Introduction

Former Democratic U.S. Rep. Dave Obey testifies at legislative hearing on Republican redistricting plans on July 13. 2011, in Madison, Wis. (Scott Bauer/AP)

When state legislators in Wisconsin began work last year on a plan for redistricting, the once-a-decade process when states draw new district maps for Congress and state legislatures, they found themselves presented with non-disclosure agreements requiring them to keep their deliberations confidential.

In Ohio, the Republican National Committee kicked off a training session on redistricting for state leaders by telling them to “keep it secret.”

Democratic leaders in Illinois held dozens of public hearings after promising a more open process. But all of the meetings came before the congressional redistricting maps were released, and the Democratic majority quickly approved their own proposals with little opportunity for the public, or Republicans, to voice concerns.

In the lead up to the most recent round of redistricting, which began last year with the release of data from the 2010 census, politicians, advocates and “good government” groups nationwide pushed to open the process to citizens and allow for broader debate than in the past. The idea was that a transparent process would lead to maps that made more sense geographically and better reflected voters’ interests.

But with few exceptions, the political parties in control of statehouses rammed their own partisan proposals through the legislatures as quickly as possible, leaving little more than nominal opportunities for the public to influence the process. In several states, legislatures outsourced the actual work to lawyers and used claims of attorney-client privilege to further exclude the public.

Earlier this year, the State Integrity Investigation, a data-driven analysis of state government accountability, reviewed each state’s redistricting process for transparency and potential for public input. Just 18 states received A’s; 24 received a D or an F.

Advocates, citizens and political parties have filed 194 lawsuits challenging congressional or state legislative lines in 41 states. Courts drew the final maps in nine states, either because the legislature’s maps were deemed discriminatory or because lawmakers could not agree on a final plan. Lawsuits are still pending in eight states. While the lines in those states are likely set for this election, the lawsuits could force new maps for 2014.

Despite all the litigation, experts say, the end result this time won’t be much different than in the past, when a procedure intended to assure that each American receives equal representation is instead used by Republicans and Democrats alike to game the system to their advantage. Republicans controlled four times as many state legislatures as did Democrats, but after the GOP won huge gains in 2010, there wasn’t much room to increase their advantage. The party’s intent instead, experts say, was to secure the seats they already have. According to an analysis by the Brennan Center for Justice, part of the New York University School of Law, Republicans pushed 11 additional districts to their advantage, meaning 241 seats now lean Republican, one fewer than the party currently holds as the result of a big victory in 2010.

Often, neither party can gain many seats overall through redistricting, so both seek to protect their incumbents, creating safer seats, less competitive elections and, some say, more partisan politicians.

Sen. Steve Gallardo, D-Phoenix, holds a news conference at the Arizona Capitol Nov.1, 2011 announcing his dismay at the handling of the Arizona Independent Redistricting Commission by legislative Republicans. (Ross D. Franklin/AP)

According to an analysis by Fair Vote, a nonprofit that advocates for election reform, the two parties have been so successful that only 74 congressional races, or 17 percent of seats, remain competitive, 15 fewer than in 2010.

To achieve safe seats, politicians sometimes drew splotchy, disjointed districts that carve up neighborhoods, throw together disparate groups whose concerns have little in common and make little sense in terms of representative democracy. Democrats working on Maryland’s 3rd district, a recent Washington Post editorial said, “split, severed or dissected” 42 of its precincts in an effort to cobble together a Democratic-leaning map. Two chunks of the district are not even connected to the rest. Opponents placed a measure on the November ballot that would overturn the state’s new districts.

The system “turns democracy on its head,” said Gerry Hebert, a former Justice Department lawyer who is now executive director of the Campaign Legal Center, a nonpartisan public interest group. He also runs a private practice focusing on redistricting and election law, and is currently arguing challenges to new maps in several states, including Texas. “Instead of voters choosing their representatives, which is how I understand it’s supposed to work, you have representatives choosing their voters.”

The ‘Gerry-mander’

The process of drawing district lines for partisan gain is as old as the nation. One early attempt was driven by Elbridge Gerry, who as governor of Massachusetts approved new district lines in 1812 to solidify his party’s reign over the state Senate. A cartoonist chose one particularly awkward looking district, stretched to pick-and-choose sympathetic voters, and drew it as a giant salamander, naming it the “Gerry-mander.”

Redistricting was not carried out consistently, however, leaving districts of vastly different size. By the 1960s, Los Angeles County’s population was 422 times greater than that of California’s least populous district, yet each had only one representative in Congress.

The Supreme Court ruled in 1962 that states must redraw their congressional and state legislative districts every ten years, after release of new census data, to ensure that everyone receives roughly equal representation. But the high court largely allowed the states to decide how they would go about it.

While most states have general guidelines for drawing new districts, including that they must be relatively compact in shape, most allow the legislature to draw lines largely as its members please. The only strict federal law, coming from the Voting Rights Act, is that district maps must adequately represent the state’s minority voters. The idea is to prevent legislators from packing minorities into a small number of districts or spreading groups across too many to dilute their vote. In several states with a history of discrimination, the federal government must approve (“preclear”) new maps.

Some states, including California and Arizona, have placed redistricting in the hands of nonpartisan or bipartisan independent commissions. Some have independent advisory boards. This time around, greater access to computers and open source technology enabled the public to at least try to influence the process like never before. Michael McDonald, an associate professor of government and politics at George Mason University, helped create public competitions in several states where students and others used software to generate their own district maps.

But these efforts largely failed to influence the final plans that states adopted, McDonald said. And in some cases, legislators only increased their efforts to maintain control and avoid public participation.

“You shine that spotlight,” he said, “and the cockroaches just scurry further into the shadows.”

With few exceptions, excluding the public and intentionally drawing districts for partisan gain remains the norm, and remains perfectly legal.

‘Ignore the Public’

Wisconsin Republicans were presented with a rare opportunity in 2011. For the first time in decades, one party controlled both houses of the Legislature and held the governor’s office in a redistricting year, enabling them to run the entire process.

The public was excluded. To help draw the maps, Republican leaders hired a law firm that required all legislators who wanted to discuss the plans to sign a confidentiality agreement. Legislative aides produced talking points instructing legislators to focus on what happened in their closed door sessions before the release. “Public comments on this map may be different than what you hear in this room,” the memo advised. “Ignore the public comments.”

Leaders published their proposals on July 8 and held only one public meeting, five days later. The plans had been ready at least a couple of weeks earlier, but the leaders would not even show them to many legislators. On July 19, the Senate approved the maps on a party line vote. The state’s redistricting process received an F from the State Integrity Investigation.

“The end result was a partisan gerrymander, pure and simple,” said Mike McCabe, director of the Wisconsin Democracy Campaign, a state watchdog group. “It was a highly secretive and highly partisan process.”

Assembly Speaker Jeff Fitzgerald, whose office reportedly produced the talking points, did not return calls and emails to his office and staff requesting comment.

Not until a group of citizens and legislators sued were documents released showing the concerted effort to exclude the public. A recent editorial in the Milwaukee Journal Sentinel reacted to reports the law firm hadn’t even turned over all the documents that the court requested, calling the Republicans’ politicking “simply outrageous.”

The extreme secrecy was part of an effort to approve new maps before the state’s recall elections, when Republicans ultimately lost control of the Senate. Legislative leaders were so intent on beating the recall that they actually rewrote a state law preventing them from drawing state-wide lines before local governments had drawn their own. The final lines plucked two Democratic-leaning cities from the district of a vulnerable GOP freshman and tacked them onto the left-leaning 3rd district. The result is an island of blue surrounded by Republican districts. The lines are being challenged in state court.

‘Lip service’

While Wisconsin’s process was especially controversial, the state is hardly alone. The State Integrity Investigation conducted dozens of interviews across the country and collected information on how each state handles redistricting. About half of the states provide little or no opportunity for public involvement, resulting in an opaque and often partisan process with little or no transparency. Several states charted a route similar to Wisconsin’s, using claims of attorney-client privilege to try to shield the process from public view.

In the state-by-state report cards, twenty-one received F’s on redistricting: Kentucky, New Hampshire, Wisconsin, North Dakota, Ohio, Alabama, Minnesota, Michigan, Tennessee, North Carolina, Georgia, Illinois, Pennsylvania, Indiana, Texas, West Virginia, Alaska, New York, Oklahoma, Maine and Utah. Grades of D or D- went to Maryland, Arkansas and Nevada. (Seven states have only one congressional representative. For those, the rankings focused on state legislative redistricting only.)

In Tennessee, legislative leaders promised “the most open, interactive and transparent” redistricting process in the state’s history. But Republican leaders did not release any information on the plans until the end of the process, about a week before they adopted the proposals. The party did not release full, detailed maps of state legislative districts until two weeks after the legislature had approved them.

Hebert said that in most states, calls from legislators for more transparency have led to nothing.

“It’s lip service,” he said. “They couldn’t care less what people say.”

One particularly blatant example occurred in 2003 in Texas, when Republicans, who were redrawing the state’s district lines after the party won a majority in the statehouse, convened in a central office.

“They actually took brown paper and pasted it up on the glass wall of the legislature offices so nobody could look in,” Hebert said.

Choosing Voters

While to some it seems unethical, many states allow legislators to draw maps for political gain and to protect incumbents. The Supreme Court has allowed plaintiffs to challenge maps based on partisan gerrymandering, but it’s never ruled in favor of such a claim. In effect, said Justin Levitt, a redistricting expert at Loyola Law School in Los Angeles, the court has said that too much partisan redistricting may be illegal, but it hasn’t said what would qualify as too much.

Two of the most dramatic examples of partisanship this last cycle were Illinois and North Carolina. Illinois presented Democrats with one of their only shots at reversing GOP gains from 2010, when the party won 11 of the state’s 19 House seats. Democrats control the Legislature and hold the governorship, the first time that’s happened in the state since 1970. After promising an open process, the legislature held 31 public hearings across the state on plans for the state Legislature. But only three of those occurred after legislative maps were released. Democrats held no meetings after publishing the congressional map, which came just four days before the final vote approving the plans.

Democrats were able to give themselves 11 safe seats, three more than they had before, even as the state lost a seat due to population shifts. They left Republicans with just two safe seats, with an additional five considered balanced, according to an analysis by Fair Vote. Courts rejected several challenges to the maps.

In North Carolina, however, Republicans made up for these losses. As detailed in the October issue of The Atlantic, state leaders hired Tom Hofeller, a seasoned GOP mapmaker, to help gain control of the state’s congressional delegation without running afoul of the Voting Rights Act; the state is among those that must submit maps for federal approval. Hofeller concentrated the state’s Democrats into a handful of districts, removing left-leaning enclaves from seats where Republicans might otherwise face tough challenges. The result is a map that favors Republicans 10-3 by snatching away a Democratic-leaning seat and eliminating the two toss-ups. The Department of Justice approved the maps, but a separate lawsuit claiming racial gerrymandering is still pending and could force new maps for 2014.

Even though state legislatures generally have the authority to draw new maps, it is an open secret that members of Congress often pick and choose where their district lines will lie. In Ohio, emails released in a lawsuit show that members of House Speaker John Boehner’s political team were in close contact with state leaders. In one note, state Senate President Thomas Niehaus told Tom Whatman, a member of Boehner’s team, that he would not approve a map without Boehner’s support. In another email, Whatman requested that state leaders extend one district line to include the headquarters of a top campaign donor to that district’s representative, Jim Renacci. The map also split the city of Toledo into three districts, a move that the deputy mayor said rendered the town “politically irrelevant.”

In testimony before the Ohio Senate Government Oversight and Reform Committee last year, Richard Gunther, a professor of political science at Ohio State, called the effort “the most grotesque partisan gerrymander,” he had ever seen. In an email message, Gunther added that Republicans are likely to hold 12 of the state’s 16 congressional seats even though the party rarely garners much more than half of the statewide vote.

Boehner’s political office did not return a request for comment for this story. Neither did the National Republican Congressional Committee, the Republican National Committee or the Democratic Congressional Campaign Committee.

A Mess in the Lone Star State

While most state legislatures operate for political gain, few can top the baldly partisan warfare in Texas. It was there, in 2003, that Democratic legislators fled the state in a failed attempt to prevent a vote on new district maps. The new lines helped flip the state’s congressional delegation in the 2004 election to majority Republican.

This year Republicans sought to hold those gains. But the party faced a problem it had experienced in the previous round as well: a growing Latino population that tends to favor Democrats. GOP leaders thought they’d found a way to keep their hold on power, but their tactics kicked off a complex web of lawsuits that eventually forced the state to delay its primaries from March to May.

The lawsuits uncovered documents showing exactly how Republicans tried to defy the demographic trend. In one email, a lawyer hired by the state’s GOP congressional delegation described how state legislators could remove Latinos who are more likely to vote from the district of a vulnerable Republican and switch them with Latinos who tend not to vote, taken from a Democratic-leaning district. The result would be a “nudge factor” that would keep Latino populations the same, thereby avoiding Voting Rights Act violations, while essentially weakening the power of the Latino vote.

Meanwhile, Republican leaders were granting requests from congressmen in Washington, D.C., to tweak their districts to include a country club or the school that one congressman’s “grand babies” attended.

State House Speaker Joe Straus declined to answer specific questions about redistricting but said in a statement that the maps reflect population changes. Opponents have charged that the GOP plan failed to add majority Latino districts even though Latinos account for 65 percent of the state’s population gain since 2000.

Texas Democrats also tried to shunt Latino voters out of districts where they thought they might pose a threat in primary elections, said Nina Perales, vice president of litigation at MALDEF, a Latino civil rights group that filed lawsuits in Texas and other states.

“Being a voting rights lawyer in Texas redistricting is like driving a very small car down the highway between two semis,” she said, “and those semis are the Democratic Party and the Republican Party.”

Ultimately, federal courts rejected some of the new districts, saying they did not adequately represent Latinos. The 2012 election will use lines that were drawn as a compromise at the direction of a federal court, but the state will have to draw new lines for 2014.

Taxpayers Foot the Bill

Litigation has become a necessary part of the redistricting process, but it’s one that is costing taxpayers millions of dollars each cycle. Gerry Hebert remembers seeing Tom Hofeller, the GOP redistricting expert, give a presentation on preparing for redistricting several years ago that illustrates the point. “He has a slide that says,‘never travel without counsel.’ I think that’s great advice, being a lawyer myself, but the meter’s running.”

While no one has estimated the total cost of all this litigation — with 194 suits filed in this cycle and 65 still active — the tab can run into the millions for each state. According to The Texas Tribune, legal fees had already cost taxpayers in that state close to $1.5 million as of April, and litigation is ongoing. In New Mexico, where a court drew the final lines, lawsuits cost the state $5.7 million. In Wisconsin, where litigation is not yet resolved, fees have topped $1 million.

Perales of MALDEF said the case of Texas shows how wasteful the system can be. Even though her organization and others work with legislators as they are drawing the maps to try to avoid litigation, political leaders continue to push plans that exclude minorities and the opposing party. “When the legislators hear our sound legal advice and they flaunt the rules, nobody can be surprised when we bring successful litigation,” she said. When challengers do win, states generally must pay the plaintiffs’ legal fees, too. “It’s very irresponsible for a state like Texas to adopt a plan that’s discriminatory.”

Hebert said majority parties often waste taxpayer money by forcing cases to trial rather than settling them. But with the system as it is, with little guidance from the Supreme Court on how far a political party can go to protect its incumbents, he stressed that litigation continues to be an important last resort. “Sometimes the courts are the only place you can have a fair shake,” he said.

Efforts at reform

A few states have attempted to address the partisan excesses by removing redistricting from the control of the legislature. In 2008, California voters passed a referendum creating an independent citizen commission to handle redistricting.

In previous cycles, the two major parties had struck an informal deal protecting incumbents on each side. This time, a group of eight citizen-commissioners held dozens of public meetings to help shape their proposals.

Advocates for redistricting reform have praised California, but it’s unclear how much the new system really changed the results. Democrats will likely maintain their dominance of the state’s congressional delegation, but most experts agree the new districts have put more heat on incumbents in a state where they have won 253 out of 255 races in the past five elections. In a well-publicized case, the new map has pitted two sitting Democratic congressmen against each other (voters also passed a law the puts the two most popular candidates from the primaries on the final ballot, regardless of party affiliation).

It’s also proven impossible to remove politics completely. A probe by the investigative news outlet ProPublica found that Democrats manipulated the system by having fake citizens groups represent the party’s interests at public meetings. Loyola’s Justin Levitt said it’s unlikely the Democrats’ tactics fooled the commissioners. He acknowledges the new system is still open to political influence, but he said it’s far better than the alternative and that it helped make more competitive races this year.

In Arizona too, politics intruded on what is supposed to be an independent commission. In 2000, voters there created a bipartisan commission consisting of two representatives of each party and an independent chair. Last year, as the commission was drawing new lines, Republican Gov. Jan Brewer sought to impeach both Democrats and the independent chair, Colleen Mathis, claiming they were favoring Democrats and operating in secret. The state senate did vote to remove Mathis in November, but a state court stepped in later that month and overturned the decision, returning Mathis to the position. The commission did approve final maps in January, though several lawsuits challenging the maps and the process remain unsettled.

“You’re never going to completely wash politics out of the process,” said McDonald, of George Mason University.

While the legislature in Florida maintains control of redistricting, voters passed a constitutional amendment in 2010 prohibiting lawmakers from implementing district lines that benefit a particular party or incumbent. The law opened the way for court challenges based on partisan gerrymandering, and opponents have done just that, with a trial scheduled to begin in February. The Brennan Center’s analysis found that Democrats gained two seats in the state even though Republicans controlled the process.

Advocates for reform stress that their best opportunity may be in the next year or two, when memories of the partisan squabbles are fresh and, importantly, when the next redistricting is years away. That means that state legislators who support reform may no longer be in office next time. If reforms lead to more competitive races, at least it will be someone else running in those races.

A coalition of advocacy groups in Ohio has placed an initiative on the November ballot that would create a system similar to California’s. Opponents have said the proposal would waste millions of taxpayer dollars.

Levitt of Loyola Law School and others say there’s no single system that works for every state, but the key is to ensure that lawmakers don’t have free rein to draw their own lines. As long as legislators can work the system in their favor and help keep their own jobs, they will.

“It’s not necessarily evil,” he said. “It’s natural.”