Amicus Curiae Brief — Vieth v. Jubelirer

_ Supreme Court, U.S.

ge FILED

AUG 29 2003

No. 02-1580

IEE ih

IN THE

Supreme Court of the Anited States

RICHARD VIETH, et a/.,

Appellants,

V.

ROBERT C. JUBELIRER, ef al.,

Appellees.

On Appeal from the United States District Court

for the Middle District of Pennsylvania

BRIEF OF AMICI CURIAE

THE REFORM INSTITUTE, THOMAS MANN,

AND NORMAN ORNSTEIN

IN SUPPORT OF APPELLANTS

TREVOR POTTER DANIEL R. ORTIZ

THE REFORM INSTITUTE Counsel of Record

211 North Union Street UNIVERSITY OF VIRGINIA

Suite 250 SCHOOL OF LAW

Alexandria, VA 22314 580 Massie Rd.

(703) 535-6897 Charlottesville, VA 22903

(434) 924-3127

Counsel for Amicus Curiae

I a TE TE TE ES

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

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INTEREST OF AMICI CURIAE ...0.......cccccssseseeseseenseees

SUMMARY OF ARGUMENT .......00....cccceeesseeeeeeseeeeees

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I.

IL.

UNPRECEDENTED PARITY BETWEEN

THE TWO MAJOR PARTIES ON THE

NATIONAL LEVEL HAS CREATED

GREAT PRESSURE TO MAKE INDI-

VIDUAL HOUSE DISTRICTS SAFE FOR

ONE MAJOR POLITICAL PARTY OR

ee i iectiscintsinsneinniniinirsmnennnsumninaiersvions

A. The Near Equal Division of the House of

Representatives, Its Widening Ideological

Polarization, and the Increasing Homo-

geneity of Each of the Two Major Parties

Mean That a Small Change in House

Seats Matters Much More Than Before ....

B. The Increasing Pressure to Gain Seats

Has Led to Making House Districts

Uncompetitive in a Way That Favors

ADVANTAGING ONE PARTY BY

MAKING HOUSE DISTRICTS UNCOM-

PETITIVE UNDERMINES THE UNIQUE

ROLE OF THE HOUSE OF REPRESENT-

ATIVES IN AMERICAN GOVERNMENT ....

A. By Deadening Competition in House

Districts, Partisan | Gerrymandering

Dangerously Weakens the Responsive-

ness and Accountability of Represent-

atives to Voters in Their Districts..............

(i)

14

18

li

TABLE OF CONTENTS—Continued

Page

B. By Artificially Advantaging One Political

Party over Another, Partisan Gerry-

mandering Can Substantively Skew

Public Policy for the Duration of the

Reapportionment Cycle ............cceceeeeeeeeeees 22

\

C. Partisan Gerrymandering Artificially

Increases Ideological Polarization in the

z a eee ee res

ill

TABLE OF AUTHORITIES

CASES Page

Badham v. Eu, 694 F. Supp. 664 (N.D. Calif.

1988), aff'd, 489 U.S. 1024 (1989)... 23

Balderas v. Texas, 536 U.S. 919 (2002) ..........0..... 12

STATUTES

Ee 2

OTHER AUTHORITIES

John Adams, Thoughts on Governance, in 4

Papers of John Adams 87 (Robert J. Taylor

tiered nicnennenccnscnsecteconse 2

David Brady & Morris Fiorina, Congress in The

Era of the Permanent Campaign, in The

Permanent Campaign and Its Future 134

EEE ee 25

Bruce Cain, The Reapportionment Puzzle

Tlic teaeereeicecerinrtetncnscnencncenenezncceseccsses 16, 24

Michael J. Dubin, United States Congressional

Elections, 1788-1997: The Official Results

a scssnnuensoonoce 16

The Federalist No. 52 (James Madison) (Robert

a 2

The Federalist No. 57 (James Madison) (Robert

a 2,3

David M. Halbfinger, Across U.S., Redistricting

as a Never-Ending Battle, N.Y. Times Al

ES 12

Sam Hirsch, The United States House of

Unrepresentatives: What Went Wrong in the

Latest Round of Congressional Redistricting, 2

Election L.J. 179 (2003)..............ccee0e 3, 4, 19-20, 23

Gary C. Jacobson, Terror, Terrain, and Turnout:

Explaining the 2002 Midterm Elections, 118

EE 17-19, 22, 24

iV

TABLE OF AUTHORITIES—Continued

Gary C. Jacobson, A House and Senate Divided:

The Clinton Legacy and the Congressional

Elections of 2000, 116 Pol. Sci. Q. 5 (2001)......

Gary C. Jacobson, The Politics of Congressional

Page

7

TT | aT 8-10, 17

Office of the Inspector General, Department of

Justice, An Investigation of the Department of

Justice’s Actions in Connection with the

Search for Absent Texas Legislators (Aug. 12,

2003), available at http://www.usdoj.gov/oig/

special/03-08a/final pdf ....................ccccceceeeeeeeees

Office of Inspector General, U.S. Department of

Homeland Security, Report of Investigation

IN03-O1G-0662-S, available at http://www.

dhs.gov/interweb/assetlibrary/DHS OIG _ Inve

ee

Norman J. Ornstein, Thomas E. Mann & Michael

J. Malbin, Vital Statistics on Congress 2003-

2004 (forthcoming 2004), to be available at

RT AIRED ccccenmmenmenmenenennnn

Keith T. Poole & Howard Rosenthal, Congress:

A Political-Economic History of Roll Call

LEE

Statement Hon. Kenneth M. Mead, Inspector

General, U.S. Department of Transportation,

Federal Aviation Administration Efforts to

Locate Aircraft N711RD (July 15, 2003)

(testimony to House Committee on Trans-

- portation and Infrastructure), available at http:

//www.oig.dot.gov/show_pdf.php?id=1127 ......

Texas Democrats Are Fined by G.O.P., N.Y.

po en

12, 13

13

3,4

INTEREST OF AMICI CURIAE'

The Reform Institute, Inc. is a not-for-profit 501(c)(3)

educational organization representing a thoughtful voice of

reform in debates over campaign finance and election

administration. Senator John McCain serves as Chair of its

Advisory Board. The Reform Institute has three main roles

(1) to reduce political corruption and the appearance of

corruption; (2) to promote discussion about how best to

reform election registration and voting procedures in order to

increase meaningful citizen participation in the democratic

system; and (3) to promote and defend citizen reform

initiatives that seek to open the doors of the voting process.

The present case concerns whether a state legislature can

redraw congressional districts so as to minimize the

likelihood that a particular political party’s candidates will

win in the election. It directly implicates the Reform

Institute’s second role of increasing meaningful citizen

participation in the democratic system.

Thomas E. Mann and Norman J. Ormstein are political

scientists at the Brookings Institution and the American

Enterprise Institute, respectively. In their 35-year careers,

they have individually and jointly written extensively about

Congress, elections, redistricting and American politics and

government generally. Active in congressional, election,

campaign finance, and other institutional reform efforts, their

professional lives have been focused on the health and

vibrancy of American political institutions. Their biennial

book Vital Statistics on Congress is in its twelfth edition.

Their joint AEl/Brookings efforts have included the

Renewing Congress Project, Five Ideas for Practical

' All parties consented to the filing of this amicus brief with the Court

in writings accompanying this filing. No counsel for any party authored

this brief in whole or in part and no person or entity other than amici

curiae or counsel made any monetary contribution to its preparation or

2

Campaign Reform, the Transition to Governing Project, the

Alternatives to the Independent Counsel Project, and the

Continuity of Government Commission.

SUMMARY OF ARGUMENT

The Framers envisioned the House of Representatives as a

unique structure of the national government. Unlike the

Senate, the President, or the courts, it was to have “an

immediate dependence on, and an intimate sympathy with,

the people.” The Federalist No. 52, at 337 (James

Madison)(Robert Scigliano ed., 2001). As John Adams put it,

the body of the people’s representatives should “be in

miniatur[e] an exact portrait of the people at large. It should

think, feel, reason, and act like them.” John Adams,

Thoughts on Governance, in 4 Papers of John Adams 87

(Robert J. Taylor ed., 1977). With this in mind, the Framers

carefully designed the House to “bin[d] the representatives to

their constituents ... [and] to extend the influence of the

people over their representatives.” The Federalist No. 52, at

339. They insisted on direct election “by the People of the

several States,” a broad franchise, regular reapportionment as

among the states, and frequent elections. U.S. Const. art. I, §

2. Of these, the last was the most important, for “without the

restraint of frequent elections” in the House, the Framers

thought, “[a]ll [other] securities [against oligarchy] would be

found very insufficient ....”. The Federalist No. 57, at 367.

By this device

the House of Representatives is so constituted to support

in the members an habitual recollection of their

dependence on the people. Before the sentiments

impressed on their minds by the mode of their elevation

can be effaced by the exercise of power, they will be

compelled to anticipate the moment when their power is

to cease, when their exercise of it is to be reviewed, and

when they must descend to the level from which they

were raised; there forever to remain unless a faithful

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3

discharge of their trust shall have established their title

to a renewal of it.

Id. Nearly every special feature of the House’s design was

meant to ensure that it, unlike the other primary structures of

the federal government, was highly responsive to public

sentiment.

Unfortunately, congressional redistricting has defeated

much of the Framers’ vision. High rates of incumbent

reelection, declining competitiveness of congressional

districts, and long periods of one-party control of the House

have eroded the accountability and legitimacy of the people’s

chamber. The 2002 congressional elections make this point

starkly. Only four challengers defeated House incumbents—

the lowest number in modern American history. Norman J.

Ornstein, Thomas E. Mann, & Michael J. Malbin, Vital

Statistics on Congress 2003-2004 tbl. 2-10 (forthcoming

2004) (hereinafter Vital Statistics), to be available at

http://www.aei.org; Michael J. Dubin, United States

Congressional Elections, 1788-1997: The Official Results

(1988); Sam Hirsch, The United States House of

Unrepresentatives: What Went Wrong in the Latest Round of

Congressional Redistricting, 2 Election L.J. 179, 182 (2003).

Only 43 House incumbents, moreover, won reelection

“narrowly”—defined generously as by less than 60 percent of

the vote—while 338 House incumbents enjoyed very large

victory margins—20 percent or more—including 78 who ran

unopposed by a major party challenger. Vital Statistics,

supra, at tbl. 2-12. In the nation’s largest state, California,

not a single challenger in the general election received as

much as 40 percent of the vote. Hirsch, supra, at 182. And

more than a third of all States sent to Congress exactly the

same House delegation as before. /d.

These facts are particularly striking because the 2002

elections were the first held after the latest reapportionment.

Historically, incumbents suffer in such elections. As their old

4

voters disappear and new voters replace them, incumbents

usually find their seats less secure. Their new voters can have

quite different interests than their previous constituents.

From 1972 to 1992, in fact, House turnover averaged 45

percent higher in immediate post-reapportionment

Congresses. These Congresses contained an average of 87

freshmen, while the others in this period contained only 60.

Id. at 183. In 2002, however, only 54 freshmen were elected

to the House—less than half the number elected in 1992.

Vital Statistics, supra, at tbl. 2-7. In 2002, incumbents had a

very easy ride overall. Only 35 incumbents retired (rather

than the average of 48 in other recent post-reapportionment

Congress); only eight lost in the primaries and only eight lost

in the general election, in each case half the time to another

incumbent. /d. This lack of competition was, moreover,

peculiar to the people’s chamber. On the same day that less

than ten percent of House races were being decided by

margins of ten percent or less, nearly half of all gubernatorial

and U.S. Senate races were that close. Hirsch, supra, at 183.

One significant difference, of course, is that no one can

gerrymander a statewide district.

Current political conditions have both increased the

incentives to gerrymander and exacerbated the democratic

pathologies it leads to. Over the last 15 years, American

politics on the national level has been subject to a striking

paradox: it has become much more competitive at the macro

level, when it comes to institutional control, but much less

competitive at the micro level, when it comes to individual

seats. Recent presidential elections have been very close and

the Senate and House have been evenly or very nearly evenly

divided. At the same time, the parties in the House have

become much more homogeneous and _ ideologically

polarized. Their homogeneity means that the majority party

(with near unanimity on critical party matters) can dominate

the House more effectively than before even with a small

margin. Their polarization, on the other hand, means that the

5

parties feel the stakes of control are higher. It increases both

the costs of losing and the benefits of winning. In an almost

evenly split House, where even a small gain in seats can make

all the difference, parties will struggle hard however they can

for each extra seat.

This struggle, of course, can have some very positive

effects. It may lead parties to field more attractive

candidates, may engage party members more deeply in party

activities, and may cause some voters to become more

interested in politics. It has also had, however, some very bad

effects. In particular, it has led parties to draw congressional

districts to give their House candidates an artificial

competitive advantage. The strategies are as simple as the

stakes are high. In states in which the redistricting power is

divided, bipartisan gerrymanders are constructed to create

ever safer districts while maintaining the partisan status quo.

In states with unified party control, the party controlling the

redistricting tries to pack as many of its opponent’s voters

into as few districts as possible, thereby giving its opponent

victories in only a few districts but making every victory a

landslide. At the same time, the controlling party tries to

create comfortably safe, but less than “landslide” safe,

districts for its own candidates everywhere else. That way it

can send more of its candidates to the House of

Representatives. Under either strategy, the overall result is a

diminishing number of seats that are in any real or

meaningful way competitive in general elections.

This practice undermines the unique role of the House in

several ways. First, it weakens the responsiveness and

accountability of each elected representative to voters in the

district. As the Framers keenly understood, a representative

who does not face the regular and effective discipline of the

voters cannot be counted on to reflect their views. Second, it

makes the House unrepresentative of the people overall.

Making individual seats safe for one party means that the

6

House fails to respond well to changes in underlying public

sentiment as the Framers intended. Unless voters’ attitudes

change dramatically, control of the House will not change at

all even though it and the country are nearly evenly divided.

Even worse, voters’ attitudes can change sharply—leading,

say, to a national swing of five percent—and see little impact

on House elections when only a tiny fraction of seats are

within a five percent margin of change. Third, it can

effectively skew representation away from an_ overall

constituency. If the only meaningful electoral challenge that

can take place is in a party primary, a representative may be

acutely responsive to the faction of ideological activists who

regularly populate party primaries and largely unresponsive

to the views of the average voter in the district. Centrist

voters of both parties are thus artificially silenced and the

House as a whole becomes even mere polarized than before,

which, in turn, encourages further partisan gerrymandering.

The result is a vicious cycle leading to ever more frequent

and more severe gerrymandering and worsening polarization

in the House.

All this, of course, undermines the special role the Framers

designed for the House of Representatives in our national

government. Instead of ensuring that representatives have

“an immediate dependence on, and an intimate sympathy

with, the people,” partisan gerrymandering frees them from

that dependence. It allows them greater freedom to pursue

others’ interests and to “think, feel, reason, and act [un}like”

the people they represent. The more electoral districts are

designed to deaden real political competition, in other words,

the less effectively elections operate to discipline the people’s

representatives and ensure that the House as a whole remains

truly representative.

—" oom

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7

ARGUMENT

I. UNPRECEDENTED PARITY BETWEEN THE

TWO MAJOR PARTIES ON THE NATIONAL

LEVEL HAS CREATED GREAT PRESSURE

TO MAKE INDIVIDUAL HOUSE DISTRICTS

SAFE FOR ONE MAJOR POLITICAL PARTY

OR THE OTHER.

A. The Near Equal Division of the House of

Representatives, Its Widening Ideological

Polarization, and the Increasing Homogeneity

of Each of the Two Major Parties Mean That

a Small Change in House Seats Matters Much

More Than Before.

As the 2000 elections showed, the two major parties enjoy

nearly equal popular support across the nation as a whole.

While one presidential candidate won a plurality of votes, the

other won a victory in the Electoral College; the Senate

became split exactly in two; and the majority party’s control

of the House stood on an extremely slim margin (221-212).

Gary C. Jacobson, A House and Senate Divided: The Clinton

Legacy and the Congressional Elections of 2000, 116 Pol.

Sci. Q. 5 (2001). In terms of popular support, the two major

parties were more evenly matched than anytime since the

nineteenth century. /d. at 6. And although the midterm

elections of 2002 increased the size of the ruling party’s

margin in the House by six seats, that margin still stood near

its modern low. The 2002 elections culminated a decade-long

trend. The /argest margin of majority in the House since

1992 was less than one-third the historical average from 1960

until 1992, and the average margin for the last ten years is

barely one-sixth of the average for the preceding period. See

Brief of Bernard Grofman and Gary C. Jacobson as Amici

Curiae at 4 fig. 1. By any standard—historical or absolute—

the margin of control in the House has been astonishingly

narrow over the past ten years.

Fe

g ’

At first that might appear a good thing. After all, small 93rd Congress (1973-74)

margins of control might be thought to force the parties to

cooperate, solve problems together, and allow some of their - a as

more centrist representatives a greater voice. But for two

reasons exactly the opposite is true. First, the major parties in @ int od

the House have become increasingly polarized. Gary C.

Jacobson, The Politics of Congressional Elections 242-50 (s™

ed. 2001). Poole-Rosenthal DW-Nominate Scores, a widely

accepted measure of congressional ideology, show how

markedly the parties have diverged over the last thirty years.

See Keith T. Poole & Howard Rosenthal, Congress: A

Political-Economic History of Roll Call Voting chs. 2-4 and

App. A (1997)(explaining and justifying measure). These

8

Number of Representatives

§ $

8

scores place each member of Congress on a liberal- e

conservative scale from -1.0 (liberal) to 1.0 (conservative) on

the basis of nonunanimous roll call votes. From the early @ beny

-1 09 08 07 06 05 04 03 02 01 0 Of 02 03 04 05 06 O07 O08 O9 1

1970s on, the average scores for members of the Democratic O-NOMINATE Score (1st Dimension)

and Republican parties have steadily and radically diverged.

See Brief of Bernard Grofman and Gary C. Jacobson as Amici

Curiae at 11 fig. 6. In fact, the score gap nearly doubled over 97th Congress (1981-82)

that time and now amounts to over .86 points on just a 2-point

scale. /d. at 9.

Second, the major parties in the House have become much ot

more homogeneous. There is now much less divergence than

before within each party. As comparison of the figures below

show, not only have both parties in the House shifted more

towards the extremes, leading to less overlap in their policy

positions, but each party has a much more cohesive focus

than before.

8

Number of Representatives

a 2

3

+ 29 08 07 06 05 04 03 02 01 O Of O02 03 O04 OS OF OF OB8 OD 1

D-NOMINATE Score (1st Dimension)

10

101st Congress (1989-90)

ul

|

07 08 09 1

D-NOMINATE Score (1st Dimension)

105th Congress (1997-98)

1 09 08 07 06 05 04 03 02 01 O OF O02 O93 O04 O05 O6 OF O8 OD 1

D-NOMINATE Score (1st Dimension)

Jacobson, The Politics of Congressional Elections, supra, at

246-47 figs. 8-4A-4D. In other words, the two major parties

in the House have become increasingly discrete and insular.

On policy, they are both more distant from each other and

more internally homogeneous than before.

1]

In such a world, small differences matter. The vanishingly

narrow margins of control over the past ten years mean that a

gain of just a few seats can completely switch party control of

the House. From the 1970s through the early 1990s, for

example, changes of up to 25 seats in any election would

have made no difference to which party controlled the House.

After 1992, however, a difference of as few as six seats and at

most 13 would have made all the difference. The increasing

homogeneity of each party over that same time, moreover,

means that the party in control now has a greater focus and

has to worry less about its individual members deviating from

its preferred policy positions. The increasing polarization

sharply raises the stakes of House control for each side.

Since larger policy differences separate the parties, which one

controls has a greater effect on legislative policy outcomes.

In the 1970s, when less distance separated the two parties and

they were less homogeneous, which one controlled the House

mattered less because the policy outcomes sought and

produced under one party would have been more similar to

those sought and produced under the other. Once the parties’

policy preferences markedly diverged and party members in

the House voted more in lockstep than before, however, the

policy stakes greatly increased. Because of their ideological

polarization, each party wants more extreme policies than

before and, because of homogenization, the party in control

finds it much easier to achieve its preferred policies even with

a small margin. Thus, the stakes of redistricting have grown

in two mutually reinforcing ways: narrow margins of control

have meant that differences in just a few seats can change

which party controls the House and a difference in party

control makes a much larger difference in legislative policy

outcomes. Shifting fewer seats produces larger legislative

payoffs than before.

The parties understand this. In recent years, congressional

redistricting battles in the states have become nastier and

more pitched. The stakes are so high, in fact, that national

12

party leaders from Washington have often led the battles.

Most recently, for example, the Majority Leader of the United

States House of Representatives has pushed Texas state

legislators to draw a new congressional map even though the

existing plan is only one election old and the courts have

approved it. See Balderas v. Texas, 536 U.S. 919 (2002)

(affirming unpublished opinion of 3-judge court). His reason,

stated publicly, was clear and simple: “I’m the majority

leader, and we want more seats.” David M. Halbfinger,

Across U.S., Redistricting as a Never-Ending Battle, N.Y.

Times Al (July 1, 2003). The attempt has produced such

bitterness, however, that state representatives of the minority

party have repeatedly decamped the state in order to deprive

one house or the other of the state legislature the two-thirds

quorum necessary to pass a new plan. The senate

representatives are currently sojourning in New Mexico.

Texas Democrats Are Fined by G.O.P., N.Y. Times A9 (Aug.

15, 2003)(“Eleven Democrats have stayed at a hotel in

Albuquerque since July 29, keeping the Texas Senate

Republican majority from obtaining the quorum it needs to

consider a Republican redistricting plan.”).

In response, not only has the Texas Department of Public

Security sought to arrest and return the minority party

representatives to the statehouse but representatives of the

United States House Majority Leader have pressed several

different instrumentalities of the federal government,

including the Department of Justice and the Federal Aviation

Administration, to help in the effort. Counsel to the United

States House Majority Leader, for example, called the

Department of Justice and asked if it had the Jegal authority

to assist in forcing the return of the minority party state

legislators to Texas. Office of the Inspector General,

Department of Justice, An Investigatioa of the Department of

Justice’s Actions in Connection wih the Search for Absent

Texas Legislators 4-6 (Aug. 12, 2003) [hereinafter DOJ

Investigation], available at htp://www.usdo}.gov/oig/special/

13

03-08a/final.pdf. Late the day before a senior staffer for the

United States Majority Leader called the Federal Aviation

Administration’s Administrator for Government & Industry

Affairs asking for the current and past location of the plane of

the former Speaker of the Texas House, which the staffer

hoped might lead to the missing members. Statement of Hon.

Kenneth M. Mead, Inspector General, U.S. Department of

Transportation, Federal Aviation Administration Efforts to

Locate Aircraft N711RD (July 15, 2003)(testimony to House

Committee on Transportation and Infrastructure), available at

http://www.oig.dot.gov/show_pdf.php?id=1127. That same

day the Texas Department of Public Safety contacted the

federal Air and Marine Interdiction Coordination Center

(AMICC), an arm of the United States Department of

Homeland Security, asking it to locate an aircraft transporting

Texas state legislators. Office of Inspector General, U.S.

Department of Homeland Security, Report of Investigation

IN03-OIG-0662-S, at 1, available at http://www.dhs.gov/

interweb/assetlibrary/DHS_OIG_Investigation Texas.pdf.

Employees at all three federal agencies spent time on these

requests. The FAA and the AMICC gave state police

officials or representatives of the United States House

Majority Leader information on the location of the plane.

The Department of Justice, after much internal consultation,

did ultimately refuse to aid in the return of the errant Texas

legislators. One Justice official aptly described the request

from the U.S. Majority Leader’s office as “wacko.” DOJ

Investigation, supra, at 5. So great is the pressure to gain

seats that both federal and state political officials attempted to

enlist the power of law enforcement and national security

agencies for partisan ends. This politicization of the rules of

the game severely damages the legitimacy of our democratic

process.

14

B. The Increasing Pressure to Gain Seats Has

Led to Making House Districts Uncom-

petitive in a Way That Favors One Party.

To gain seats through redistricting requires a party in

control of the redistricting process in individual states to

follow only a simple strategy: that party must make its

opponent’s districts as few and its own as many as possible.

To minimize the number of its opponent’s districts, the party

in control must pack as many of its opponent’s voters as

possible into each district the opponent controls. This leads

to the opposition party winning few districts but winning each

by a landslide. To maximize the number of its own districts,

by contrast, the controlling party must assign as few of its

own voters to as many districts as it can while maintaining a

reliable majority in each of them. This leads to the

controlling party giving itself a comfortable but less sizeable

margin in as many districts as possible. The strategy thus

aims to make virtually every district uncompetitive and

achieves its partisan ends by making the districts

differentially uncompetitive for each party. By creating

super-safe districts for the opposing party and merely safe

districts for itself, the controlling party “wastes” minority

party votes and efficiently deploys its own. Knowing that

“one person, one vote” and race are virtually their only legal

constraints, party strategists feel free to draw such lines.

An extreme example demonstrates these possibilities.

Imagine a jurisdiction with 100 voters, four seats, and two

parties, one of which claims 60 percent of the voters and the

other 40 percent. If the voters are uniformly distributed

across the jurisdiction, the majority party will necessarily win

every seat so long as the districts are drawn contiguously. A

uniform distribution of voters ensures that no matter how the

jurisdiction draws its districts three majority party voters will

accompany every two minority party votes. The only

possible way to create a seat for the minority party would be

to district noncontiguously on some basis where the voters

Serer gg 7 ee

15

were not uniformly distributed by party. If party affiliation

varied roughly according to economic status, for example,

non-geographic districts defined by ranges of wealth could

permit the minority party to capture one seat. But, of

course, such districts are only a theoretical possibility in our

political system.

If the state legislature had complete freedom in assigning

voters to districts and knew how individual voters voted,

many results are possible. It could randomly assign voters to

districts, for example, in which case each of the four districts

would contain roughly 60 percent majority party voters and

the majority party would win every district. At the other

extreme, the legislature could split all the minority party

voters evenly among three arbitrary districts. In such a

scheme, the minority voters would have a bare majority in the

first three districts while the majority party would have nearly

a 100% majority in the fourth.“ Although the majority party

would win by much more in the single district it controlled, it

would lose three to one_in the legislature itself. By

differentially distributing party voters across districts, in other

words, the legislature would be able to leverage a 40 percent

party minority in the electorate into a 75 percent party

majority in the legislature. At the extremes, the legislature

could lock the minority party out completely, as in the

random districts, or it could lock the majority party into a 25

percent minority position. If the parties were completely

polarized and homogeneous, moreover, a 25 percent minority

A state legislature would usually, of course, be interested in boosting

the representation of the majority party since the majority party would

usually control it. If the present minority party had previously enjoyed

control of the legislature and gerrymandered state legislative districts to

favor its own candidates, however, it could still control the legislative

process despite its minority status and then draw lines to give a majority

of a state’s congressional seats to minority party candidates. Gerry-

mandering on the state level can thus induce and compound democratic

pathology at the level of the House.

16

would be completely powerless in the legislature. The 75

percent majority would always get its way. At either extreme

and in most places in between, for that matter, the

legislature’s ultimate policy outcomes would reflect less the

underlying policy preferences of voters, which would not

vary, than how voters were assigned to districts. In a real

sense, the people’s representatives would reflect the districts

of the people rather than the people of the districts.

A party, of course, will usually want to reach no further

than it can reliably grasp. Otherwise, a small shift in public

opinion can cause its gerrymandering to backfire. See Bruce

Cain, The Reapportionment Puzzle 151-59 (1984)(explaining

how a party that cuts its margins too thin can lose many seats

if voter support changes). To prevent this, a party in control

of redistricting can be expected to give itself more than a thin

margin of victory in its districts and may sacrifice a seat or

two in order to ensure that it will continue to dominate its

remaining districts if voter sentiment shifts somewhat in the

later years of the reapportionment cycle. This strategy

deadens competition in nearly every district. The party-

victim of the gerrymander will enjoy wins in as few districts

as possible but in each by a landslide while the party in

control of the gerrymander will enjoy wins in a dispropor-

tionately large number of districts but by smaller margins.

Few, if any, districts will remain in true competition.

Examples as extreme as those in the above hypotheticals

are admittedly rare. In some states, redistricting power is

divided between the parties, often producing bipartisan

gerrymanders which maintain the partisan status quo while

creating safer seats for both parties. Even with unified party

control, legislatures do not have complete flexibility in

assigning voters to districts. If only to avoid public backlash,

they must pay some respect to geography and often as well to

political subdivisions and communities of interests. Looking

to these other concerns will temper what a state legislature

can do, if only a little. More importantly, until recently state

17

legislatures could not so effectively gerrymander because in

many instances they could not accurately predict voting

behavior. Above all else, partisan gerrymandering depends

on the ability to predict how different groupings of people

will vote. If a legislature cannot tell whether drawing

districts one way rather than another will help or hurt a

particular party, it will not be tempted to gerrymander. As

voting behavior becomes predictable, however, partisan

gerrymandering becomes possible, powerful, and common.

Although technology has improved redistricters’ ability to

predict the partisan effects of various plans, the greatest

improvement in prediction has come from changes in voting

behavior itself. District-level voting behavior is more

consistent now than it has been for many years. In the 2002

midterm congressional elections, in fact, fewer congressional

districts had split preferences—voting for candidates of

different parties for the House and presidency—than in any

election in over 50 years. See Gary C. Jacobson, Terror,

Terrain, and Turnout: Explaining the 2002 Midterm Elect-

ions, 118 Pol. Sci. Q. 1, 12 (2003). In only 62 House districts

did voters not elect a representative from the same party for

which they voted for President two years before. Jd. This

increasing district-level consistency parallels a trend in

individual voting behavior: the decline of split-ticket voting.

From 1972 to 1996 the percentage of voters splitting tickets

between presidential and senate candidates has dropped from

28 to 15 percent. Gary C. Jacobson, The Politics of Congress-

ional Elections 149 fig. 6-2 (Sth ed. 2001). Such increased

individual consistency allows those redistricting to predict

much more accurately the partisan effects of their line-draw-

ing. By understanding how individual precincts voted in the

last presidential election, they can more reliably predict how

those precincts will vote in future congressional elections and

use this information to strategically aggregate precincts to

provide majorities of the “right” size to each party.

18

Il. ADVANTAGING ONE PARTY BY MAKING

HOUSE DISTRICTS UNCOMPETITIVE

UNDERMINES THE UNIQUE ROLE OF THE

HOUSE OF REPRESENTATIVES IN AMER-

ICAN GOVERNMENT.

A. By Deadening Competition in House Districts,

Partisan Gerrymandering Dangerously

Weakens the Responsiveness and Account-

ability of Representatives to Voters in Their

Districts.

Partisan gerrymandering artificially advantages and disad-

vantages parties by deadening competition in as many dis-

tricts as possible. Empirical research proves how much this

harms the democratic process. As one leading political scien-

tist describes its effects, the latest round of redistricting gave

marginal incumbents of both parties . . . safer districts.

Redistricting gave eight Democratic incumbents who

had been representing Bush-majority districts[, districts

in which Republican George W. Bush had won the

popular vote in the 2000 presidential election,}] new

Gore-majority districts,[ districts in which Democrat Al

Gore had won the popular vote in that election]; only

one suffered the contrary switch .... All thirteen of the

switches involving Republican incumbents were from

Gore- to Bush-majority districts. Of the twenty-five

districts Republicans had won in 2000 with less than 55

percent of the major party vote, eighteen were

strengthened by increasing the proportion of Bush

voters; of the nineteen similarly marginal Democratic

districts, fifteen were given a larger share of Gore voters.

Thus, three quarters of the marginal districts were made

safer by redistricting, half of them by more than [two]

percentage points (in presidential vote share). If analysis

is confined to districts with marginal incumbents who

——— ee ee

19

sought reelection in 2002, thirty-two of their forty

districts (80 percent) were made safer by redistricting.

Gary C. Jacobson, Terror, Terrain, and Turnout, supra, at 10-

11. In individual states, the effects could be even more

extreme. Gerrymandering in California after the last census,

for example, left not a single one of the state’s 53 House

districts competitive. /d. at 10.

Long term trends exacerbate this problem. Since at least

the mid-twentieth century, competitiveness in House «istricts

has markedly declined. In the decade of elections after the

1960s reapportionment, for example, an average of 73 seats

were won with less than 55 percent of the major party vote.

In the decade of elections after the 1990s reapportionment, by

contrast, that figure fell by more than 10 percent to 65 seats.

See Brief of Bernard Grofman and Gary C. Jacobson as Amici

Curiae at 6 fig. 2. More ominously, elections immediately

following reapportionment have in recent years nearly always

(the 1972 Nixon-McGovern election is the only exception)

shown an increase in district competitiveness, but not in

2002. As one commentator has summed up the results

appearing in the following table,

elections held in the immediate aftermath of

reapportionment . . . have generated particularly large

freshman classes and have returned fewer incumbents

than have other elections. On average, more incumbents

retire from the House in post-reapportionment election

cycles, more are defeated in primaries, more lose in the

November general elections, and fewer win landside

reelections. . . . [O}n average, since 1972, membership

turnover has been about 45% larger in_ post-

reapportionment Congresses, with 87 freshmen rather

than 60. If anything, this tendency for greater turnover

in post-redistricting election cycles had appeared to be

increasing, as the 1992 elections had generated a

freshman class with | 10 members.

20

Comparison of the 2002 Election

With Elections from 1972 to 2000

Average

“Normal” Average Post-

Election Reapportionment 2002

(1974-1980, Election a

1984-1990. lection

y 1972, 1982, 1992)

Category | 1994-2000) (

Incumbents 375 348 381

reelected

By >20 points 297 261 338

By <20 points 78 87 43

Incumbents 21 35 16

defeated

In the primary 3 13 8

In the general 18 22 8

Incumbent 37 48 35

retirements

New members 60 87 54

Hirsch, supra, at 183 & tbl. 1. In the 2002 election, however,

the opposite happened. Only 54 freshmen were elected—

fewer than average for an ordinary election, far fewer than the

average for post-reapportionment elections, and less than half

the figure for 1992. This lack of competitiveness was,

moreover, peculiar to House elections in 2002. While only

approximately nine percent of House seats were decided by

margins of ten percent or less, roughly half of U.S. Senate

and gubernatorial elections held on that same day were that

close. /d. at 183.

21

This fact bodes ill for the rest of the current reapportion-

meni cycle. Since competitiveness typically declines over the

course of each cycle, House elections will, if they follow

history, become increasingly uncompetitive over the coming

decade. In fact, since the 1960s, district competitiveness has

on average declined nearly 25 percent from the beginning to

the end of each reapportionment cycle. If that historical

falloff rate continues—and intercensus districting, like that

being tried by Texas and already accomplished by Colorado,

which aims to deaden competition in even more districts, can

only make it worse—by the end of this redistricting cycle

only 36 House seats will be competitive, i.e., won by fewer

than 55 percent of the major party vote.’

Deadened competition has both individual and aggregate

effects. On the individual level, it means that representatives

fear less the regular judgment of the voters. The less

competitive districts are, the less representatives will fear

defeat at the polls and the less responsive they will be to

general election voters. A representative who squeaks by will

be very sensitive to what constituents want; a representative

assured of a landslide less so. Uncompetitive districts, then,

weaken the structures of accountability that the Framers

believed made members of the House truly responsive to—

and thus truly representative of—the people. They substitute

responsiveness to party activists and donors for the rigorous

discipline that the Framers intended frequent elections to

place on members of the House.

* In the 1962, 1972, 1982, and 1992 elections, the first held in those

reapportionment cycles, a total of 279 seats were won within this margin.

In the 1970, 1980, 1990, and 2000 elections, by contrast, the last held in

these cycles, 212 seats were. See Brief of Bernard Grofman and Gary C.

Jacobson as Amici Curiae at 6 fig.2 (supplying figures for each year). The

average beginning-to-end falloff rate in this period is thus 24 percent.

Applying this figure to the 47 House seats decided within this margin in

the 2002 election predicts a decline to only 36 competitive seats in the

2010 elections.

22

On the aggregate level, deadened competition means that

the House of Representatives as a whole will not well reflect

changes in sentiment in the voters. Because so few districts

can realistically change parties, the House as a whole will fail

to track shifts in underlying popular opinion. A national

swing of five percent in voter opinion—a sea change in most

elections—will change very few seats in the current House of

Representatives. Gerrymandering thus creates a kind of

inertia arresting the House’s dynamic process. It makes it

less certain that votes in the chamber will reflect shifts in

popular opinion and thus frustrates change and creates

undemocratic slippage between the people and_ their

government.

B. By Artificially Advantaging One Political

Party over Another, Partisan Gerryman-

dering Can Substantively Skew Public Policy

for the Duration of the Reapportionment

Cycle.

Although partisan gerrymandering deadens competition

within individual districts, that is its method, not its aim. Its

aim, of course, is to give one of the major parties an

advantage over the other in Congress. Comparing the major

parties’ shares of the 2000 presidential vote in the pre- and

post-reapportionment House districts demonstrates how

thoroughly current political gerrymandering has achieved

this. As Gary Jacobson has explained, “The Bush-Gore vote

division provides an excellent approximation of district

partisanship. Short-term forces were evenly balanced in

2000, and party line voting was the highest in decades, hence

both the national and district-level! vote reflected the

underlying partisan balance with unusual accuracy.” Gary C.

Jacobson, Terror, Terrain, and Turnout, supra, at 9. In other

words, districts won by Democratic candidate Al Gore are

generally Democratic while districts won by Republican

candidate George W. Bush are generally Republican. As the

23

following figure shows starkly, the post-census redistrictings

helped make many districts comfortably but leanly

Republican and many other districts landslide Democratic.

The last cycle of redistricting, in other words, made the

parties’ seats differentially safe in a way that gave one side an

artificial edge in the House.

Distribution of Bush Districts and Gore Districts

in the 2002 Plans

a i lliteaa. =

50-55 55-60 60-65 65-70 70-75

2000 Presidential Vote in Each District

i Ts

Hirsch, supra, at 197. In fact, all the districts in the country

with party landslides of over 80 percent were won by a single

party. In some states, of course, Democratic-controlled redis-

trictings artificially plumped the Democrats’ share of the state

congressional delegation; in others, Republican-controlled

redistrictings artificially plumped the Republicans’. Both

sides are guilty of such advantage-taking because the stakes

are simply too high. In the 1980s, California Democrats were

among the most notorious offenders. See Badham v. Eu, 094

F. Supp. 664 (N.D. Calif. 1988)(3-judge court), aff'd, 489

U.S. 1024 (1989). In 2003, the Texas Republicans are trying

to be. On balance, however, as the figure above shows, the

24

post 2000 census plans advantaged the Republicans. The net

effect was to increase the number of Republican districts by

nine, from 228 to 237, Gary C. Jacobson, Terror, Terrain,

and Turnout, supra, at 9, and perhaps give it control of the

House for the remainder of the decade no matter what

happens politically in the nation.

Increasingly consistent and predictable voting behavior on

the district level, moreover, means that there is little chance

that partisan gerrymanders will become self-defeating.

Although some have speculated that partisan gerrymandering

is a self-limiting enterprise, see Cain, supra, at 151-59

(arguing that majority parties will be tempted to cut their

margins too thin in order to gain as many seats as possible

and will be thrown out of power by moderate shifts in voter

opinion), evidence from the last redistricting suggests less

tradeoff between partisan gains and safe seats. Indeed, the

more reliably voter behavior can be predicted, the smaller the

margins of victory redistricters can employ without having to

worry that their plans will later backfire. Furthermore, the

new-found eagerness of some state legislatures, like Texas

and Colorado, to redistrict between censuses in order to give

the majority party’s congressional candidates further

advantage—actions unprecedented since the reapportionment

revolution began in the 1960s—shows that legislatures can

recalibrate plans to ensure they never backfire. If a

legislature finds that it cut the majority’s party’s margins in

safe districts too thin in its efforts to capture many seats, tt

can—if the same party still controls the legislature—simply

fatten the margins a bit through periodic fine-tuning.

C. Partisan Gerrymandering Artificially In-

creases Ideological Polarization in the House.

By making individual districts uncompetitive, partisan

gerrymandering frustrates the representation of centrist views

in the House. Safe districts are drawn to be either more

conservative or more liberal than a non-gerrymandered

25

district would be; their average voter is intended to be reliably

off the overall median. Artificially skewing districts in this

way is what ensures the election of candidates from particular

parties. But that makes it less likely that candidates reflecting

the views of these median voters will be elected anywhere. In

advantaging one political party, then, partisan gerrymander-

ing not only (1) disadvantages the other major political party

and (2) makes districts uncompetitive, but also (3) makes

more difficult the representation of views from the center.

Another feature of gerrymandering exacerbates this

problem. Deadening competition between the major parties

shifts any real political competition in the district into one

party’s primary, where ideological activists dominate. David

Brady & Morris Fiorina, Congress in the Era of the

Permanent Campaign, in The Permanent Campaign and Its

Future 134, 135-36 (2000). Centrist candidates of both parties

have trouble surviving in safe districts because in the

primaries they must appeal to a group of voters representative

neither of the district as a whole nor of even the party as a

whole but only of the majority party’s most intense members.

More sharply ideological candidates appeal to this primary

electorate. Democratic primary voters vote for more !eft-

leaning candidates than the average Democrat, let alone the

average voter, would and Republican primary voters vote for

more right-leaning candidates than the average Republican or

average voter would. As a result, districts elect candidates

more extreme than the voters and the House has become

bipolar even though the country has stayed largely in the

middle. Making districts safe thus silences the vital center.

Unlike the Framers’ vision, a gerrymandered House reflects

not popular sentiment in all its diversity but the sentiment of

one extreme or the other in districts across the country. And

that is not the worst. Just as polarization within the House is

one of the primary effects of partisan gerrymandering, it is

also one of the primary causes. As discussed previously,

supra, at 11, polarization of a nearly evenly split House

26

greatly raises the stakes of redistricting and so increases the

incentives to gerrymander, which in turn leads to further

polarization in the House. Far from limiting itself, under

these conditions, partisan gerrymandering is self-intensifying.

Polarization and partisan gerrymandering form a vicious

circle where increases in one increase the likelihood of the

other. Together they ensure the defeat of the Framers’ clear

vision of the House.

CONCLUSION

Amici agree with Appellants’ arguments on the law. For

the reasons stated in Appellants’ brief on the merits and for

the reasons stated here, Amici stongly believe that this Court

should develop workable standards to discipline egregious

forms of partisan gerrymandering. According, Amici respect-

fully urge this Court to reverse the judgment of the district

court and remand the case for further proceedings.

Respectfully submitted,

TREVOR POTTER DANIEL R. ORTIZ

THE REFORM INSTITUTE Counsel of Record

211 North Union Street UNIVERSITY OF VIRGINIA

Suite 250 SCHOOL OF LAW

Alexandria, VA 22314 580 Massie Rd.

(703) 535-6897 Charlottesville, VA 22903

(434) 924-3127

Counsel for Amicus Curiae