High stakes in redistricting fights

The fights are just as fierce and the outcomes equally crucial - but this time, more are losing battles. The proliferation of voter redistricting cases that began in the 1980s and '90s has continued on into the 21st century. But since the 2000 census, significantly fewer have succeeded in challenging districts they deemed unfair: only 22 percent have resulted in court-ordered modifications, compared with 35 percent in the 1990s.

Theories abound about what's changed. Lower-court judges, some say, have been wary of ruling in highly politicized redistricting cases since the US Supreme Court's decision in Bush v. Gore drew intense criticism as politically motivated. Others say legislators better grasp the law after three modern redistricting cycles and numerous challenges.

Republican dominance in Congress probably also plays a role, as Republicans have historically challenged districts more often than the Democrats, now the underdogs. The change also follows a series of Supreme Court cases in the 1990s that reined in redistricting that favored minority groups - coupled with the facts that in recent years more candidates of color have been elected and voting along color lines has declined, making racial discrimination harder to prove.

Whatever the cause, the trend has raised the bar for challenges following the 2000 census, making the major court battles now under way - from a Pennsylvania gerrymandering case before the Supreme Court to two minority vote-dilution cases in Boston - particularly worth watching.

"There are so many fewer cases getting serious consideration this time around that the ones that do have to stand out in some way from those we've seen over the past 30 years," says Kimball Brace, president of Election Data Services in Washington, DC.

In some ways, the Boston case, Black Political Task Force et al. v. William Francis Galvin, looks like a classic race-based redistricting fight. Plaintiffs claim it's no accident white incumbent Thomas Finneran, Speaker of the Massachusetts House, appointed two old friends to chair the House redistricting committee and redraw lines to replace three heavily black precincts in his district with three overwhelmingly white ones.

Cases of this sort have been the norm, particularly since the 1990s Supreme Court challenges clarified the impact of the 1965 Voting Rights Act on racial gerrymandering - or the redrawing of voting districts to favor a particular political or ethnic group. Invariably, defendants in such cases argue, as Speaker Finneran's counsel did, that drawing districts to protect incumbents - of any race - is as old as the country itself, and though distasteful to many, it's legal unless a state forbids it. Massachusetts does not.

Still, the case raises a question sure to be central to the redistricting fights that follow: that of legislative privilege. Much of the legislature's defense in the case rested on this legal principle, which protects members of Congress from having to reveal how legislative proceedings take place. Plaintiffs' lawyers argue that the principle is a sound one, but not when applied to redistricting from which legislators directly benefit. "Voting is the way that people express their displeasure with their legislature, so the legislature should think they're being watched during redistricting," says Heather Butterfield, an attorney for the plaintiff.

The second Boston-area case, Meza et al. v. William Francis Galvin, is part of what redistricting-watchers call the field's most important trend, given the nation's soaring Latino population. The case "raises the question: 'Is there life in the [federal Voting Rights] Act for this decade, and are we going to see more life in it, particularly for the emerging Latino community?' " says Rob Richie, executive director of the Center for Voting and Democracy in Takoma Park, Md.

Meza plaintiffs seek to have recent growth in Massachusetts' Latino population represented in the state's tally of majority-Latino districts. What happened in the 2000 plan, they say, is just the opposite: While the state's Latino population grew to 1-1/2 times its 1990 size, and other minority groups grew as well, the number of minority-dominated districts shrank from 10 to eight.

Defendants in the case argue that though the total Latino population grew, so much of that growth was among illegal migrants and children that the growth in voting-age Latino citizens was negligible - only about 3 percent in a decade. Plaintiffs say citizenship is irrelevant, and that representation should be decided on the basis of total voting-age population. A few US states have considered the question and disagreed, naming citizen population as the guideline. If Massachusetts judges rule differently, the case could be on its way to the US Supreme Court. Both Boston-area cases were tried before a three-judge panel this winter; decisions are expected this month.

Meantime, in December the Supreme Court heard Vieth v. Jubelirer, a Pennsylvania case in which Democrats argue that a 2000 Republican redistricting plan gives the GOP an "unconstitutional" number of House seats - 12 or more of 19 seats in a state evenly divided between the parties. A similar case in Texas drew national attention in 2003 when state legislators fled the state to stall passage of an unorthodox mid-cycle plan that favored its Republican authors.

But while the federal Voting Rights Act has long given some guidance in race-based gerrymandering cases, the nation's courts have offered almost none on politically partisan gerrymandering.

"If the Supreme Court were to limit partisan gerrymandering, many states would come under that law," says Tim Storey, a redistricting expert at the National Council of State Legislatures in Denver.

Whatever the outcome of this particular case, the Supreme Court's apparent willingness to hear redistricting cases - more than a dozen over the past 10 years - "tells you a lot about the transitional nature of the law in this area," Storey says.