The New Yorker

With his West Texas twang, loping swagger, = and=20 ever-present cowboy boots, Charlie Stenholm doesn=92t much look = like or=20 sound like anybody=92s idea of a victim. Since 1979, he has been = the=20 congressman for a sprawling district west of Dallas, and his votes = have=20 reflected the conservative values of the cattle, cotton, and oil = country=20 back home. He opposes abortion, fights for balanced budgets, and = voted for=20 the impeachment of President Clinton. His Web site features = photographs of=20 him carrying or firing guns. Through it all, though, Stenholm has = remained=20 a member of the Democratic Party, and for that offense he appears = likely=20 to lose his job after the next election.

Stenholm was a principal target in one of the more bizarre = political=20 dramas of recent years=97the Texas redistricting struggle of 2003. = Following=20 the 2000 census, all states were obligated to redraw the = boundaries of=20 their congressional districts in line with the new population = figures. In=20 2001, that process produced a standoff in Texas, with the = Republican state=20 senate and the Democratic state house of representatives unable to = reach=20 an agreement. As a result, a panel of federal judges formulated a=20 compromise plan, which more or less replicated the current = partisan=20 balance in the state=92s congressional delegation: seventeen = Democrats and=20 thirteen Republicans. Then, in the 2002 elections, Republicans = took=20 control of the state house, and Tom DeLay, the Houston-area = congressman=20 who serves as House Majority Leader in Washington, decided to = reopen the=20 redistricting question. DeLay said that the current makeup of the=20 congressional delegation did not reflect the state=92s true = political=20 orientation, so he set out to insure that it did.

=93This was a fundamental change in the rules of the game,=94 = Heather=20 Gerken, a professor at Harvard Law School, said. =93The rules = were, Fight it=20 out once a decade but then let it lie for ten years. The norm was = very=20 useful, because they couldn=92t afford to fight this much about=20 redistricting. Given the opportunity, that is all they will do, = because=20 it=92s their survival at stake. DeLay=92s tactic was so shocking = because it=20 got rid of this old, informal agreement.=94 But Texas law = contained no=20 explicit prohibition on mid-decade redistricting, so the = leadership of the=20 state government, now unified in Republican hands, tried during = the summer=20 of 2003 to push through a new plan. Democrats attempted novel = forms of=20 resistance. In May, fifty-one House members fled to Oklahoma, to = deprive=20 the new leadership of a quorum; in July, a dozen senators decamped = to New=20 Mexico, for the same purpose. But defections and the passage of = time=20 weakened Democratic resolve, and, on October 13th, the plan = sponsored by=20 DeLay was passed.

=93They did everything they could to bust up my political = base,=94 Stenholm=20 told me. =93They drew my farm and where I grew up into the = Amarillo=20 district, and they drew Abilene, where I live now, into the = Lubbock=20 district.=94 As a result, Stenholm will be forced to run in one of = these=20 districts if he wants to remain in the House. The new map creates = similar=20 problems for half a dozen other incumbent Texas Democrats, so the=20 reapportionment may add as many as seven new Republicans to the = G.O.P.=20 majority in the House of Representatives and shift the state=92s = delegation=20 to 22-10 in favor of the Republicans. =93Politics is a contact = sport,=94=20 Stenholm said. =93I=92ve been in this business twenty-five years. = I will play=20 the hand I was dealt.=94

In Texas and elsewhere, redistricting has transformed American=20 politics. The framers of the Constitution created the House of=20 Representatives to be the branch of government most responsive to = changes=20 in the public mood, but gerrymandered districts mean that most of = the four=20 hundred and thirty-five members of Congress never face seriously = contested=20 general elections. In 2002, eighty-one incumbents ran unopposed by = a major=20 party candidate. =93There are now about four hundred safe seats in = Congress,=94 Richard Pildes, a professor of law at New York = University,=20 said. =93The level of competitiveness has plummeted to the point = where it is=20 hard to describe the House as involving competitive elections at = all these=20 days.=94 The House isn=92t just ossified; it=92s polarized, too. = Members of the=20 House now effectively answer only to primary voters, who represent = the=20 extreme partisan edge of both parties. As a result, collaboration = and=20 compromise between the parties have almost disappeared. The = Republican=20 advantage in the House is modest=97just two hundred and = twenty-nine seats to=20 two hundred and six=97but gerrymandering has made the lead close = to=20 insurmountable for the foreseeable future.

There is, it appears, just one chance to change the cycle. On = December=20 10th, the United States Supreme Court will hear arguments in a = case that=20 could alter the nature of redistricting=97and, with it, modern = American=20 electoral politics. The court has long held that legislators may = not=20 discriminate on the basis of race in redistricting, but the = question now=20 before the court is whether, or to what extent, they may consider = politics=20 in defining congressional boundaries. =93There is a sense of = embarrassment=20 about what has happened in American politics,=94 Samuel = Issacharoff, a=20 professor at Columbia Law School, said. =93The rules of decorum = have fallen=20 apart. Voters no longer choose members of the House; the people = who draw=20 the lines do. The court seems to think that something has to be = done.=94 The=20 case could well become the court=92s most important foray into the = political=20 process since Bush v. Gore. As Ronald Klain, a Democratic lawyer = in=20 election-law cases, puts it, =93At stake in this case is control = of=20 Congress=97nothing more, nothing less.=94

The off-cycle timing of the Texas = redistricting fight,=20 as well as the farcical drama of the fleeing Democratic = legislators, made=20 the saga look like a colorful aberration. But the results of that=20 altercation merely replicated what happened, after the 2000 = census, in=20 several other states where Republicans controlled the governorship = and the=20 legislature. Even in states where voters were evenly divided, the=20 Republicans used their advantage in the state capitals to = transform their=20 congressional delegations. In Florida, the paradigmatically = deadlocked=20 state, the new district lines sent eighteen Republicans and seven=20 Democrats to the House. In the Gore state of Michigan, which lost = a seat=20 in redistricting, the delegation went from 9-7 in favor of the = Democrats=20 to 9-6 in favor of the Republicans=97even though Democratic = congressional=20 candidates received thirty-five thousand more votes than their = Republican=20 opponents in 2002. (The Michigan plan was approved on September = 11, 2001,=20 so it received little publicity.) Pennsylvania, which also went to = Gore,=20 had one of the most ruthless Republican gerrymanders, and it is = the one=20 being challenged before the Supreme Court.

After 2000, Pennsylvania lost two seats in Congress, and its=20 legislature had to establish new district lines. Republican = legislative=20 leaders there engaged in no subterfuge; they candidly admitted = that they=20 intended to draw the lines to favor their party as much as = possible. In=20 the midst of the battle over the Pennsylvania plan, DeLay and = Dennis=20 Hastert, the Speaker of the House, sent a letter to the = Pennsylvania=20 legislators, saying, =93We wish to encourage you in these efforts, = as they=20 play a crucial role in maintaining a Republican majority in the = United=20 States House of Representatives.=94 The Republicans in Harrisburg = used=20 venerable techniques in redistricting, like = =93packing,=94 =93cracking,=94=20 and =93kidnapping.=94 Packing concentrates one group=92s voters in = the fewest=20 possible districts, so they cannot influence the outcome of races = in=20 others; cracking divides a group=92s voters into other districts, = where they=20 will be ineffective minorities; and kidnapping places two = incumbents from=20 the same party in the same district.

Frank Mascara was kidnapped. A Democrat first elected to = Congress in=20 1994, Mascara represented a district in the rugged industrial = country=20 south of Pittsburgh. =93My district had been more or less the same = for about=20 a hundred years,=94 Mascara told me on the porch of his house in = Charleroi,=20 which overlooks a glass-making plant on the banks of the = Monongahela=20 River. The son of a steelworker and the first member of his family = to go=20 to college, Mascara worked his way through county politics until = he won=20 his seat in the House. =93A lot of people couldn=92t believe that = a=20 congressman lived in a house like mine,=94 he said, noting its = aluminum=20 siding and probable resale value of about thirty-five thousand = dollars.=20 =93But that=92s the kind of guy I am,=94 he said. =93I go to = church down the=20 street. I represent the average person.=94

With the Republicans in charge in Harrisburg, Mascara knew he = would be=20 little more than a spectator to the redistricting process. =93I = still=20 thought my district would for the most part remain intact,=94 he = said. =93That=20 didn=92t occur.=94 Mascara had met me at a McDonald=92s in = Charleroi=92s ragged=20 downtown, and then led me to his home on a quiet street called = Lincoln=20 Avenue, where we parked because he has no garage. From his porch, = he=20 pointed to our cars. =93The cars are in the twelfth congressional = district,=20 and my house is in the eighteenth,=94 he explained. =93When they = drew the new=20 lines, they started in Allegheny County, which is north of here, = and made,=20 like, a finger out of that district, and the finger went down the = middle=20 of the street where I live. The line came down to my house and = stopped.=94=20 The Republicans=92 meticulous line-drawing through Charleroi was = designed to=20 force Mascara into a primary battle with his fellow-Democrat John = Murtha,=20 which it did. Murtha defeated Mascara, ending his congressional = career and=20 reducing the Democratic presence in the House by one.

The Republicans carved up Pennsylvania into many strangely = shaped=20 districts, which won monikers like the =93supine seahorse=94 and = the=20 =93upside-down Chinese dragon.=94 Such nicknames for gerrymandered = districts=20 go back to the origin of the term, which was coined as an epithet = to mock=20 Massachusetts Governor Elbridge Gerry, who in 1811 approved an = election=20 district that was said to resemble a salamander. Like most = gerrymanders=20 throughout history, the Republicans=92 creation in Pennsylvania = produced the=20 desired results. Even though a Democrat, Ed Rendell, won the = governorship=20 in 2002, Republicans in that election took control of twelve of = the=20 nineteen House seats.

Democrats accomplished less in the 2000 redistricting cycle = only=20 because they controlled fewer states and thus could do less to = protect=20 their interests. DeLay=92s mid-cycle reapportionment may be = without=20 precedent, but Democrats have their own inglorious history of=20 gerrymandering. Before the Texas coup this year, the most = notorious=20 redistricting operation in recent years was the one run by = Representative=20 Philip Burton, following the 1980 census in California, which = transformed=20 the Democrats=92 advantage in House seats there from 22-21 to = 27-18. In=20 2002, a Democratic plan in Maryland turned that delegation from = being=20 evenly divided to a 6-2 Democratic advantage, and Georgia = Democrats gained=20 two seats in the House even though in the same election voters = rejected a=20 Democratic governor and a Democratic United States senator. In = California,=20 where Democrats also controlled the process, they settled for = protecting=20 incumbents of both parties. There, in 2002, not one of fifty=20 general-election House challengers won even forty per cent of the = total=20 vote.

There is no doubt, though, that on balance the 2000 = redistricting cycle=20 amounted to a major victory for Republicans. Even though Al Gore = and=20 George W. Bush split the combined vote in Florida, Pennsylvania, = Ohio, and=20 Michigan, Republican control of the process meant that, after=20 redistricting, the G.O.P. now holds fifty-one of those states=92=20 seventy-seven House seats. =93The important thing to realize was = in 1991 the=20 Republicans had control of line-drawing in a total of five = congressional=20 districts,=94 one G.O.P. redistricting expert told me. =93In 2001, = it was=20 almost a hundred seats. Both parties made the most of = it.=94

The transformation of congressional = redistricting began=20 long before the 2000 census, and the crucial issue was race. In = the early=20 nineteen-sixties, the Supreme Court, under Chief Justice Earl = Warren,=20 transformed American politics by enforcing the principle of one = man, one=20 vote, and requiring that all legislative districts contain the = same number=20 of people. Before these decisions, which started with the famous = case of=20 Baker v. Carr, in 1962, Southern (and some Northern) states had = designed=20 districts so that black voters had no meaningful say in Congress. = Later in=20 the decade, the Voting Rights Act established the principle that = not only=20 did blacks have the right to vote but they had to be placed in = districts=20 where black candidates stood a good chance of winning. The act, = which was=20 one of Lyndon B. Johnson=92s most important civil-rights = initiatives, led to=20 the election of many more black members of Congress=97and was a = classic=20 demonstration of the law of unintended consequences.

=93When the civil-rights movement started, you had a lot of = white=20 Democrats in power in the South,=94 Bobby Scott, a congressman = from Virginia=20 who was first elected in 1992, said. =93And, when these white = Democrats=20 started redistricting, they wanted to keep African-American = percentages at=20 around thirty-five or forty per cent. That was enough for the = white=20 Democrats to keep winning in these districts, but not enough to = elect any=20 black Democrats. The white Democrats called these =91influence=92 = districts,=20 where we could have a say in who won.=94 But Republicans sensed an = opportunity. =93They came to us and said, We want these districts = to be=20 sixty per cent black,=94 Scott, who is African-American, said. = =93And blacks=20 liked that idea, because it meant we elected some of our own for = the first=20 time. That=92s where the =91unholy alliance=92 came in.=94

The unholy alliance=97between black Democrats and white=20 Republicans=97shaped redistricting during the eighties and = nineties.=20 Republicans recognized the value of concentrating black voters, = who are=20 reliable Democrats, in single districts, which are known in = voting-rights=20 parlance as =93majority-minority.=94 As Gerald Hebert, a = Democratic=20 redistricting operative and former Justice Department lawyer, puts = it,=20 =93What you had was the Republicans who were in charge for every=20 redistricting cycle at the Justice Department=97=9281, =9291, = =9201. And there was=20 a kind of thinking in the eighties and in the early nineties that = if you=20 could create a majority-minority district anywhere in the state,=20 regardless of how it looked and what its impact was on surrounding = districts, then you simply had to do it. What ended up happening = was that=20 they went out of their way to divide and conquer the Democrats.=94 = The real=20 story of the Republican congressional landslide of 1994, many=20 redistricting experts believe, is the disappearance of white = Democratic=20 congressmen, whose black constituents were largely absorbed into=20 majority-minority districts.

It was a version of the unholy alliance which may doom Charlie = Stenholm=20 and his fellow Texas Democrats. All the congressmen who are likely = to lose=20 their jobs in the new DeLay plan are white. Many of their black=20 constituents have been transferred to safe Democratic seats, where = they=20 can=92t harm Republicans. The unholy alliance has had the = additional side=20 effect, especially in the South, of making the Democrats the party = of=20 blacks and the Republicans the party of whites=97which presents = daunting=20 long-term political problems for the Democratic Party. Many = Democrats=20 can=92t help but express a perverse admiration for the cleverness = of the=20 strategy. Benjamin Ginsberg, a Republican redistricting operative = who=20 helped to construct the unholy alliance during the 1990 cycle, = referred to=20 the initiative as =93Project Ratfuck.=94

Since the 2000 cycle, these Republican gains have locked in and = even=20 expanded. To see how this was done, I asked Nathaniel Persily, a = genial=20 assistant professor of law and political science at the University = of=20 Pennsylvania, to visit my office and bring his laptop. Persily, = who is=20 thirty-three, has built a reputation as a nonpartisan expert and=20 occasional practitioner in the field of redistricting.

Before 1990, most state legislators did their redistricting by = taking=20 off their shoes and tiptoeing with Magic Markers around large maps = on the=20 floor, marking the boundaries on overlaid acetate sheets. Use of = computers=20 in redistricting began in the nineties, and, as Persily = demonstrated, it=20 has now become a science. When Persily opened his computer, he = showed me a=20 map of Houston, detailed to the last census block. (The population = of each=20 block usually ranges from fewer than a dozen to about a thousand.) = =93This=20 is the same map that DeLay=92s people used to redistrict,=94 = Persily said.=20 Indeed, DeLay=92s political operation purchased ten copies of the = software,=20 which is called Caliper=92s Maptitude for Redistricting and costs = about four=20 thousand dollars per copy. The software permits mapmakers to = analyze an=20 enormous amount of data=97party registration, voting patterns, = ethnic makeup=20 from census data, property-tax records, roads, railways, old = district=20 lines. =93There=92s only one limit to the kind of information you = can use in=20 redistricting=97its availability,=94 Persily said. (In = Pennsylvania,=20 Republicans used Carnegie-Mellon University=92s mainframe = computer, which=20 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=20 registration in each census block to one that revealed voting = results in=20 each block. The colors ranged from dark red, for heavily = Democratic votes,=20 to dark blue, for strongly Republican. He showed voting results in = about=20 two dozen races, from President to governor and from congressman = to local=20 offices. =93The whole process has got much more sophisticated,=94 = Persily went=20 on. =93Party-registration data are not the only kind of data you = want to=20 use. You want to use real election results. That=92s a big change = from ten=20 years ago. We have become very good at predicting how people are = going to=20 vote. People=92s partisanship is at a thirty-year high. If I know = you voted=20 for Gore, I am better able to predict that you are going to vote = for any=20 given Democrat in a future election.=94

I asked Persily to give me a demonstration of how to draw = district=20 lines. He moved his mouse to the border between two congressional=20 districts. A ledger on the top half of the screen showed that one = of the=20 districts, as currently configured, had about forty thousand more = people=20 than the other one. =93The Supreme Court has said that the = requirement of=20 one man, one vote means that each district must have = exactly=97exactly=97the=20 same number of people,=94 Persily explained. An early version of = the=20 Pennsylvania plan was rejected by the courts because the districts = were=20 just nineteen voters apart, in districts of about a half million = people.=20 Requirements for that sort of precision virtually mandate the use = of=20 computers for redistricting.

Persily zeroed in even more closely, and a little donkey popped = up=20 inside one of the census blocks. =93That=92s where the local = congressman=20 lives, a Democrat,=94 he explained. =93We have little elephants = for the=20 Republican incumbents.=94 The program seemed easy to use, = justifying the=20 boast, on the software company=92s Web site, that you could = =93start building=20 plans thirty minutes after opening the box.=94 Persily chuckled. = =93At a=20 certain point, you admire the video-game appeal of all this.

=93There used to be a theory that gerrymandering was = self-regulating,=94=20 Persily explained. =93The idea was that the more greedy you are in = maximizing the number of districts your party can control, the = more likely=20 it is that a small shift of votes will lead you to lose a lot of=20 districts. But it=92s not self-regulating anymore. The software is = too good,=20 and the partisanship is too strong.=94

The effects of partisan gerrymandering go = well beyond=20 the protection of incumbents and the guarantee of continued = Republican=20 control. It has also changed the kind of people who win seats in = Congress=20 and the way they behave once they arrive. Jim Leach, a moderate = Republican=20 and fourteen-term congressman from Iowa, has watched the = transformation.=20 Leach agrees with Richard Pildes on the numbers: =93A little less = than four=20 hundred seats are totally safe, which means that there is = competition=20 between Democrats and Republicans only in about ten or fifteen per = cent of=20 the seats.

=93So the important question is who controls the safe seats,=94 = Leach said.=20 =93Currently, about a third of the over-all population is = Democrat, a third=20 is Republican, and a third is no party. If you ask yourself some=20 mathematical questions, what is half of a third?=97one-sixth. = That=92s who=20 decides the nominee in each district. But only a fourth = participates in=20 primaries. What is a fourth of a sixth? A twenty-fourth. So it=92s = one=20 twenty-fourth of the population that controls the seat in each = party.

=93Then you have to ask who are those people who vote in = primaries,=94=20 Leach went on. =93They are the real partisans, the activists, on = both sides.=20 A district that is solidly Republican is a district that is more = likely to=20 go to the more conservative side of the Republican part of the = Party for=20 candidates and platforms. Presidential candidates go to the left = or the=20 right in the primaries and then try to get back in the center. In = House=20 politics, if your district is solidly one party, your only = challenge is=20 from within that party, so you have every incentive for staying to = the=20 more extreme side of your party. If you are Republican in an=20 all-Republican district, there is no reason to move to the center. = You=20 want to protect your base. You hear that in Congress all the time, = in both=20 parties=97=91We=92ve got to appeal to our base.=92 It=92s much = more likely that an=20 incumbent will lose a primary than he will a general election. So=20 redistricting has made Congress a more partisan, more polarized = place. The=20 American political system today is structurally geared against the = center,=20 which means that the great majority of Americans feel left out of = the=20 decision-making process.=94

Scholarly research gives some support to Leach=92s impressions. = =93Partisan=20 gerrymandering skews not only the positions congressmen take but = also who=20 the candidates are in the first place,=94 Issacharoff, of = Columbia, said.=20 =93You get more ideological candidates, the people who can arouse = the base=20 of the party, because they don=92t have to worry about = electability. It=92s=20 becoming harder to get things done, whether in Congress or in = state=20 legislatures, because partisan redistricting goes on at the state = level,=20 too.=94 Among members of the House, partisan redistricting has = also bred an=20 almost comic sense of entitlement to landslides. In a hearing on = the=20 post-2000 reapportionment in New York, Representative Benjamin = Gilman, an=20 upstate Republican, said that during the 1982 redistricting he was = promised by the majority leader of the state senate that =93if I = accepted=20 that challenge of a fair-fight district, I would never again be = asked or=20 forced by the state to face that prospect of a fair fight once = again. . .=20 . I think it would be unfair not only to myself and my district to = face=20 that divisive prospect once again.=94

With partisan gerrymandering, House members in effect pay a = penalty if=20 they reach out too much to members of the other party. =93What is = laughable=20 is the basic premise of what is going on,=94 Charlie Stenholm, the = endangered Texan, said. =93The great sin I committed is that I won = the last=20 election 51-47 in a district that went 71-28 for President Bush. = But I am=20 a conservative Democrat, and that=92s why these people vote for = me. There=20 shouldn=92t be a penalty for reaching out across party lines.=94 = If Stenholm=20 and his ilk disappear, they will be replaced by reliable = Republicans=97who=20 won=92t have to worry about their own chances for = re=EBlection.

The question before the Supreme Court later = this month=20 is not whether partisan gerrymandering is wise but whether it is=20 constitutional. The issues are strikingly similar to those faced = by the=20 Warren Court in the early sixties=97and the stakes may be as large = as well.=20 The framers of the Constitution designed the House of = Representatives to=20 reflect the popular will. James Madison, in the Federalist Papers, = said=20 the House was meant to be a =93numerous and changeable body,=94 = where the=20 members would have =93an habitual recollection of their dependence = on the=20 people.=94 While the House was supposed to be impetuous, the = Senate was=20 intended to be stable. Madison said that senators would serve = six-year=20 terms as a defense against =93the impulse of sudden and violent = passions=94 of=20 the House, and the members of the Senate were to be elected by = state=20 legislators, providing a further level of insulation from the = popular=20 will. (The Constitution was amended to require direct election of = senators=20 in 1913.) The Senate had to remain stable, Madison wrote, because = =93every=20 new election in the states is found to change one half of the=20 representatives.=94

Today, the House and the Senate have precisely flipped roles. = Senate=20 races, which are not subject to redistricting, are decided by = actual=20 voters, who do indeed change their minds with some regularity. = Control of=20 the Senate has shifted five times since the nineteen-eighties. The = House,=20 by contrast, has changed hands just once in the same period, in = the=20 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=20 governors=92 and Senate races were that close. In 2002, only four = House=20 challengers defeated incumbents in the general election=97a record = low in=20 the modern era. In a real sense, the voters no longer select the = members=20 of the House of Representatives; the state legislators who design = the=20 districts do.

The question, then, is what, if anything, is unlawful about = that? The=20 legal debate on that question is especially stark. In the case now = before=20 the Supreme Court, Pennsylvania Democrats argued that the = Republican=20 gerrymander denied them equal protection of the laws, asserting in = their=20 brief that it is =93unconstitutional to give a State=92s million = Republicans=20 control over ten seats while leaving a million Democrats with = control over=20 five.=94 The Republican response is to say, in effect, =93Welcome = to the big=20 leagues. State legislatures have always played this kind of = hardball, the=20 courts ought to stay out of the game altogether, and there=92s no = such thing=20 as a nonpartisan solution.=94 Justice Sandra Day O=92Connor, a = former Arizona=20 state senator herself, may have put the argument best when, in the = mid-eighties, the Supreme Court last considered a = political-gerrymandering=20 case. According to Justice William Brennan=92s notes of the = court=92s internal=20 debate, O=92Connor said that any legislative leader who failed to = protect=20 his party=92s interest in redistricting =93ought to be = impeached.=94

In that case, a challenge to the congressional-reapportionment = plan in=20 Indiana following the 1980 census, a plurality of the justices = said for=20 the first time that a partisan gerrymander might, in theory, = violate the=20 equal-protection clause. But in the 1986 decision the court ruled = that the=20 Indiana plan did not violate the Constitution. Indeed, the court = said that=20 the Constitution was not violated unless one political party was=20 =93essentially shut out of the political process.=94 According to = Heather=20 Gerken, of Harvard, =93The court set the bar so high for = constitutional=20 violations that no one has ever successfully fought a partisan = gerrymander=20 anywhere since 1986. Political parties are never totally =91shut = out=92 of the=20 process=97they raise funds, put up candidates, make speeches. So = these=20 challenges have always lost. By taking the Pennsylvania case, the = court=20 seems to be saying that it=92s time to get back in the = process.=94

The best argument for Republicans in the Pennsylvania case, it = seems,=20 is that it=92s simply not the court=92s business to scrutinize = legislative=20 maps for partisan gerrymandering. =93Redistricting deals with = inherently=20 political questions,=94 J. Bart DeLone, the senior deputy state = attorney=20 general who will argue for the case for Pennsylvania, said, =93and = those=20 questions should be left to the political branches of government, = where=20 they belong, not to the courts. Then you are trying to measure = things that=20 have no standards unless you are making political judgments.=94 = Still, this=20 is a Supreme Court that has not hesitated to tell politicians what = to do.=20 =93It=92s an extremely confident court,=94 Gerken said. =93They = second-guess=20 Congress, states, state judges all the time. They are deeply = engaged in=20 the democratic process. I can=92t imagine that this is anything = but an=20 effort to pull in the reins of partisan gerrymandering.=94

But how? The Democrats propose a rule based, in part, on the = Court=92s=20 race jurisprudence. In a series of cases in the nineties which = challenged=20 some of the majority-minority districts, the Court held that it = violated=20 the Constitution for states to gerrymander congressional districts = exclusively for racial reasons. =93The rule now is, You can=92t = draw ugly=20 districts if it=92s purely for race,=94 Sam Hirsch, one of the = lawyers for the=20 Pennsylvania Democrats, said. =93The rule should be, You can=92t = draw ugly=20 districts if it=92s purely for politics, either.=94 But Hirsch=92s = adversary,=20 DeLone, pointed out, =93There is a fundamental difference between = race and=20 politics. Racial classifications are inherently suspect. If you = are doing=20 something specifically because of race, we are always going to = take a hard=20 look at it. Not only are political judgments O.K. but we expect = them.=94=20 Since it=92s been so long since the Supreme Court addressed the = issue, most=20 election-law experts see the Pennsylvania case as difficult to = handicap,=20 and the key factor may simply be how bad the justices believe the = problem=20 of partisan gerrymandering to be.

In any case, the situation appears to be getting worse, even as = the=20 Pennsylvania case has been pending. While Texas was shifting its=20 districts, the governing Republicans in Colorado did their own = mid-cycle=20 reapportionment, to solidify their hold on the one House seat in = the state=20 that produced a close election in 2002. (Legal challenges to the = new Texas=20 and Colorado districts are now pending.) At one point, the = Democrats who=20 control Oklahoma and New Mexico threatened retaliation, but the = Party=20 lacks a DeLay-like figure to press the issue. One state that has = gone its=20 own way is Iowa, which turned redistricting over to a nonpartisan=20 civil-service commission after the 2000 census. Consequently, four = of=20 Iowa=92s five House races in 2002 were competitive, so a state = with one per=20 cent of the seats in the House produced ten per cent of the = nation=92s close=20 elections. The rest of the country will follow only, it seems, if = the=20 Supreme Court requires it.

When it comes to drawing political boundaries, there never was = a golden=20 age of statesmanship. =93When we Democrats controlled the = legislature, sure=20 we protected Democrats,=94 Charlie Stenholm said. =93But we = didn=92t do harm to=20 the Republicans who were in office. This thing today is a whole = different=20 order of magnitude.=94 On his porch in Charleroi, Frank Mascara = said the=20 issue is a lot bigger than he is. =93I=92m through, I=92m done, = out of=20 politics,=94 he said. =93It won=92t affect me one way or the = other. But the=20 system is now totally out of whack, and that matters to a lot of = people.=20 It=92s not about me, it=92s about power on a national = scale.=94 3D""=20