The Coming Battle over Reapportionment and Redistricting
by Bruce Walker (2/25/09)
The decision by Senator Gregg not to become Commerce Secretary is the first round in a vital battle over reapportionment and redistricting. Title 13 Section 2 provides “The Bureau [of the Census] is an agency within, and under the jurisdiction of, the Department of Commerce.” President Obama and his Chief of Staff lack the legal authority to move the Bureau of the Census under the direct control of the White House, and an indirect effort to do that - - exactly what the Obama Administration has said that it intends to do - - is a contravention of federal law. Article I Section 2 of the Constitution makes it clear that Congress, not the President, has the constitutional authority to define the census process. If President Obama tries to politically manage the census process, he is not only violating federal law but he is also violating the Constitution.
Reapportionment is a zero sum game: one state’s gain is another states loss. An attempt to use an executive branch formula rather than an actual count to determine how many people live in towns and counties across America will mean that congressional seats and electoral votes will be larded out like so much federal pork to favored parts of the nation (and those congressional seats and electoral votes will be denied to disfavored parts of the nation.)
Reapportionment triggers redistricting. State legislatures, in most states, draw the congressional and state legislative boundaries based on census data. Gerrymandering - - the calculated drawing of legislative district lines to help the party which controls the state legislature and to hurt the party out of power - - can not only control the partisan makeup of Congress but it control the partisan makeup of the state legislatures. Computer software now makes the gerrymandering process much more exact and effective.
Most state legislators and most governors today are Democrats. If Obama usurps the independence of the Bureau of the Census and if Democrats in state government use advanced information technology to engage in high tech gerrymandering, the combined effect could make the Democrat Party the permanent majority party in America without winning a single new voter. What should conservatives do? There are three major lines of attack.
First, Republicans in Congress should introduce a bill as soon as possible to require that all legislative districts in our nation be drawn to be compact, contiguous, and without advantage to any political party. This would create a federal statutory framework for Republicans to challenge in court any form of gerrymandering at the congressional or state legislative level. Republican Congresses once outlawed gerrymandering of congressional districts and Congress clearly has the power to do this. Article IV of the Constitution (guarantee of a Republican form of government for states) and the Fourteenth Amendment (mandating equal protection of the law for all persons within a state) are ample authority for extending this nonpartisan requirement to state legislative districts too.
Democrats loudly condemned Tom Delay when he encouraged Texas Republicans to redraw Texas congressional districts so that district boundaries were more favorable to Republicans. How can Democrats defend what they accused Republicans of doing? Congressional Republicans ought to be able to get virtually every member of their caucus to be a co-sponsor of this good government legislation. Obama himself has opposed, in theory, gerrymandering. Republicans should begin, as soon as practicable, to make the congressional abolition of gerrymandering a defining difference between the two political parties.
Second, the Republican Party should begin to inform voters in swing states like New Hampshire, Indiana, North Carolina, Ohio, and Iowa just how much political clout and federal money a crassly partisan Obama census process would cost the people and politicians of those states. Republicans should encourage bipartisan state resolutions to demand a census free of theoretical projections and guessing. Obama won the White House and Democrats won control Congress by electoral victories in just these swing states which would be cheated out of any census monkey business. Re-apportionment is a zero sum came. It produces as many losers as winners. It is for just this reason that it must be fair. The losers are never happy. Republicans must, as soon as practicable, let voters in states which would be cheated with a partisan census count know what Democrats are planning for them. This should also be a defining issue that separates the two political parties.
Third, Republicans should begin right now to make a major push to gain a veto on redistricting in as many states as possible. Corrupt or incompetent Democrat governors in states like New York, Illinois, and Michigan - - along with voter fatigue with Democrat governance in those states - - create opportunities for Republicans to elect governors. The Republican disadvantage in state legislatures is marginal. Until the 2006 and 2008 election cycles, Republicans had more muscle than Democrats in these legislatures. An unpopular Obama Administration in 2010 could produce a natural backlash against the Democrat ticket and return control of several state legislative chambers to Republicans. Actually, the Republican task is even easier: Democrats need to control both legislative chambers and, unless they have a veto-proof majority, the governor as well. All Republicans need is one legislative chamber or the governor and enough votes to sustain a veto in one legislative chamber to prevent gerrymandering.
The good news is this: fair reapportionment and unbiased construction of legislative districts naturally favors Republicans. People have been moving for decades from states run by the Left into states which free market approaches to government. Electoral votes and congressional seats will naturally move to the Republican Party is the process is simply proper. Although Republicans did gerrymandering in some states after the 2000 census, partisan gerrymandering has overwhelmingly favored Democrats. Ending gerrymandering nationally will automatically improve Republican electoral prospects in Congress and in state legislatures. But Republicans must be bold, be vocal, and be tenacious.
Bruce Walker
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