The redistricting mess

Dear Readers, What a mess! Texas heeds the call of President Trump to redistrict (a move never previously done) before the midterms; Gov. Newsom rides into battle with California, matching that political gambit. We are now in the middle of a “hot” war to redistrict the “other team” out of power.

The federal government has very little statutory authority over elections. There are some procedural rules, the Electoral College is a federal creature (although the various states choose electors), and you cannot deny citizens the right to vote – that’s about it. The rest of our election infrastructure is left to the power and responsibility of states to police.

The Constitution does order the states to redraw their congressional districts every 10 years after a national census. Thanks to the Permanent Apportionment Act of 1929, Congress set the number of representatives in the House of Representatives at 435 members.  Before that, there was no fixed number of representatives.  

Congressional districts are set and drawn based on population. Each state is guaranteed at least one representative, as in the lightly populated states of Alaska, Delaware, North Dakota, South Dakota, Vermont, and Wyoming. 

The individual state legislatures draw the boundaries of each district. A state is assigned its number of districts according to the Huntington-Hill method.  This is a mathematical formula we adopted in 1941, which first sets aside the 50 guaranteed districts (one per state) and then calculates priority for the remaining 385 seats based on a state’s population count.

Every 10 years, our Constitution requires a national census, the population count is plugged into this formula, and the number of congressional seats is allocated. As the district universe of 435 is fixed, a state may have a seat added or subtracted based on the flux in its population. Florida, Texas, and California keep growing, so they tend to have seats added; cold-weather, industrial states, like Michigan, Illinois, and New York, have had their population shrink and are losing seats to warm-weather “Sun Belt” states … like, here, in Georgia.

In drawing a State’s congressional map, there are very few restrictions.  The Voting Rights Act hangs by a thread, but it broadly prevents “cracking” a racially contiguous district with minority voters reallocated, thus diluting their political power. Louisiana’s congressional map was recently thrown out by the 5^th Circuit Court of Appeals for this reason.

A case called Baker v. Carr requires that each district be roughly equivalent in population.  Hence, you cannot have one representative representing, say, 100,000 people, and a neighboring one representing 500,000.  This does not, however, necessarily require uniformity nationwide.  For instance, New York’s districts have approximately 700,000 citizens each; Alaska’s population is 740,000, and Vermont’s is just under 650,000.

The voting population of a state is irrelevant in allocating the number of representatives.  “Population” is not defined by the Constitution by voters (or electors); it is not defined by citizens. It is simply defined by the number of people. This would include legal and illegal immigrants, and it would also involve children, even newborns.

The Decennial Census is necessarily an imperfect herculean effort.  Yes, some people will dutifully (and accurately) fill out their forms. But people are missing.  Immigrants, especially those here illegally, will evade reporting.  Our homeless population may never even be contacted.  Some may not know what to do or forget. This means that “raw” data must be mathematically projected by bureaucrats, which is becoming a bit of a political football.

Gov. Abbott decided what was best for the people of Texas in calling its state assembly into a special election; Gov. Newsome decides it is in California’s best interests to have a special session to undo a decades old Constitutional Amendment mandating its political districts are fairly and impartially drawn. “Red” states respond to the command of their party leader (the President) to redistrict; “blue” states react by trying to undo their attempts at fairly drawn districts.  

Sadly, they can do this. You would think the courts would step in to stop this madness. However, they have (probably fairly) taken the position that the judiciary has no power to undo politically motivated congressional maps.

Is this schoolyard bullying good for the country? I think not. But it is perfectly legal as long as we permit it.  Ultimately, it falls to us to stop it; we may have to do so in order to save our democracy.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.