Mid-Decade Congressional Redistricting in a Red and Blue Nation

Summary

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The political and public policy considerations discussed in this Note unmistakably show that mid-decade redistricting presents an affront to the democratic process. Mid-decade redistricting eviscerates the Framers' goals of making the House of Representatives both accountable to and representative of the people. Pursuing redistricting more than once per decade breaks the bond between a representative and his constituents. In addition, the quality of overall representation is likely to decline since it is the congressmen who are most popular and best able to achieve cross-over appeal who will be targeted. Finally, mid-decade redistricting has the potential to end competitive elections. The party in power will have the ability to entrench itself further, election after election, thus leading to the near demise of the minority party within the state, and establishing one-party control over the state's congressional delegation. For these reasons, it is essential for Congress to exercise its supervisory power to enact legislation preventing the use of mid-decade redistricting. Should Congress fail to do so, there is a serious risk that elections in many states will become mere formalities, and that the people of these states will receive subpar representation.

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Mid-Decade Congressional Redistricting in a Red and Blue Nation

I. INTRODUCTION

Following the 2002 elections, Republicans in Texas and Colorado achieved unified control of their state governments.1 In both states, Republicans introduced congressional redistricting legislation and enacted a new redistricting map. Just a year earlier, following the release of the decennial census, each state had enacted a congressional redistricting map that had governed the 2002 elections. The second round of legislation marked the first time in United States history that a state reopened redistricting for partisan political purposes after a redistricting plan had been adopted following the release of the decennial census, had been upheld as constitutional, and had been used in an intervening election. Democrats in both states filed lawsuits, alleging not only that Article I of the Constitution forbids a state from engaging in redistricting after the state already has used a valid map in an election following release of the census but also that the mid-decade redistricting plans were unconstitutional partisan gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment.2

Part II of this Note will use Texas as a case study to provide insight into the redistricting process. Part III will examine the differing conclusions of the Colorado and Texas courts on the constitutionality of mid-decade redistricting. This Note will then address two challenges to this unprecedented use of mid-decade congressional redistricting. Part IV of this Note will address whether a state legislature has the authority under Article I of the Constitution to redraw a lawfully-enacted congressional redistricting plan after it has been used in one or more elections but before the next decennial census. Since this is a question of first impression,3 this Note will analyze the issue according to the text of the Constitution, the intent of the Framers of the Constitution, and analogous redistricting precedents. Part V will address whether mid-decade redistricting qualifies as an intentional partisan gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment. This Note ultimately concludes that states have the plenary power to conduct mid-decade redistricting, subject only to the supervisory power of Congress. Finally, in Part VI, this Note proposes that, because of vital public policy considerations, Congress exercise its supervisory power to prohibit redistricting until the release of the next decennial census after a lawfully enacted map has already been used in an election.

II. TEXAS: A CASE STUDY IN REOPENING REDISTRICTING

The Texas Constitution provides that the legislature "shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts."4 Although the Texas Constitution does not explicitly address federal congressional districts, the legislature's consistent practice has been to handle federal congressional redistricting as it does state redistricting.5 In Texas' seventy-seventh legislature's regular session, which ran through May 2001, the legislature could not reach an agreement on a new congressional plan, and Governor Rick Perry opted not to call a special session to complete a redistricting map.6 This failure to act required the courts to produce a redistricting map consistent with constitutional guidelines.

On November 14, 2001, the United States District Court for the Eastern District of Texas, based both on findings that the thirty existing congressional districts in Texas were unconstitutional and on the "continuing failure of the S...

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