Don't Mess With Texas

Just three years ago Texas Democratic legislators made national news when they fled to New Mexico and Oklahoma to avoid a quorum in the state's House of Representatives. Today the Supreme Court reviews the partisan congressional redistricting that they failed to stop. Yet despite all the angry words spoken, the Republicans' gerrymandering has proven to be much less partisan than the Democratic gerrymandering it replaced. It is also less biased than gerrymandering in other states, making it hard for the Supreme Court to strike down the new district lines as unconstitutional.

Everyone acknowledges that congressional lines are drawn to benefit the party drawing the lines, but when does it go too far? In Vieth v. Jubelirer (2004), the Supreme Court appeared to say that state legislatures can be too partisan in redistricting, though not in the case before them, involving Pennsylvania. The court was not able to agree on how to even determine when improper gerrymandering occurs.

The current case (League of United Latin American Citizens v. Perry) isn't going to make this problem any easier: Invalidating the Texas redistricting as too partisan would cause a flood of other legal challenges. In 2004, the first and only election that was held after the new boundaries went into effect, Democrats received 40% of the major party vote but only 34% of the seats. However, this gap is actually small -- not only when compared to the numbers in Texas at least since 1980, but also when compared to other states. Even Pennsylvania's constitutionally acceptable gap was almost twice as large.

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During the two decades when Democrats completely ran redistricting -- from 1981 through the 2000 -- they averaged about 12 percentage points more seats than their portion of the popular congressional vote in Texas. Even when the courts redrew the district lines in 2002, the gap was eight percentage points. Who can argue with a straight face that the 2004 results represent excessive Republican gerrymandering when the Democrats now only received six percentage points fewer seats than their vote share?

In 1994 Democrats lost congressional seats nationwide during the Republican takeover of Congress and their vote share in Texas tumbled to just 43%, but they still managed to hold on to 63% of the Texas congressional delegation. When states have only one or even a few seats, large gaps between vote share and the share of seats won are difficult to avoid. For example, with only two seats, if one party gets two-thirds of the vote, it can only end up with either half or all the congressional seats.

Thus, another complication for any rule is that it will have to vary with the number of congressmen elected in a state. Just look at the largest 13 states with at least 10 congressmen each: Nine of those states face a much greater vote gap than Texas. In Massachusetts, Democrats receive 20 percentage points more of the congressional seats than they receive of the congressional vote. In Ohio, the gap is 15 percentage points in Republicans' favor. Only three states other than Texas (California, Florida and New York) have at least 20 congressmen, and all three have larger percentage gaps than Texas.

Much of the political pressure in the Pennsylvania and Texas redistricting cases comes from the lack of political competitiveness. Only 33 out of 435 congressional seats are considered competitive this year. Ironically, it was a couple of politically sacred Supreme Court cases, the so-called "one-person one-vote" rulings from the 1960s, that helped create the current mess, making state legislative and -- to a lesser extent -- congressional elections much less competitive. Many states used to assign state legislators by county, just as U.S. senators are assigned by state, and there were wide discrepancies in how many constituents a state senator represented. But without the constraints of these political boundaries, politicians could draw almost any shape district they wanted so long as they all had the same number of people.

In the 1960s, Democrats wanted the one-person-one-vote rule because the rural districts with few people tended to be much more conservative than urban areas, and they were given disproportionate influence. Whatever its merits, few would have foreseen the current mess that these past rulings have helped create.

Other arguments regarding the number of majority-minority districts in Texas will also be considered by the Supreme Court, but those arguments are even weaker. After the switch to Republican control, for example, the number of Hispanic and African-American congressmen didn't decline.

Justice Kennedy was correct in the Pennsylvania case: It seems impossible for workable rules to define when gerrymandering goes too far. Hopefully, the Supreme Court will this time recognize the unintended consequences its actions can have

John R. Lott Jr. is a resident scholar at the American Enterprise Institute.