The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting

Abstract

THE 2001--2002 ROUND OF CONGRESSIONALDemocrats from regaining control of Congress REDISTRICTINGwas the most incumbentin this decade even if public opinion shifts friendly in modern American history, as many heavily in their favor. pundits have noted. But the new district lines One leading commentator recently sugnot only insulated incumbents from competigested in the Harvard Law Review that, so long tion. They also froze into place a key feature of as the choice for chief executive reflects the mathe 1990s districts that has escaped the notice jority will, there may be nothing inherently of the press, political scientists, and most rewrong with a legislature that fails consistently districting attorneys and experts: a distributo reflect and transmit the changing preferences tional bias that gives Republicans a roughly of [the] majority. 1 I believe that position is 50-seat head start in the battle for control of wrong as a matter of both democratic theory Congress. In combination, these two features-and constitutional history. And I find it particextreme protection of incumbents and a powularly unconvincing today, when the chief exerful pro-Republican bias--might prevent ecutive of the United States was elected without the support of a plurality of voters and his predecessor twice failed to win an outright majority. Sam Hirsch is a partner in the Washington, D.C. office Most of this Article is devoted to showing of Jenner & Block, LLC,the Associate Editor of the Election Law Journal, and a coauthor of The Realists' Guide to Rehow and why redistricting has helped to transdistricting: Avoiding the Legal Pitfalls (A.B.A. 2000). He reforrN the U.S. House of Representatives into a cently has served as outside counsel to IMPAC 2000, the body that will no longer accurately reflect manational redistricting project for congressional Democrats, and as redistricting counsel for Democratic voters jority will. For those who believe, as did the and officeholders in more than a dozen States, including Framers, that the House should respond to the Texas (in Balderas v. Texas), Michigan (in O Lear v. M'ller), majority's changing political preferences, I conand New Jersey (in Page v. Bartels). He would like to thank chide the Article with a few concrete suggesAlan Abramowitz, Micah Altman, Andy Bechhoefer, Rob Boatright, Mark Brewer, Jeremy Buchman, Chuck Bultions for reform: lock, Bruce Cain, Susan Cohen, Bruce Combs, Nancy