Redistricting, Part I

Last year there was a lot of talk about the Census and who gets counted. Trump and members of his administration (think Stephen Miller) tried to pretend it was proper to count only citizens and limit the time spent on making an accurate count. Now the counting is over and the States (and governmental subdivisions of States) have begun the process of redistricting, a process to which we should pay attention. This year’s process of redistricting is the foundation of our representation at all levels of government for the next ten years. 

The U.S. Constitution, in Article I, Section 2, specifies the process of “Enumeration” (Census) of “Persons” living in each State and apportionment (or re-apportionment) of Representatives to those States based on the Enumeration done every ten years. (Infamously, Article I, Section 2 also specifies slaves to be counted as 3/5 of a person for the purpose of this Enumeration and that “Indians not taxed” are not counted at all. Both clauses were superseded by subsequent Amendments and legislation, but the clauses remain.) The decadal Enumeration of Persons (Census) is used to determine the apportionment of the 435 voting U.S. Representatives among the states. How these Representatives are elected and whom they represent was originally left almost entirely to the States: “…the Electors [those eligible to vote] in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Until long after the Civil War that sentence left to each State how it wanted to 1) establish the qualifications for voters and 2) decide whether to elect Representatives at large from within its boundaries or divide itself into Congressional Districts. For example, until 1959 Washington State periodically elected some or all the Representatives apportioned to it using a statewide, “at-large” electionrather than assigning a specific geographical Congressional District. An Act of the U.S. Congress in 1967, 2 U.S.C. ยง 2c, required that States establish geographic, single Representative Congressional Districts (except for States having only one Representative, currently 7 States). Other details of Congressional Districts, for example, the principle of an approximately equal population per District, were established by Supreme Court cases in the 1950s and 1960s (for example, Wesberry v. Sanders, 1964). These cases were largely based on the Warren Court’s interpretation of the Equal Protection Clause of the 14th Amendment, adopted in 1868, one of the three (13th, 14th, and 15th) Amendments adopted in the wake of the Civil War.

In Wisconsin where I grew up in the 1950s and 60s, “Impeach Earl Warren” signs were not unusual, nor were loud denunciations of the Warren Court’s “judicial activism”. It is embarrassing to me to realize that it has taken me fifty years to understand exactly what these signs and denunciations were railing against. The 14th Amendment and its Equal Protection Clause had essentially lain dormant between 1868 and 1954. That span of time included the Jim Crowe era, essentially an extension of slavery under a new set of rules. In 1954, the first full year of the Warren Court all nine justices agreed in Brown v. Board of Education that the Equal Protection Clause of the 14th Amendment made racial segregation in public schools unconstitutional. That was the opening salvo in asserting the rights guaranteed under the the 14th Amendment and essentially ignored for 80 years. The U.S. Supreme Court under Earl Warren (between 1953 and 1969) first established the Equal Protection Clause as a basis for judicial review of redistricting (Baker v. Carr, 1962). The Court went on under the same reasoning to establish the principle of “one person, one vote” and applied it the size of Congressional Districts (Wesberry v. Sanders) and the size of state legislative districts (Reynolds v. Sims). Meanwhile, enlivened by the Warren Court, Congress passed the Voting Rights Act of 1965 by wide bipartisan voting margins in both chambers.

Amendments to the U.S. Constitution, like the 14th, are meant to have the same force as the original document. The whole clamor against the Warren Court was, at its base, about interpretation and enforcement of the 14th Amendment, an Amendment originally adopted to ensure that Americans enjoyed Equal Protection (including equivalent levels of representation in government) under the law. Little did I realize until just now that the Warren Court’s decisions and the Voting Rights Act shaped my perception of the America in which I grew up, an America whose first principle (I naively thought) was that all people are created equal and entitled to the same rights, including the right to equal representation. 

Those who cry “States’ Rights” argue in part for the supposed autonomy of a State legislature under Article I, Section 2 and the Tenth Amendment to determine Congressional Districts and state legislative districts as the state legislature sees fit, for example, regardless of the size of the included population and intentional disenfranchisement of voters by gerrymandering. States’ Rights enthusiasts rail against federal oversight mandated by the Voting Rights Act and the 14th Amendment that supports it. (Redistricting oversight was gutted by the Supreme Court decision Shelby v. Holder in 2013, a negation that could be reversed with passage of H.R. 1, the For the People Act–but, since all Republicans are adamantly opposed, still clinging to baseless claims of election fraud, H.R. 1 passing the Senate would first require doing away with the obstructionist Senate filibuster.) Modern States’ Rights advocates would never openly say so, but their argument around state autonomy in redistricting is a direct descendant of our legacy of slavery and Jim Crow, the “right” of States to subjugate certain classes of people. 

All redistricting is and always has been about political power, mostly the retention of political power. Riding on rhetoric about States’ Rights, Republicans approached the 2010 state elections as an opportunity to take over state houses and control redistricting in select States. With REDMAP (worth a read) and newly available mapping software the selected States (ones that retain legislative control over the redistricting process) were able to ensure preservation of a state house Republican legislative majority despite garnering far less than a majority of the total votes cast in the state.  Republicans’ REDMAP proved that computerized gerrymandering can be so successful in the right circumstances that the result draws unwanted attention. Best of all from the Republican perspective, the computer drawn districts were just subtle enough so the U.S. Supreme Court in Gill v. Whitford (2018) said they couldn’t decide whether the partisan gerrymandering of Wisconsin was extreme enough to be judged unconstitutional. The Supremes sent it back to the lower courts.

Bottom line: Redistricting is a battle between fairness to voters and politicians’ desires to gain and maintain power. Redistricting deserves our close attention, lest we find ourselves playing by a new set of disadvantageous district lines. 

I plan to follow this post with a deeper dive into apportionment and redistricting among the States and then focus on some of the specifics of redistricting in Washington State. Narrowing to one State is necessary because each State redistricts by its own set of rules. Until then, 

Keep to the high ground,