Democrats Still Paying the Price for 2010 Losses

Party leaders are going to court to overturn redistricting maps that followed the GOP’s midterm landslide.

Tina Garcia shows support for returning Texas Democrats in front of the Texas State Capital in Austin.
National Journal
Steven Shepard
Jan. 21, 2014, midnight

The 2010 midterm elec­tions could not have gone much worse for Demo­crats. Not only did the party lose con­trol of the House of Rep­res­ent­at­ives and six seats in the Sen­ate, the GOP picked up just shy of 700 state le­gis­lat­ive seats, con­trolling 56 of the 99 cham­bers throughout the coun­try. Adding to their gains in the states, Re­pub­lic­ans also picked up six gov­ernor­ships in 2010, ce­ment­ing their ad­vant­age.

But it wasn’t just the breadth of Demo­crat­ic losses that made them so dam­aging for the party; it was also the tim­ing. Fol­low­ing the 2010 census, the na­tion’s con­gres­sion­al dis­tricts were re­ap­por­tioned, and so were state le­gis­lat­ive dis­tricts across the coun­try. And it was Re­pub­lic­ans who con­trolled the mech­an­isms by which those dis­tricts were drawn in many states.

“Re­pub­lic­ans were for­tu­nate enough to have a na­tion­al wave elec­tion in the worst pos­sible year for Demo­crats,” said Mi­chael Sar­geant, ex­ec­ut­ive dir­ect­or of the Demo­crat­ic Le­gis­lat­ive Cam­paign Com­mit­tee, which provides sup­port for Demo­crat­ic state le­gis­lat­ive can­did­ates and drew at­ten­tion to the im­port­ance of the 2010 races — as did its Re­pub­lic­an coun­ter­part, headed at the time by now-Vir­gin­ia Sen­ate can­did­ate Ed Gillespie.

Re­pub­lic­ans used the re­dis­trict­ing pro­cess to lock in many of the gains they made in 2010, and, for the most part, Demo­crats were power­less to stop them. But in a hand­ful of states, Demo­crats and Demo­crat­ic-aligned groups have taken the maps to court.

These law­suits re­flect a broad­er trend. The Su­preme Court struck down a key pro­vi­sion of the Vot­ing Rights Act last year, elim­in­at­ing the need for states with a his­tory of ra­cial dis­crim­in­a­tion to pre­clear changes to vot­ing laws with the Justice De­part­ment and the courts. At the same time, a num­ber of GOP-con­trolled states have passed laws re­quir­ing voters to show photo iden­ti­fic­a­tion and re­strict­ing early vot­ing.

Mem­bers of Con­gress pro­posed bi­par­tis­an le­gis­la­tion last week that would ad­dress the high court’s ob­jec­tions to the Vot­ing Rights Act, but with Con­gress di­vided, it’s un­likely to be­come law any­time soon.

Act­ive re­dis­trict­ing lit­ig­a­tion fo­cuses on three states where Re­pub­lic­ans used ma­jor­it­ies in the Le­gis­lature to draw maps to ce­ment their ad­vant­age: Texas, Flor­ida, and North Car­o­lina. Demo­crats in D.C. are mon­it­or­ing these cases, but they aren’t count­ing on the lines chan­ging between now and the 2014 midterm elec­tions; in Texas, primar­ies are only six weeks away.

If the lines don’t change, however, it will make it hard for Demo­crats to win back the House — and even harder for them to undo the dam­age dur­ing the next re­dis­trict­ing cycle, after the 2020 census.

Texas

The Lone Star State gained four con­gres­sion­al seats in re­ap­por­tion­ment be­cause of rap­id pop­u­la­tion growth over the last dec­ade. Re­pub­lic­ans in the state Le­gis­lature ac­ted ag­gress­ively and drew a map to make those dis­tricts Re­pub­lic­an seats, even though His­pan­ics and Afric­an-Amer­ic­ans, who mostly vote Demo­crat­ic, ac­coun­ted for 90 per­cent of the state’s pop­u­la­tion gains.

“They drew all four of the dis­tricts such that Anglo-Re­pub­lic­ans would con­trol the out­come,” said Mi­chael Li, a Texas law­yer who runs the blog TXre­dis­trict­ing.org.

Demo­crats and minor­ity groups sued, and after a case that even­tu­ally reached the Su­preme Court, a fed­er­al court drew a map that cre­ated a 2-2 split among the new dis­tricts. But the case is still pending: These groups al­lege that the ini­tial maps were acts of ra­cial dis­crim­in­a­tion, which should force Texas back un­der the Vot­ing Rights Act again, even though the maps have been fixed. “I like to tell people,” Li said, “if you get caught shoplift­ing and you say, ‘I put the stuff back on the shelf,’ that doesn’t work.”

Re­pub­lic­ans al­lege that the lines wer­en’t drawn to dis­en­fran­chise minor­it­ies, but just to boost Re­pub­lic­ans. “They will say that we did this for par­tis­an pur­poses,” Li said. “We were just dis­crim­in­at­ing against Demo­crats.”

A tri­al is set to be­gin in Ju­ly, but Li doesn’t think judges in Texas will have the last word. “It will be ul­ti­mately de­cided by the Su­preme Court,” he pre­dicts.

Flor­ida

In Flor­ida, the is­sues be­fore a court there aren’t re­lated to the U.S. Con­sti­tu­tion, and Re­pub­lic­ans’ de­fense in Texas won’t work in the Sun­shine State.

Voters in 2010 passed amend­ments to the state con­sti­tu­tion that pro­hib­ited le­gis­lat­ors from con­sid­er­ing the de­sires of in­cum­bents or polit­ic­al parties in re­draw­ing the con­gres­sion­al and state le­gis­lat­ive lines. But that’s ex­actly what pe­ti­tion­ers al­lege the GOP-con­trolled Le­gis­lature did, and the battles thus far have been over wheth­er le­gis­lat­ors should be re­quired to testi­fy about the re­dis­trict­ing pro­cess and wheth­er doc­u­ments and oth­er work products should be turned over to the courts.

“The big fight over the last year hasn’t been on the sub­stance at all,” said Justin Levitt, a pro­fess­or at Loy­ola Law School in Los Angeles and chron­icler of re­dis­trict­ing lit­ig­a­tion at his web­site, All About Re­dis­trict­ing.

But dis­cov­ery hasn’t been easy for the lit­ig­ants. Even though the state Su­preme Court ruled last month that le­gis­lat­ive lead­ers must turn over doc­u­ments re­lated to re­dis­trict­ing, those lead­ers say they’ve already sub­mit­ted everything they were re­quired to, and they say oth­er doc­u­ments have been des­troyed.

This adds an­oth­er wrinkle to the case, and ef­forts to de­term­ine what was des­troyed will take ad­di­tion­al time that could leave the cur­rent maps in ef­fect for 2014.

North Car­o­lina

Re­pub­lic­ans won big in North Car­o­lina in 2010, grabbing con­trol of both cham­bers of the Le­gis­lature (it was the first time since Re­con­struc­tion that the GOP con­trolled the state Sen­ate). And even though the gov­ernor, Bev Per­due, was a Demo­crat, she couldn’t veto the maps. Re­pub­lic­ans were able to push through a map that net­ted the party three con­gres­sion­al seats — and they are likely to win a fourth since Demo­crat­ic Rep. Mike McIntyre an­nounced he won’t run for reelec­tion this year.

Demo­crats held a 7-6 ad­vant­age in the state’s con­gres­sion­al del­eg­a­tion, even after the 2010 wave. This year’s midterm elec­tions are likely to res­ult in a 10-3 GOP lead.

But Demo­crats and minor­ity groups are fight­ing back in the courts, al­leging that GOP le­gis­lat­ors packed Afric­an-Amer­ic­an voters in­to con­gres­sion­al dis­tricts to di­lute their in­flu­ence else­where.

“The North Car­o­lina law­suit is an ar­gu­ment say­ing you paid more at­ten­tion to race than you should have,” Levitt said.

The state Su­preme Court heard ar­gu­ments on the case two weeks ago but didn’t of­fer any in­dic­a­tion on when it might is­sue a rul­ing, The News & Ob­serv­er of Raleigh, N.C., re­por­ted.

The Over­all Land­scape

Re­dis­trict­ing law­suits aren’t con­fined to those three states. At the state le­gis­lat­ive level, there are act­ive court chal­lenges in states like Alabama, New York, and Wyom­ing. And Demo­crats also used re­dis­trict­ing to tilt the play­ing field in the states they con­trolled, such as Illinois.

But it is in those three states where Demo­crats are pay­ing the biggest price at the con­gres­sion­al level for their dis­astrous 2010 — a price that is mak­ing it harder to win back the seats they lost. Their hope is that demo­graph­ic changes dur­ing the rest of the dec­ade out­run the maps drawn by Re­pub­lic­ans and make some of these seats com­pet­it­ive again.

The DLCC’s Sar­geant says his group is mon­it­or­ing those law­suits, but it has already moved on to the next pre-re­dis­trict­ing cycle, when the party can try to win back some of those state le­gis­lat­ive cham­bers; Demo­crats already won eight of them in 2012, he said.

And be­cause 2020 will be a pres­id­en­tial-elec­tion year, Sar­geant thinks Demo­crats will do a bet­ter job of turn­ing out their voters than they did in 2010. “We have a lot more op­tim­ism for the [2020] re­dis­trict­ing,” he said. “Clearly, we do.”

Texas

The Lone Star State gained four con­gres­sion­al seats in re­ap­por­tion­ment be­cause of rap­id pop­u­la­tion growth over the last dec­ade. Re­pub­lic­ans in the state Le­gis­lature ac­ted ag­gress­ively and drew a map to make those dis­tricts Re­pub­lic­an seats, even though His­pan­ics and Afric­an-Amer­ic­ans, who mostly vote Demo­crat­ic, ac­coun­ted for 90 per­cent of the state’s pop­u­la­tion gains.

“They drew all four of the dis­tricts such that Anglo-Re­pub­lic­ans would con­trol the out­come,” said Mi­chael Li, a Texas law­yer who runs the blog TXre­dis­trict­ing.org.

Demo­crats and minor­ity groups sued, and after a case that even­tu­ally reached the Su­preme Court, a fed­er­al court drew a map that cre­ated a 2-2 split among the new dis­tricts. But the case is still pending: These groups al­lege that the ini­tial maps were acts of ra­cial dis­crim­in­a­tion, which should force Texas back un­der the Vot­ing Rights Act again, even though the maps have been fixed. “I like to tell people,” Li said, “if you get caught shoplift­ing and you say, ‘I put the stuff back on the shelf,’ that doesn’t work.”

Re­pub­lic­ans al­lege that the lines wer­en’t drawn to dis­en­fran­chise minor­it­ies, but just to boost Re­pub­lic­ans. “They will say that we did this for par­tis­an pur­poses,” Li said. “We were just dis­crim­in­at­ing against Demo­crats.”

A tri­al is set to be­gin in Ju­ly, but Li doesn’t think judges in Texas will have the last word. “It will be ul­ti­mately de­cided by the Su­preme Court,” he pre­dicts.

Florida

In Flor­ida, the is­sues be­fore a court there aren’t re­lated to the U.S. Con­sti­tu­tion, and Re­pub­lic­ans’ de­fense in Texas won’t work in the Sun­shine State.

Voters in 2010 passed amend­ments to the state con­sti­tu­tion that pro­hib­ited le­gis­lat­ors from con­sid­er­ing the de­sires of in­cum­bents or polit­ic­al parties in re­draw­ing the con­gres­sion­al and state le­gis­lat­ive lines. But that’s ex­actly what pe­ti­tion­ers al­lege the GOP-con­trolled Le­gis­lature did, and the battles thus far have been over wheth­er le­gis­lat­ors should be re­quired to testi­fy about the re­dis­trict­ing pro­cess and wheth­er doc­u­ments and oth­er work products should be turned over to the courts.

“The big fight over the last year hasn’t been on the sub­stance at all,” said Justin Levitt, a pro­fess­or at Loy­ola Law School in Los Angeles and chron­icler of re­dis­trict­ing lit­ig­a­tion at his web­site, All About Re­dis­trict­ing.

But dis­cov­ery hasn’t been easy for the lit­ig­ants. Even though the state Su­preme Court ruled last month that le­gis­lat­ive lead­ers must turn over doc­u­ments re­lated to re­dis­trict­ing, those lead­ers say they’ve already sub­mit­ted everything they were re­quired to, and they say oth­er doc­u­ments have been des­troyed.

This adds an­oth­er wrinkle to the case, and ef­forts to de­term­ine what was des­troyed will take ad­di­tion­al time that could leave the cur­rent maps in ef­fect for 2014.

North Carolina

Re­pub­lic­ans won big in North Car­o­lina in 2010, grabbing con­trol of both cham­bers of the Le­gis­lature (it was the first time since Re­con­struc­tion that the GOP con­trolled the state Sen­ate). And even though the gov­ernor, Bev Per­due, was a Demo­crat, she couldn’t veto the maps. Re­pub­lic­ans were able to push through a map that net­ted the party three con­gres­sion­al seats — and they are likely to win a fourth since Demo­crat­ic Rep. Mike McIntyre an­nounced he won’t run for reelec­tion this year.

Demo­crats held a 7-6 ad­vant­age in the state’s con­gres­sion­al del­eg­a­tion, even after the 2010 wave. This year’s midterm elec­tions are likely to res­ult in a 10-3 GOP lead.

But Demo­crats and minor­ity groups are fight­ing back in the courts, al­leging that GOP le­gis­lat­ors packed Afric­an-Amer­ic­an voters in­to con­gres­sion­al dis­tricts to di­lute their in­flu­ence else­where.

“The North Car­o­lina law­suit is an ar­gu­ment say­ing you paid more at­ten­tion to race than you should have,” Levitt said.

The state Su­preme Court heard ar­gu­ments on the case two weeks ago but didn’t of­fer any in­dic­a­tion on when it might is­sue a rul­ing, The News & Ob­serv­er of Raleigh, N.C., re­por­ted.

The Overall Landscape

Re­dis­trict­ing law­suits aren’t con­fined to those three states. At the state le­gis­lat­ive level, there are act­ive court chal­lenges in states like Alabama, New York, and Wyom­ing. And Demo­crats also used re­dis­trict­ing to tilt the play­ing field in the states they con­trolled, such as Illinois.

But it is in those three states where Demo­crats are pay­ing the biggest price at the con­gres­sion­al level for their dis­astrous 2010 — a price that is mak­ing it harder to win back the seats they lost. Their hope is that demo­graph­ic changes dur­ing the rest of the dec­ade out­run the maps drawn by Re­pub­lic­ans and make some of these seats com­pet­it­ive again.

The DLCC’s Sar­geant says his group is mon­it­or­ing those law­suits, but it has already moved on to the next pre-re­dis­trict­ing cycle, when the party can try to win back some of those state le­gis­lat­ive cham­bers; Demo­crats already won eight of them in 2012, he said.

And be­cause 2020 will be a pres­id­en­tial-elec­tion year, Sar­geant thinks Demo­crats will do a bet­ter job of turn­ing out their voters than they did in 2010. “We have a lot more op­tim­ism for the [2020] re­dis­trict­ing,” he said. “Clearly, we do.”

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