The New Yorker, December 8, 2003

HEADLINE: THE GREAT ELECTION GRAB;
BYLINE: JEFFREY TOOBIN

With his West Texas twang, loping swagger, and ever-present cowboy boots, Charlie Stenholm doesn't much look like or sound like anybody's idea of a victim. Since 1979, he has been the congressman for a sprawling district west of Dallas, and his votes have reflected the conservative values of the cattle, cotton, and oil country back home. He opposes abortion, fights for balanced budgets, and voted for the impeachment of President Clinton. His Web site features photographs of him carrying or firing guns. Through it all, though, Stenholm has remained a member of the Democratic Party, and for that offense he appears likely to lose his job after the next election.

Stenholm was a principal target in one of the more bizarre political dramas of recent years-the Texas redistricting struggle of 2003. Following the 2000 census, all states were obligated to redraw the boundaries of their congressional districts in line with the new population figures. In 2001, that process produced a standoff in Texas, with the Republican state senate and the Democratic state house of representatives unable to reach an agreement. As a result, a panel of federal judges formulated a compromise plan, which more or less replicated the current partisan balance in the state's congressional delegation: seventeen Democrats and thirteen Republicans. Then, in the 2002 elections, Republicans took control of the state house, and Tom DeLay, the Houston-area congressman who serves as House Majority Leader in Washington, decided to reopen the redistricting question. DeLay said that the current makeup of the congressional delegation did not reflect the state's true political orientation, so he set out to insure that it did.

"This was a fundamental change in the rules of the game," Heather Gerken, a professor at Harvard Law School, said. "The rules were, Fight it out once a decade but then let it lie for ten years. The norm was very useful, because they couldn't afford to fight this much about redistricting. Given the opportunity, that is all they will do, because it's their survival at stake. DeLay's tactic was so shocking because it got rid of this old, informal agreement." But Texas law contained no explicit prohibition on mid-decade redistricting, so the leadership of the state government, now unified in Republican hands, tried during the summer of 2003 to push through a new plan. Democrats attempted novel forms of resistance. In May, fifty-one House members fled to Oklahoma, to deprive the new leadership of a quorum; in July, a dozen senators decamped to New Mexico, for the same purpose. But defections and the passage of time weakened Democratic resolve, and, on October 13th, the plan sponsored by DeLay was passed.

"They did everything they could to bust up my political base," Stenholm told me. "They drew my farm and where I grew up into the Amarillo district, and they drew Abilene, where I live now, into the Lubbock district." As a result, Stenholm will be forced to run in one of these districts if he wants to remain in the House. The new map creates similar problems for half a dozen other incumbent Texas Democrats, so the reapportionment may add as many as seven new Republicans to the G.O.P. majority in the House of Representatives and shift the state's delegation to 22-10 in favor of the Republicans. "Politics is a contact sport," Stenholm said. "I've been in this business twenty-five years. I will play the hand I was dealt."

In Texas and elsewhere, redistricting has transformed American politics. The framers of the Constitution created the House of Representatives to be the branch of government most responsive to changes in the public mood, but gerrymandered districts mean that most of the four hundred and thirty-five members of Congress never face seriously contested general elections. In 2002, eighty-one incumbents ran unopposed by a major party candidate. "There are now about four hundred safe seats in Congress," Richard Pildes, a professor of law at New York University, said. "The level of competitiveness has plummeted to the point where it is hard to describe the House as involving competitive elections at all these days." The House isn't just ossified; it's polarized, too. Members of the House now effectively answer only to primary voters, who represent the extreme partisan edge of both parties. As a result, collaboration and compromise between the parties have almost disappeared. The Republican advantage in the House is modest-just two hundred and twenty-nine seats to two hundred and six-but gerrymandering has made the lead close to insurmountable for the foreseeable future.

The off-cycle timing of the Texas redistricting fight, as well as the farcical drama of the fleeing Democratic legislators, made the saga look like a colorful aberration. But the results of that altercation merely replicated what happened, after the 2000 census, in several other states where Republicans controlled the governorship and the legislature. Even in states where voters were evenly divided, the Republicans used their advantage in the state capitals to transform their congressional delegations. In Florida, the paradigmatically deadlocked state, the new district lines sent eighteen Republicans and seven Democrats to the House. In the Gore state of Michigan, which lost a seat in redistricting, the delegation went from 9-7 in favor of the Democrats to 9-6 in favor of the Republicans-even though Democratic congressional candidates received thirty-five thousand more votes than their Republican opponents in 2002.

After 2000, Pennsylvania lost two seats in Congress, and its legislature had to establish new district lines. Republican legislative leaders there engaged in no subterfuge; they candidly admitted that they intended to draw the lines to favor their party as much as possible. In the midst of the battle over the Pennsylvania plan, DeLay and Dennis Hastert, the Speaker of the House, sent a letter to the Pennsylvania legislators, saying, "We wish to encourage you in these efforts, as they play a crucial role in maintaining a Republican majority in the United States House of Representatives." The Republicans in Harrisburg used venerable techniques in redistricting, like "packing," "cracking," and "kidnapping." Packing concentrates one group's voters in the fewest possible districts, so they cannot influence the outcome of races in others; cracking divides a group's voters into other districts, where they will be ineffective minorities; and kidnapping places two incumbents from the same party in the same district.

The Republicans carved up Pennsylvania into many strangely shaped districts, which won monikers like the "supine seahorse" and the "upside-down Chinese dragon." Such nicknames for gerrymandered districts go back to the origin of the term, which was coined as an epithet to mock Massachusetts Governor Elbridge Gerry, who in 1811 approved an election district that was said to resemble a salamander. Like most gerrymanders throughout history, the Republicans' creation in Pennsylvania produced the desired results. Even though a Democrat, Ed Rendell, won the governorship in 2002, Republicans in that election took control of twelve of the nineteen House seats.

Democrats accomplished less in the 2000 redistricting cycle only because they controlled fewer states and thus could do less to protect their interests. DeLay's mid-cycle reapportionment may be without precedent, but Democrats have their own inglorious history of gerrymandering. Before the Texas coup this year, the most notorious redistricting operation in recent years was the one run by Representative Philip Burton, following the 1980 census in California, which transformed the Democrats' advantage in House seats there from 22-21 to 27-18. In 2002, a Democratic plan in Maryland turned that delegation from being evenly divided to a 6-2 Democratic advantage, and Georgia Democrats gained two seats in the House even though in the same election voters rejected a Democratic governor and a Democratic United States senator. In California, where Democrats also controlled the process, they settled for protecting incumbents of both parties. There, in 2002, not one of fifty general-election House challengers won even forty per cent of the total vote.

There is no doubt, though, that on balance the 2000 redistricting cycle amounted to a major victory for Republicans. Even though Al Gore and George W. Bush split the combined vote in Florida, Pennsylvania, Ohio, and Michigan, Republican control of the process meant that, after redistricting, the G.O.P. now holds fifty-one of those states' seventy-seven House seats. "The important thing to realize was in 1991 the Republicans had control of line-drawing in a total of five congressional districts," one G.O.P. redistricting expert told me. "In 2001, it was almost a hundred seats. Both parties made the most of it."

Since the 2000 cycle, these Republican gains have locked in and even expanded. To see how this was done, I asked Nathaniel Persily, a genial assistant professor of law and political science at the University of Pennsylvania, to visit my office and bring his laptop. Persily, who is thirty-three, has built a reputation as a nonpartisan expert and occasional practitioner in the field of redistricting.

Before 1990, most state legislators did their redistricting by taking off their shoes and tiptoeing with Magic Markers around large maps on the floor, marking the boundaries on overlaid acetate sheets. Use of computers in redistricting began in the nineties, and, as Persily demonstrated, it has now become a science. When Persily opened his computer, he showed me a map of Houston, detailed to the last census block. (The population of each block usually ranges from fewer than a dozen to about a thousand.) "This is the same map that DeLay's people used to redistrict," Persily said. Indeed, DeLay's political operation purchased ten copies of the software, which is called Caliper's Maptitude for Redistricting and costs about four thousand dollars per copy. The software permits mapmakers to analyze an enormous amount of data-party registration, voting patterns, ethnic makeup from census data, property-tax records, roads, railways, old district lines. "There's only one limit to the kind of information you can use in redistricting-its availability," Persily said. (In Pennsylvania, Republicans used Carnegie-Mellon University's mainframe computer, which would have allowed them to add even more data, such as real-estate transactions.)

With a few clicks, Persily changed the map from one that showed party registration in each census block to one that revealed voting results in each block. The colors ranged from dark red, for heavily Democratic votes, to dark blue, for strongly Republican. He showed voting results in about two dozen races, from President to governor and from congressman to local offices. "The whole process has got much more sophisticated," Persily went on. "Party-registration data are not the only kind of data you want to use. You want to use real election results. That's a big change from ten years ago. We have become very good at predicting how people are going to vote. People's partisanship is at a thirty-year high. If I know you voted for Gore, I am better able to predict that you are going to vote for any given Democrat in a future election."

The effects of partisan gerrymandering go well beyond the protection of incumbents and the guarantee of continued Republican control. It has also changed the kind of people who win seats in Congress and the way they behave once they arrive. Jim Leach, a moderate Republican and fourteen-term congressman from Iowa, has watched the transformation. Leach agrees with Richard Pildes on the numbers: "A little less than four hundred seats are totally safe, which means that there is competition between Democrats and Republicans only in about ten or fifteen per cent of the seats.

"Then you have to ask who are those people who vote in primaries," Leach went on. "They are the real partisans, the activists, on both sides. A district that is solidly Republican is a district that is more likely to go to the more conservative side of the Republican part of the Party for candidates and platforms. Presidential candidates go to the left or the right in the primaries and then try to get back in the center. In House politics, if your district is solidly one party, your only challenge is from within that party, so you have every incentive for staying to the more extreme side of your party. If you are Republican in an all-Republican district, there is no reason to move to the center. You want to protect your base. You hear that in Congress all the time, in both parties-'We've got to appeal to our base.' It's much more likely that an incumbent will lose a primary than he will a general election. So redistricting has made Congress a more partisan, more polarized place. The American political system today is structurally geared against the center, which means that the great majority of Americans feel left out of the decision-making process."

Scholarly research gives some support to Leach's impressions. "Partisan gerrymandering skews not only the positions congressmen take but also who the candidates are in the first place," Issacharoff, of Columbia, said. "You get more ideological candidates, the people who can arouse the base of the party, because they don't have to worry about electability. It's becoming harder to get things done, whether in Congress or in state legislatures, because partisan redistricting goes on at the state level, too."

The framers of the Constitution designed the House of Representatives to reflect the popular will. James Madison, in the Federalist Papers, said the House was meant to be a "numerous and changeable body," where the members would have "an habitual recollection of their dependence on the people." While the House was supposed to be impetuous, the Senate was intended to be stable. Madison said that senators would serve six-year terms as a defense against "the impulse of sudden and violent passions" of the House, and the members of the Senate were to be elected by state legislators, providing a further level of insulation from the popular will. (The Constitution was amended to require direct election of senators in 1913.) The Senate had to remain stable, Madison wrote, because "every new election in the states is found to change one half of the representatives."

Today, the House and the Senate have precisely flipped roles. Senate races, which are not subject to redistricting, are decided by actual voters, who do indeed change their minds with some regularity. Control of the Senate has shifted five times since the nineteen-eighties. The House, by contrast, has changed hands just once in the same period, in the Republican takeover of 1994. In 2002, only one out of twelve House elections was decided by ten or fewer percentage points, while half of the governors' and Senate races were that close. In 2002, only four House challengers defeated incumbents in the general election-a record low in the modern era. In a real sense, the voters no longer select the members of the House of Representatives; the state legislators who design the districts do.

One state that has gone its own way is Iowa, which turned redistricting over to a nonpartisan civil-service commission after the 2000 census. Consequently, four of Iowa's five House races in 2002 were competitive, so a state with one per cent of the seats in the House produced ten per cent of the nation's close elections.

Professor’s note: In this article written in 2003, Jeffrey Toobin claims that the “Republican advantage in the House is modest-just two hundred and twenty-nine seats to two hundred and six-but gerrymandering has made the lead close to insurmountable for the foreseeable future.”   This “insurmountable lead” for the “foreseeable future” persisted just three years until 2006.  The 2008 partisan composition of the House was Democrats two hundred and fifty-eight seats and Republicans one hundred seventy-seven seats.  In the 2010 mid-term election, The Republicans won a decisive Congressional victory, reinstalling their majority status in the House with an approximate majority of 240 seats.

Students should be wary of predictions about the future, including the one in this article that gerrymandering creates a lack of competitiveness and partisan turnover of districts in the House of Representatives.  While experts can help us understand the past and the present, they are of little use in predicting the future.  To further illustrate this point, I will cite a summary written by Jonathan Lehrer of the Wall Street Journal of a study done by Philip Tetlock, a psychologist at U C, Berkeley.

[Philip Tetlock] picked 284 people who made their living "commenting or offering advice on political and economic trends," including journalists, foreign policy specialists, economists and intelligence analysts, and began asking them to make predictions. Over the next two decades, he peppered them with questions: Would George Bush be re-elected? Would apartheid in South Africa end peacefully? Would Quebec secede from Canada? Would the dot-com bubble burst? In each case, the pundits rated the probability of several possible outcomes. By the end of the study, Mr. Tetlock had quantified 82,361 predictions.

How did the experts do? When it came to predicting the likelihood of an outcome, the vast majority performed worse than random chance. In other words, they would have done better picking their answers blindly out of a hat. Liberals, moderates and conservatives were all equally ineffective. Although 96% of the subjects had post-graduate training, Mr. Tetlock found, the fancy degrees were mostly useless when it came to forecasting.

The main reason for the inaccuracy has to do with overconfidence. Because the experts were convinced that they were right, they tended to ignore all the evidence suggesting they were wrong. This is known as confirmation bias, and it leads people to hold all sorts of erroneous opinions. Famous experts were especially prone to overconfidence, which is why they tended to do the worst. Unfortunately, we are blind to this blind spot: Most of the experts in the study claimed that they were dispassionately analyzing the evidence. In reality, they were indulging in selective ignorance, as they explained away dissonant facts and contradictory data. The end result, Mr. Tetlock says, is that the pundits became "prisoners of their preconceptions." And their preconceptions were mostly worthless.

What's most disturbing about Mr. Tetlock's study is that the failures of the pundit class don't seem to matter. We rely on talking heads more than ever, even though the vast majority of them aren't worth their paychecks. Our political discourse is driven in large part by people whose opinions are less accurate than a coin toss.

Mr. Tetlock proposes forming a nonpartisan center to track the performance of experts, just as we track the batting averages of baseball players. In the meantime, he suggests that we learn to ignore those famous pundits who are full of bombastic convictions. "I'm always drawn to the experts on television who stumble a little on their words," he adds. "For me, that's a sign that they're actually thinking about the question, and not just giving a canned answer. If an expert sounds too smooth, then you should probably change the channel."

As Mr. Tetlock points out, the future is impossible to predict. Even with modern polling, we can barely anticipate the outcome of an election that is just a few days away. If a pundit looks far beyond that time horizon, to situations with a thousand variables and very little real information to back up a prediction, we should stop listening and get out a quarter.

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The NYT provided a graphic and concrete illustration of the different techniques of gerrymandering which students should view.  20100925-redistricting-graphic.pdf

Questions:  According to Jeffrey Toobin, what has been the impact of gerrymandering on American politics?  How does our gerrymandered system alter the constitutional system intended by the framers?  What implications does gerrymandering have for U.S. democracy?