The Supreme Court has given an early Christmas present to American representational democracy. (It was in deference to Speaker Dennis Hastert (R-Ill.) that I did not write "holiday present.") The court's stunning decision to take up the Texas re-redistricting case creates an opening to reconsider both the legitimacy of a second redistricting in a decade as well as the broader issue, left hanging in the Vieth v. Jubelirer case earlier this year, of the court's framework for considering redistricting more generally. The two are very much related--and should have, for the Senate, a direct link to the upcoming confirmation hearings of Judge Samuel Alito for the seat on the Supreme Court.
The common link is the Supreme Court's reliance on "one person, one vote" as the linchpin of redistricting, which dates back to the 1962 decision Baker v. Carr, followed by Reynolds v. Sims. Given the long history of state legislative districts with wildly different populations--something that created dramatic diminution of representational power for many voters--one person, one vote was a compelling standard. But since Baker and Reynolds, it has become a monomaniacal standard, well beyond rationality or reason.
For decades now, the court and lower federal courts, following its lead, have thrown out redistricting plans for Congress that deviated by 15 or 20 people out of districts of 500,000 to 600,000 in population, even if those plans were otherwise reasonable and balanced. And the courts have embraced plans that, via census tracts, have been virtually identical in population, even if those plans did violence to communities of interest, contiguity of districts or competitiveness.
In practical terms, what the monomaniacal reliance on one person, one vote has meant is that partisan redistricters have been able to take powerful computers and census information and manipulate districts to fit their interests, knowing that all they had to do was get the population numbers just right. Nothing has done more to create the current structure of districts--roughly 25 to 30 of 435 genuinely competitive in general elections, the rump collapsing center in Congress--that has shaped the polarized Congress we have now.
With so few genuinely competitive seats, the framers' concept of the House as the body responsive to public will, through frequent elections that can bring about rapid change when voters want it, has been decimated. We could easily have an election with a sharp public desire for change and the result of virtually no change.
We live in perhaps the most mobile country in the world. Americans move--a lot. So before the ink is dry on census forms, the population of districts has changed, in some cases pretty substantially. Thus, a strict reliance on numbers is absurd. It would be one thing to tolerate a system in which one Congressional district had 300,000 in population and another had a million, giving the former district's voters three times the power of the latter's. But given the reality of mobility, having variations in the hundreds of voters, if doing so means meeting other standards like keeping communities together, should be perfectly tolerable.
Now let us turn to the re-redistricting carried out in Texas. Since 1910, when the House was fixed in size at 435, the norm has been that a census is followed by reapportionment across states to fit the population, and is followed in turn by redistricting within the states. After 1910, no state undertook a second redistricting within the 10-year period between censuses except when ordered by the courts for reasons of voting rights.
Texas breached that near-century-long compact at the instigation of then-House Majority Leader Tom DeLay (R-Texas). That development involved moves that ultimately resulted in DeLay's indictment by a Texas grand jury. Now we have learned that a politicized Justice Department greased the skids for DeLay's plan, which was put forward to trump plans that were accepted by the Texas House and Senate, in a bid to squeeze even more Republican seats out of the process. In doing so, the department overruled a unanimous professional staff recommendation that the DeLay plan violated the Voting Rights Act.
But put those issues aside, and consider a re-redistricting in light of the one person, one vote framework and the reality of population movement. If populations have shifted significantly right after a census is done and a redistricting plan is crafted, imagine how much populations can and do shift over three years. In the case of Texas, we know that between the census and the adoption of the DeLay plan, 1 million Hispanics moved into Texas--and were not counted or considered in the districts created. If there is any real meaning to the notion of one person, one vote, this makes a powerful case for disallowing any re-redistricting.
Re-redistricting is damaging to representative democracy for other reasons, too. What Texas did triggered many other states, including Colorado and Georgia, to start their own re-redistricting efforts. Before long, there will be third and fourth bites of the apple, if the partisan composition of state Legislatures change from one cycle to the next. Voters could find themselves in three or four different districts over the course of a decade, with three or four different Representatives, and little likelihood that they will even know who represents them from one year to the next, or that they'll have any chance to hold their Representatives accountable in the next election.
The Texas case allows the Supreme Court both to revisit the re-redistricting issue and to rethink and perhaps reformulate the standards by which redistricting plans are judged. It is time to say that one person, one vote is important, but should not be taken to an extreme--and to insert other values, such as communities of interest and competitiveness, back into the process.
When a 1985 letter by Alito surfaced, in which he showed his displeasure with the Supreme Court decisions on one person, one vote, many Democratic Senators reacted sharply, saying that was a make-or-break issue for them. It should be--if he rejects one person, one vote entirely. But a more nuanced understanding of this standard on his part would be a positive, not a negative. This issue should be a core part of the dialogue with Alito: What does he think of a monomaniacal application of the standard? And what about other standards? Senators of both parties should make sure that the redistricting question gets a full airing in the hearings.
One final note: I had planned to write this column on the excellent tax reform proposal by Sen. Ron Wyden (D-Ore.) and the reality that even in this polarized, partisan environment, there are opportunities of major policy advancement on common ground. Then came the court's decision to hear the Texas case. I will do the tax reform column soon--but it is looking more and more to me as if I will have grist for several more columns before Congress adjourns.
Norman J Ornstein is a resident scholar at AEI.