Posted on January 13, 2004

by

Daniel Clark

When Democrats suffer a political defeat, they know that it must be due to a flaw in the system. The 2000 presidential election provided numerous examples of this: those butterfly ballots were confusing; there weren't enough recounts done; "intended votes" weren't counted; not enough states allowed felons to vote; the electoral college is archaic and unfair; etc.

During the 2002 Senate race in New Jersey, polling data told the Democrats that the winner of their party's primary, scandal-ridden incumbent Bob Toricelli, was going to lose, so they decided to replace him on the ballot. Party leaders talked Toricelli into stepping aside, so that former senator Frank Lautenberg could run in his stead. Unfortunately, the state's deadline for replacing a nominee was within 51 days of an election, and Lautenberg's attempted entry came 35 days before election day. Since this meant that the law must have been wrong, the Democrats appealed to the New Jersey Supreme Court, which happily exempted Lautenberg from the law, just as the Florida Supreme Court had done for Al Gore two years earlier.

The New Jersey court argued that the law must be "liberally construed to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day."

There's no way to "liberally construe" a rigid deadline. When the law says 51, that cannot be "construed" to mean 35. What the justices really meant was that they found the law inconvenient, so they dispensed with it.

The courts do not and cannot demand that each party field a candidate for every race. However, the Democrats then held a one-vote advantage in the Senate, and were in danger of losing control to the Republicans unless they were allowed to throw in a ringer at the eleventh hour. While the justices gave lip service to the voters, what they actually determined, by a 7-0 ruling, was that the Democratic Party has a right to field a candidate, whether in compliance with state election laws or not. Based on this same premise -- that "the voters" have a "right" to Democrats, Pennsylvania's redistricting plan has been challenged before the U.S. Supreme Court, in the Vieth v. Jubelirer case that was argued last month.

Because the Republicans controlled the Pennsylvania state legislature at the time of the latest census, they were entitled to draw up the new voting districts. Since the state's population as a percentage of the national total is dwindling, it lost two seats in Congress, which meant that the number of districts needed to be reduced from 21 to 19. When the new map was drawn, districts in GOP strongholds in the northern and central parts of the state were essentially left intact, while the areas around Philadelphia and Pittsburgh were reduced by one seat apiece.

Arguably as a result of this redistricting, the Republicans' advantage in congressional seats from Pennsylvania has grown from 11-10 to 12-7. This should come as a surprise to nobody. The party in power always redraws districts to favor itself, and there's nothing illegal about it, so long as the new districts comply with the demands of compactness and contiguity made by the Reapportionment Act of 1842. While the Democrats have complained about the shapes of a few districts, they are not challenging them under the Reapportionment Act. Instead, they claim that the new map violates the "one person, one vote" principle that supposedly emanates from Article I Section 2 of the Constitution.

In an example of the deliberately imprecise paraphrasing that liberal jurists often employ, they have derived this rule from the clause of that section that reads, "Representatives ... shall be apportioned among the several states ... according to their respective numbers." Not only do they inaccurately condense that as "one person, one vote," but they then misapply that principle. Rather than charge that any person's voting rights are being violated, they contend instead that the Democratic Party is entitled to a majority of the congressional seats from the state, just because a majority of voters are registered Democrat. Typically, they are using the word "person" to mean not an individual human being, but only one thread inextricably enmeshed in a collective entity.

An amicus brief filed on the Democrats' behalf by the Brennan Center for Justice complains that, "In 2002, in the sole statewide race, the Democratic candidate for governor won with 55% of the major-party vote in a race between non-incumbents. Yet Republicans won 63% of the Congressional seats, implying that there are fewer than half as many Republican voters per Republican Representative than Democratic voters per Democratic Representative."

This analysis suggests that just because Democrat Ed Rendell won the gubernatorial race, his party was entitled to a majority of congressional seats, and that if it doesn't work out that way, a judicial remedy is required. One can only arrive at such a conclusion by looking at the constituency in terms of voting blocs, instead of individual voters, who are capable of voting for one party's gubernatorial candidate and the other party's congressional candidate in the same election.

According to the House of Representatives' website, 1,859,270 Pennsylvania voters cast ballots for Republicans in House races, while only 1,348,665 voted for Democrats. The Brennan Center accounts for this in a footnote to that previous statement, in which it says, "It is difficult to make a similarly meaningful calculation using the aggregate votes cast for Republican and Democratic Congressional candidates because there were no Democratic candidates in five of the 19 districts and no Republican candidate in another district." (Hey, wait a minute. Didn't the Jersey court deem that illegal?)

Even in those districts where both major parties were represented, the Democrats only had an edge by 21,937 votes. Of course, if the candidates in those other six districts had faced major party opposition, they'd almost definitely have still won by wide margins. That's why the opposition didn't field a candidate in the first place. The net difference among those six districts would surely leave the Republicans with a significant majority of all votes cast. Therefore, the brief's claim that the will of the majority had been repressed is not true.

Nor does the Brennan Center have a valid point in complaining that Republicans won a greater percentage of districts than they did votes. That result actually reflects the statistical norm.

Say you have fifty red apples and forty green apples, and ten buckets in which to put them. You must put a total of nine apples in each bucket, while blindfolded. The more evenly distributed the apples are by color, the greater the number of buckets that contain more red ones than green. If five buckets are filled entirely with red apples, then the greens will hold the majority in at least four of the other five buckets, and probably the fifth as well. If, however, the apples are distributed evenly, then each of the nine will contain a 5-4 majority of reds. Most likely, the distribution rate will fall somewhere in between, meaning that the red apples, though they are only about 55.5% of the total, will hold the majority in somewhere between 60% and 90% of the buckets.

We have seen this pattern in our presidential elections. In 1984, Ronald Reagan won 59% of the vote to Walter Mondale's 41%, yet Reagan won 98% of the states to Mondale's 2%. In 1996, Bill Clinton won 49% of the vote, and Bob Dole 41%, but Clinton won 33 states, for an advantage of 66%-34%. That Republican congressional candidates carried 63% of Pennsylvania's voting districts while winning about 58% of the votes is comparatively unremarkable.

That said, the courts would have no justification in striking down the new map even if the Republicans had won most of the seats with a minority of the statewide popular vote. Redistricting has been used to the advantage of the party in power at least as far back as 1812, when a salamander-shaped district in Massachusetts -- devised in part by Gov. Elbridge Gerry -- gave birth to the term "gerrymandering." The practice, long accepted as the spoils of political victory, has only become the focus of controversy as the Democratic Party has lost its grip on state legislatures.

One might argue that the redistricting process needs to be revamped regardless of the immediate political consequences. The problem is that it involves decisions that must be made arbitrarily. There is no way to gauge the degree to which tactical political considerations affect those decisions, so the determination as to whether a districting plan is "unfair" is necessarily subjective. Anyone who's ever picked up a newspaper can see how the ground rules would be set. Republicans acting in their own interest are unfair. Democrats acting in theirs are only doing what's necessary to save the country from dangerous extremists.

To illustrate this, remember how Supreme Court nominees were treated during the Clinton administration. Democrats suddenly became concerned by how harshly Robert Bork and Clarence Thomas had been treated by the Senate. The system had become infected with too much partisan rancor, they said, so it was time that both parties worked together to restore civility. The Senate Republicans agreed, and allowed the nominations of Ruth Bader Ginsburg and Stephen Breyer to pass through with virtually no opposition, or even questioning of their judicial philosophies.

Now that another Republican president is nominating judges, those harmonious days are over. George W. Bush hasn't had a chance to nominate a Supreme Court justice yet, but the battles over some of his Circuit Court appointments give us a hint of things to come. If anything, the Democrats have surpassed their previous standards of outrageous conduct, and they justify it by saying that the judges are "too far out of the mainstream," and therefore not deserving of civility. Sen. Ted Kennedy even denounced the accomplished jurists as "Neanderthals."

It is that same justification that now drives their campaign against redistricting, not just in Pennsylvania, but also in Texas and Colorado. It's not that they have a sound legal argument to oppose those states' plans; it's just that their sense of entitlement is such that they feel as if any victory by their opponents is unfair and immoral. Moreover, the laws that allow such injustices to take place must be overturned.

It's difficult to say what they might do if the Supreme Court disagrees with them. In Texas, Democrat legislators were so desperate to stop a Republican reapportionment plan that they ran away to a Holiday Inn in Ardmore, Oklahoma to deny their Republican colleagues a quorum. When the governor called them back for a special session, they fled again, this time to the Albuquerque Marriott.

The Texas Republicans' plan has since passed, and the Democrats, naturally, have challenged it in court, so they'll be watching this Pennsylvania case to see if it gives them a precedent. If it doesn't, they might just take their ball and go home -- which, incidentally, is where the voters are sending them in increasing numbers anyway.

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