“The first instinct of power is the retention of power.” The words are Justice Antonin Scalia's, but the core insight is one long acknowledged by commentators and advocates across the ideological spectrum. These two books examine the manifestations of this instinct, one on the drawing of district lines and the other on the running of elections. If neither book furnishes a definitive answer to the question of how power's first instinct can be harnessed to promote a better democracy, that is mainly a function of the intransigence and complexity of the problems they so successfully illuminate.
Redistricting in the New Millenium compiles essays from leading election scholars, providing an expansive perspective on how incumbent legislators' self-interest dominates the drawing of district lines across the country. The book starts with an overview of redistricting since the 1960s, including assessments of the Voting Rights Act (VRA). It then offers case studies showing how the redistricting process actually works in different states (which turns out to be eerily similar to how sausages are made). It concludes by proposing some alternatives to single-member districts, ones designed to promote more fair and effective representation.
As Peter Galderisi and Bruce Cain note in their introduction, the fairness issues raised by redistricting are hardly new (p. 1). There can be no doubt, however, that the past four decades have witnessed enormous changes, much of it spurred by judicial intervention. Taken together, the book's essays can be viewed as a comprehensive assessment of three major legal developments during this period.
The first is the Supreme Court's articulation of the “one person, one vote” rule, most notably in Reynolds v. Sims (1964), which Chief Justice Earl Warren thought to be the Court's most important opinion during his tenure. This line of cases held that legislative districts must be of equal size, requiring that district lines be drawn decennially to account for population shifts. Gary Cox's essay “On the Systemic Consequences of Redistricting in the 1960s” (Chapter 2) summarizes the changes wrought by the one-person, one-vote rule. Cox finds that Democratic control of the judiciary abetted pro-Democratic redistricting during the 1960s, reversing the previous bias in favor of Republicans (p. 26). After that, however, there was little systemic partisan shift until the 1990s.
The second development is the application of racial equality norms to the reapportionment process. That includes the U.S. Department of Justice's vigorous enforcement of the Voting Rights Act in the 1990s to increase the number of majority-minority legislative districts, a policy that had the side effect of “bleaching” surrounding districts and thereby allowing Republicans to pick up legislative seats. It also includes the Supreme Court's decisions in Shaw v. Reno (1993) and its progeny, which held that the Constitution prohibits race from being used as the “predominant factor” in redistricting (pp. 92–100, 279) and led to the invalidation of majority-minority districts in several states. Part II includes opposing perspectives in the race and redistricting debate, particularly germane given that key provisions of the VRA will expire in 2007 unless renewed by Congress. Anthony Peacock questions whether expiring provisions of the VRA are still worth the burden they impose on the states (Chapter 6). David Canon, on the other hand, challenges Shaw's premise that white voters suffer a cognizable injury from being placed in black majority districts (Chapter 5). Richard Engstrom's chapter on district geography is also helpful in evaluating the Shaw doctrine, insofar as his findings suggest that the Court may have paid too much attention to compactness and conformity with county lines, and not enough attention to whether districts coincide with media markets (Chapter 4). Florence Adams adds a new wrinkle to the familiar black–white story, discussing the growing tension between increased Latino voting strength and the vested interests of Anglo incumbents (Chapter 7).
The third major development concerns partisan gerrymandering, a matter that the courts have mostly stayed out of, at least until now. Although Davis v. Bandemer (1986) held that excessive partisanship in gerrymandering could give rise to a constitutional claim, at least in theory, no reapportionment has ever been struck down on this ground (p. 315). Part III shows the consequences of the courts' laissez-faire approach. Chapters 8–12 describe the varied manifestations of incumbents' instinct to retain power—and in some instances to enhance it. For example, John Chamberlin describes how Republican control of Michigan's executive and legislative branches resulted in a redistricting plan that favored the GOP (Chapter 9). But such a strategy can backfire. Bernard Grofman and Thomas Brunell show how Democratic-controlled legislatures in some southern states created “dummymanders,” plans that seemed to benefit their party but in the long run helped Republicans (Chapter 8). Still another variant is California's post-2000 redistricting, in which the Democratic majority and Republican minority colluded to produce a bipartisan or “sweetheart” gerrymander (Chapter 10). Gary Jacobson explains how that plan virtually eliminated competitive districts, exacerbating the polarization of the state's legislature and congressional delegation (pp. 224–29).
Redistricting in the New Millenium is essential reading for anyone seeking to understand the redistricting process, a subject likely to assume even greater prominence given the unsettled state of the law and the recent changes in the U.S. Supreme Court's personnel. The Court is now considering a case challenging the Texas redistricting plan engineered by Rep. Tom DeLay, the background to which is detailed by Seth McKee and Daron Shaw (Chapter 13). At stake in this case is whether courts will intervene when the party in command of the redistricting process redraws the lines mid-decade for the sole purpose of maximizing its partisan advantage. For those seeking guidance on whether judicial intervention is warranted, the essays in this volume are a great place to start.
Equally unsettled, and of no less importance, is the fate of race-conscious redistricting. The Supreme Court's last pronouncement on racial gerrymandering, Easley v. Cromartie (2001), let stand a plan in which partisan considerations were found to predominate over racial ones, but it is doubtful that this is more than a temporary resolution of the competing norms of race consciousness (embodied in the VRA) and race blindness (embodied in the Shaw cases). While few racial gerrymandering challenges to post-2000 redistricting plans were successful (p. 99), this area is likely to be up for grabs in years to come. The issue of whether and how race should be considered in drawing district lines will also occupy Congress's attention, as it considers whether to reauthorize or amend the provisions of the VRA set to expire in 2007. And if these provisions are reauthorized, it is possible that the Roberts Court could find some of them unconstitutional. This book provides evidence that should be considered in assessing these issues, and in determining how to prevent the first instinct of power from denying fair representation to all citizens.
Ronald Hayduk's Gatekeepers of the Franchise scrutinizes the mechanics of election administration, a less commonly studied area than redistricting (at least in the last millennium) but one with a similarly turgid history of partisan gamesmanship. Since the 2000 election, there has been increasing attention to the administration of elections—including not only the “hanging chads” that gave rise to Bush v. Gore (2000) but also such matters as registration, provisional voting, and voter identification. The policy debate over legislation like the Help America Vote Act of 2002 has largely turned on the tension between access and integrity, with Democrats mainly pursuing the former goal and Republicans urging the latter.
This volume comes out decidedly on the side of greater access. Hayduk focuses on the state of New York, tracing the development of election practices from the days of Boss Tweed through the 2004 election. He maintains that allegations of voting fraud have often been exaggerated, and used to impede access to certain groups of voters—most often immigrants and racial minorities. For example, the author gives extended attention to the 1993 New York City mayoral election, in which Republican Rudy Giuliani defeated Democrat David Dinkins (Chapter 5). Hayduk argues that Republicans used claims of widespread voting fraud as a pretext to impose stringent ballot security measures that may have turned the election. Some may quibble with his liberal employment of the term “disenfranchisement” (he uses it to include any practice that has the effect of hindering voting, whether or not that is its intent). One might also question whether the policy recommendations he draws from New York's experience (Chapter 7) can readily be applied elsewhere, given that so much of the evidence on which he relies comes from New York City—an extraordinary electoral jurisdiction by almost any measure. Still, Hayduk's book makes a significant contribution to the emerging subfield of election administration, injecting some badly needed evidence into the access-versus-integrity debate, which all too often rests on intuitions rather than facts.
Whether or not one agrees with Hayduk's recommended reforms, Gatekeepers of the Franchise makes a strong case that partisanship in the administration of the elections—which received so much attention in both Florida 2000 and Ohio 2004—is a long-standing problem that demands attention. Like Redistricting in the New Millenium, Hayduk's book does a more effective job of diagnosing the problem than in prescribing a remedy for it. But for those seeking to understand the profound challenges to our democracy posed by the “first instinct of power,” both books are of great value.
