They would only do so at their peril, making an unwise choice to pave the road for their opponents.

It is tempting to say that gerrymandering is illegal. After all, the 1842 Reapportionment Act required that congressional districts be contiguous and compact. And, in 1962, the Supreme Court ruled that districts must follow the principle of "one man, one vote" and have fair borders and an appropriate population mixture. More recently, the Supreme Court ruled in 1985 that manipulating district borders to give an advantage to one political party was unconstitutional. And so on.

But the same court has made numerous decisions that have directly and indirectly contributed to the overall problem, legitimizing various forms of gerrymandering, and rendering other legal lines more vague and subjective.

For just one example, in 1966 (Burns v. Richardson) the court noted that the drawing of district boundaries "in a way that minimizes the number of contests between present incumbents does not in and of itself establish invidiousness."

In fact, an examination of the fairly extensive judicial record on redistricting leaves one with the impression that few plans other than some applications of racial gerrymandering have been struck down. And, in those instances, only in relatively few and more extreme cases where plaintiffs could prove that other "legitimate" districting principles were "subordinated" to race, or in other words, where race is clearly determined to be "the predominant factor motivating the legislature's redistricting decision."

Of course, affected by subsequent judicial precedents, and subordinate to the U. S. Constitution, Maryland law leaves plenty of room for subjective interpretation and manipulation. Entitled "Requirements for districts," Article III, Section 4 of the Maryland Constitution simply says "Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions."

The Maryland Legislature and the majority party have done what everyone does, and has always done, and what the Republican party would have done were they in the majority. Given the history and circumstances, it would be unreasonable to expect anything else.

What is somewhat surprising is that, in this instance, the Maryland Court of Appeals actually acknowledged the obvious, officially declaring that the emperor had no clothes.

Legal challenges to redistricting plans have become increasingly common as the practice has become more and more brazen, and the results more and more absurd.

Nevertheless, perhaps the plan developed and presented by Governor Parris N. Glendening, and approved by the Maryland Legislature, just happened to be the straw that broke the camel's back. As things got worse, it had to happen, eventually.

Or perhaps, as the Democrats expected, the plan would have survived challenges and squeaked through judicial review if not for the festering antagonism between Senate President Mike Miller and the appellate court judges.

If that was not sufficient, perhaps the last straw came when Senator Miller and a handful of other legislators contacted appeals court judges to discuss and influence the redistricting case.

We'll probably never know.

What we do know, though, is that the same lack of legal certainly that made such gerrymandering inevitable (and normal) gave the appellate judges a legal basis to toss out the redistricting plan.

Of course, that is a cynical and political perspective.

But we ARE talking about politics here.

So when Maryland Republican Chairman Michael S. Steele says, "The arrogance of the Democrat power structure has finally caught up with them," let's remember that after the last census, U.S. House Majority Whip Thomas DeLay, a Republican, gave a speech to the majority-Republican Texas state legislature urging them to use redistricting to dramatically increase the number of their Republican House seats.

Gerrymandering is politics. It is partisan politics. It is business-as-usual partisan politics.

And it does a disservice to us all.

But we can't really blame the parties.

We have to change the laws that make gerrymandering not only a political reality, but also a political necessity.

Current laws make it clear that those drawing district lines wield more influence over which political party represents most districts, and most voters, than the voters themselves. As the district court concluded in Bush v. Vera (yes, that would be George W. Bush, then governor of Texas), involving Texas' congressional districts, "The final result seems not one in which the people select their representatives, but in which the representatives have selected the people."



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