Preparing for the Ten Year Storm

Redistricting is almost here, and Democrats say they won't get fooled again...

Much has changed in the 10 years since Texas’ Martin Frost led redistricting operations for national Democrats—including Frost getting redistricted out of office. The McCain-Feingold campaign fi nance law has shifted the rules on soft money, U.S. Supreme Court decisions have changed the legal landscape, and Democrats have reversed the congressional majority the GOP thought it was cementing in 2000. But as the next round of redistricting approaches, the outright partisan warfare that the decennial high stakes political game inspires remains the same. And that, says Frost, isn’t likely to change.

“Republicans were ruthless in the way they used their advantages last time around,” he says, and he should know. Ten years ago, then Congressman Frost headed IMPAC 2000, the organization that coordinated the fundraising, strategic and other key aspects of the party’s redistricting plan. “Where Republicans were in total control of the process, they wrung every last seat they could out of it,”

Frost says. For examples, he points to states like Michigan, Pennsylvania, Florida and his home state of Texas. Democrats initially fought Republicans to a stalemate in 2001’s redraw in Texas, but a mid-cycle redistricting led by then House Majority Leader Tom DeLay and state Republicans ended up costing Frost his own seat and sent Democrats crying foul to the Justice Department.

The year 2000 marked the second straight decade when Republicans headed into the process better prepared and, regardless of how dirty Democrats accused the GOP of playing, ultimately got the best of their opposition. It’s something Democrats are determined to not let happen again. Heading into the 2010 Census, Democrats have rebuilt their redistricting machine to match the Republican one.

“This is really the first time that both congressional and state legislative redistricting are being done under one umbrella,” says Bill Burke, executive director of Foundation for the Future, a 527 formed back in 2004 to plan next year’s Democratic redistricting effort. “In the past, Democrats got started late, were underfunded and most of the interest here in D.C. was with the congressional level, as opposed to what was happening in state legislatures.”

One of the earliest, and most crucial, steps for both parties is readying the infrastructure to equip state and national operatives to deal with everything from the census count to the inevitable post-map-drawing legal challenges. Burke’s group came together as a direct result of the Texas redistricting led by Republicans in 2003, which most Democrats are convinced wildly flouted the Voting Rights Act. “There was a real concern that what was going on in Texas, would spread all across the country,” says Burke. “We realized that Democrats needed a long term strategy and a permanent redistricting presence.”

Click here for more on the upcoming redistricting battle in the Lone Star State

What emerged was a plan that called for two entities: one that would handle the political and data gathering tasks related to redistricting and another that would handle the legal aspects of the party’s strategy, which also fell short during the last re-draw. Working on the latter part is former Democratic Congressional Campaign Committee political director Brian Smoot. He’s heading up The Democratic Redistricting Trust, the entity put together to prepare for those eventual legal battles.

“The philosophy here is preparation, preparation, preparation,” says Smoot, the trust’s executive director.
“Developing these legal strategies is a long process, but what’s important is that we’re starting early in each targeted state. That means gathering resources, legal minds and a political understanding of what needs to be done. And this is all happening at an earlier stage.”

Smoot says the decision to create a trust was made solely with the party’s legal strategy in mind. The Redistricting Trust isn’t considered a 527 or a 501(c)(4), and therefore isn’t subject to some of the same restrictions. “This is a non-electoral entity. That’s the simplest way to describe it,” he says. “The only thing this trust will be used for is legal activities for Democratic redistricting.” Other former DCCC operatives are heavily involved with the trust including former executive director John Lapp, a longtime Democratic media consultant, and Peter Cari, a former political director and lead strategist to the Democratic redistricting effort in 2000.

Frost, who doesn’t expect to have much of a formal role in next year’s redistricting efforts, says if Democrats need to make one major change from the last go-round, it’s this: “More is better, I think that’s the lesson.” And by more, he means more resources and more focus on state legislative and gubernatorial races in 2010. “The big thing the last time was that we lost governorships in key states and we lost some legislatures in those same states. It would have been helpful if we spent more money in 2000.”

Click here for a breakdown of party control in state legislatures

The specter of 2010’s state races looms very large over the majority party. After President Obama’s election in 2008 and a second straight cycle of Democratic gains at the federal and state level, the party appeared poised to head into redistricting in shape to meet that goal, but the political environment soured considerably for Democrats in 2009. Now, they will have to fight tooth and nail in every race to control the redistricting process.

Redistricting After McCain-Feingold
Both parties have reorganized and restructured their efforts in anticipation of the upcoming re-draw. Some of that retooling is out of necessity—next year will be the first redistricting since the passage of major campaign finance reform. The parties are adjusting to the post-McCain-Feingold landscape—an adjustment many observers say will be tougher for Republicans, who are traditionally more centralized, particularly when it comes to redistricting.

“McCain-Feingold tipped the scales to the model that works for the Democrats and redistricting is no different,” says Cleta Mitchell, a longtime Republican campaign finance lawyer. “It’s an alien concept for Republicans, to raise money outside of the party to do things that the party has traditionally done. It was only [Sen. John] McCain and the morons at the Bush White House who didn’t realize the ultimate impact of the soft money ban.”

Ten years ago, Republican redistricting efforts were funded by soft money (large donations not subject to any campaign finance limits that would funnel into the parties from corporate and other interests). Under current law, national parties cannot raise soft money to spend on elections or for legal purposes related to redistricting. The parties can still raise and spend hard dollars for the effort, but given the full docket of federal contests in 2010, competition for those dollars will be hard-fought. Outside groups, which can still pour unlimited soft money into the process, will have to do the heavy lifting when it comes to fundraising and organizing.

Filling the void on the right is a 501(c)(4) called Making America’s Promise Secure, or MAPS. Former Senate Majority Leader Trent Lott and former House Speaker Newt Gingrich founded the group in late 2009, and it’s stacked with GOP operatives like Charlie Black, who heads the MAPS board of directors, and Michael Smith, the group’s executive director.

MAPS, stresses Smith, is a conservative organization, not a Republican one. Nevertheless, the group looks poised to be the GOP’s clearinghouse for redistricting efforts. MAPS will coordinate legal and electoral strategy, as well as lead the data work that goes into the effort. “What we’re focusing on right now is data gathering and that’s going to take up the bulk of our time in the short run,” says Smith. One of the most time consuming and labor intensive aspects of the redistricting battle on both sides is the work of getting political databases in shape to be merged with this year’s Census data. That data is the starting point for map-drawers.

“We’re also going to be raising money,” he says. “We know there’s going to be a lot of legal activity down the road, so we need to be ready for that.” And the legal costs can be staggering. One person familiar with the process estimates the cost of defending a map in court is somewhere between $500,000 and $1 million on the low end. That’s assuming the legal process isn’t drawn out by appeals.

It’s not entirely clear yet how MAPS will co-exist with the Republican National Committee and those prepping for redistricting within the party itself, but the group has locked up much of the top redistricting talent on the right—from the lawyers to the strategists. “This is the first time this has ever been tried like this, so I guess we’re going to find out how well it works,” says Smith.

At the RNC, Tom Hofeller is heading up the party’s redistricting operations. This will be the fifth decennial round of redistricting that Hofeller has worked. “We have a whole host of people, from legislators to members of Congress and their staffs, to the attorneys and line-drawers, who have either never been through this process before, or have pleasantly forgotten about it,” says Hofeller. So along with assisting in data gathering and organization in the early stages of the process, Hofeller says the RNC has a widespread training effort in the states to prep key players.

Of course, it’s all contingent upon raising the money necessary for the effort, something Cleta Mitchell, who is currently serving as chief counsel to MAPS, says will require some massaging of the GOP’s donor base. “Trying to create a model on the Republican side to allow for the raising and spending of non-hard money for redistricting is not a simple thing and it will take a little time,” she says.

After the Re-Draw
The last round of redistricting saw a record amount of litigation. In 10 states, the process ended up in the courts. In seven of those states, including Texas, Colorado, Mississippi and South Carolina, federal courts ended up making the final determination on district maps. “I don’t have any reason to believe there will be any less litigation this time around,” says Hofeller.

When it comes to legal strategy, there are a handful of factors that differentiate this round from the last. For the first time since the passage of the Voting Rights Act, the Department of Justice will be in Democratic hands in a redistricting year. Under section five of the voting rights act, any change in election law in Southern states, including re-drawing district lines, must be pre-cleared by DOJ’s Civil Rights Division.

“So, when pre-clearance happens it’s not going to be assessed through Republican political eyes, but through Democratic political eyes,” says Keith Gaddie, a redistricting expert at the University of Oklahoma who has served as an expert witness in several redistricting-related court cases. Last time around, Gaddie defended the controversial Texas map in court. “This means that for Republican controlled Southern states, they’re going to be encountering a fairly hostile Justice Department.”

Since the last re-draw, two Supreme Court cases have shifted the rules on two major redistricting principles: 1) population equality, otherwise known as the “one-person, one-vote principle,” which seeks to ensure equal representation for densely populated urban and sparsely populated rural districts; and 2) what constitutes a minority district in which the Civil Rights Act seeks to preserve minority voting power.

In Bartlett v. Strickland, which originated in North Carolina, the Court essentially established a “bright line” for what constitutes a minority district. The court ruled that race must be taken into account in redistricting “only when a geographically compact group of minority voters could form a majority in a single member district.” Congress had not specified a specific percentage in the VRA, nor had the Supreme Court in its past rulings.

Since the mid-1960s, the one-person, one-vote principle has called for complete population equality between districts to protect the electoral impact of inner-city voters. But on the state legislative level, courts have traditionally permitted a 10 percent deviation between districts’ population. That may not be the case for this round. In Larios v. Cox, the Supreme Court affirmed a lower court decision that tossed out Georgia’s state legislative redistricting plan based on one-person, one-vote. That was despite the population deviation between the districts being within that 10 percent range.

“Both of these cases invite more litigation,” says one lawyer advising the Democratic side in this redistricting round. “It changes the approach for the people who draw the maps, and we need to ensure we provide them the right guidance.”

The most practical result of the post-2001 litigation on next year’s re-draw is that it will give both parties greater license to challenge maps in court and potentially offer a more sturdy legal leg to stand on when it comes to the one-person, one-vote principle. It also puts more pressure on each party’s data gatherers, who are tasked with ensuring the accuracy of the database, right down to the precinct level.

“This is why the databases are so important,” explains Kimball Brace, president of Election Data Services, a consulting firm that provides redistricting assistance to state governments. “If it’s not put together properly, once you get into court, it’s easy for the other side to say it doesn’t comply with one-person, one-vote. And that can overturn a plan in court if you’re not careful.”

Ultimately, says Tom Hofeller, redistricting is a game of margins. In the vast majority of states, neither party will gain or lose congressional districts, but the opportunity is always there to strengthen your party’s presence or weaken that of your opposition. Sometimes it just takes months in a courtroom to do it.

“One man’s gerrymander can easily be another man’s nice set of districts,” he says.

Shane D’Aprile is the senior editor of Politics magazine.