Congressional Authority to Require State Adoption of Independent Redistricting Commissions
Bates, Ryan P., Duke Law Journal
The continuing antics of redistricting and re-redistricting following the 2000 census and the Supreme Court's recent decision in Vieth v. Jubelirer (1) have again pushed the issue of gerrymandering of legislative and congressional districts into the public consciousness. Unlike the upheaval that followed the 1990 census, (2) however, neither prominority nor promajority racial gerrymanders reemerged as the defining issue of the post-2000 redistricting cycle. Instead, the polarizing debate this time around has centered on the issue of the partisan gerrymander: the manipulation of a state redistricting process by a party or political faction to ensure that it will capture more than its "fair" share of the resulting districts in subsequent elections. The most egregious example of the decade thus far occurred in Texas.
It was not until 2003 that the Texas legislature finally got serious about congressional redistricting. Although legislators had attempted to draw districts during the 2001 session, partisan deadlock prevented the adoption of a congressional redistricting plan, requiring a three-judge federal district court to draw the plan used in the 2002 congressional elections. (3) Under this plan, which "applied neutral districting factors," Texas elected seventeen Democratic and fifteen Republican congressional representatives. (4) But following the Republican sweep of both houses of the Texas legislature and all major state executive offices, (5) pressure from U.S. Representative Tom DeLay and other national Republican leaders to solidify the COP margin in the U.S. House of Representatives propelled the Texas Republican leadership to revisit redistricting. (6) A first attempt was stymied when the Texas House Democrats fled the state to deny the legislature a quorum until the regular session expired, (7) forcing Governor Rick Perry to call special legislative sessions to pass the plan. In the first special session, Democrats invoked an informal Senate supermajority requirement to prevent adoption of a plan; (8) in the second, the Senate Democrats fled the state, depriving the Senate the necessary two-thirds quorum. (9) After a forty-five-day standoff, a Democratic state senator broke ranks and returned to Texas, (10) allowing Governor Perry to call a third special session. Only after the presiding officer changed the chamber's cloture rule could the Senate pass redistricting legislation on a virtually party-line vote, with a lone West Texas Republican joining the Democrats in opposition. (11)
The plan that Governor Perry signed into law (12) sought to shift the partisan makeup of the Texas congressional delegation from seventeen to fifteen in favor of Democrats to twenty-one to eleven in favor of Republicans, mostly by taking deliberate aim at white Democratic incumbents. (13) The legislative counsel to Republican Representative Joe Barton described it as "the most aggressive map I have ever seen.... This has a real national impact that should assure that Republicans keep the House no matter the national mood." (14) The Nineteenth District, formerly drawn around Lubbock, now slithers eastward some three hundred miles. (15) Metropolitan Austin, formerly a single district, was drawn and quartered--portions now belong to one district that reaches one hundred and fifty miles east to Houston and to two others that stretch more than three hundred miles south to the Mexican border, (16) a configuration that has invited comparisons of South Texas with "a pinstripe suit." (17) But the distortions of the map were not simply geographic--for example, Representative Martin Frost, a Dallas Democrat reelected in 2002 with 65 percent of the vote, (18) was thrust into a new district with a 63 percent Republican registration. (19) Because Frost's former district "simply disappear[ed]," most of his former constituents were shifted into two Republican-dominated districts and one preexisting majority-minority Democratic district. …