Legislative Redistricting Under Conditions of Divided Government

One of the unexpected things I learned about the evil that was alcohol Prohibition from Daniel Okrent's excellent 2010 book, Last Call: The Rise and Fall of Prohibition, was that the pro-Prohibition lobby successfully prevented Congress from doing its constitutional duty of reapportionment after the 1920 census.

The Constitution requires, in Article I, Section 2, and in Amendment XIV, Section 2, that an enumeration (census) shall take place every ten years and that Congress shall apportion the number of Representatives following each enumeration.

As Okrent notes, however,

The dry refusal to allow Congress to recalculate state-by-state representation in the House during the 1920s is one of those political maneuvers in American history so audacious it's hard to believe it happened. In its disregard for constitutional principle and its blatant political intent, it would almost rank with Franklin Roosevelt's Supreme Court-packing plan of 1937 -- that is, if anyone remembered that it even happened. The episode is all the more remarkable for never having established itself in the national consciousness....

Never in American history, not even during the tumult of Civil War, had Congress disregarded the constitutional mandate, enunciated in Article I, Section 2, to reapportion itself following completion of the decennial census. In each of the three most recent opportunities -- 1890, 1900, and 1910 -- the process consumed less than nine months. As late as January 1921, [Wayne B.] Wheeler [the chief pro-Prohibition lobbyist and organizer] himself believed that reapportionment was imminent and warned the [Anti-Saloon League] faithful to "be on guard." But a threatened majority, like a threatened animal, will do what it can to preserve itself. Between 1921 and 1928, forty-two separate reapportionment bills were introduced in the House. Not one became law.

As it turned out, Congress never reapportioned the House based on the 1920 census. The next reapportionment took effect in time for the 1932 elections, after the 1930 census. Prohibition, it becomes clear, worked to undermine the Constitution in fundamental ways.

We do not live in such interesting times today. The number of representatives is set at 435, the same number as in 1920, and while a few states will lose representatives beginning after the 2012 elections and others will gain them, there is no movement afoot to prevent that from happening.

The 2010 census was just the first stage in a process that will lead to the redesign of legislative districts all across the United States over the next two years. Districts for the U.S. House of Representatives, state legislatures, city councils, county boards of supervisors, and school boards will all be affected.

In Virginia, the redistricting process is accelerated because it is one of only four states that hold their state legislative elections in odd-numbered years.

Consequently, Virginia does not have a full-year's cushion in which to consider and pass a redistricting plan before it has to be in place for the next general election. In addition, because it falls under the jurisdiction of the Voting Rights Act, every aspect of the plan must be approved by the U.S. Department of Justice before it can be implemented.


George Mason University political scientist Michael P. McDonald is an expert on reapportionment and redistricting.  He is co-editor of The Marketplace of Democracy: Electoral Competition And American Politics, published in 2006 by the Brookings Institution.

McDonald has served as a consultant on redistricting issues, sometimes “helping jurisdictions produce redistricting plans that are in conformance with federal and state criteria,” sometimes serving as an expert witness in lawsuits on behalf of either the plaintiff or the defendant, “defending or challenging whether or not a redistricting plan is legal.”

After McDonald spoke to local election officials from across the Commonwealth at the State Board of Elections’ annual Election Uniformity Workshop (translation: training conference) last August, I interviewed him about what Virginia voters can look forward to in the coming months.

For the first time in Virginia history, redistricting in 2011 will take place under conditions of divided government. For the first time, the process will be supervised by a General Assembly in which the House of Delegates is controlled by Republicans and the state Senate is controlled by Democrats.

After the 1990 census, both houses were controlled by Democrats, as was the case in every decade since Reconstruction, and after the 2000 census, both houses had Republican majorities.

Moreover, in 1991, when the post-1990 redistricting took place, Virginia had a Democratic governor, L. Douglas Wilder. In 2001, Virginia had a Republican governor, Jim Gilmore. In both instances, the legislative and executive branches were unified under one political party's control.

Michael P. McDonald

“How it’s played out in other states,” Professor McDonald explained in our interview, “is that one chamber will draw its districts, the other chamber will draw its districts, and then the two will do a logroll,” in which each chamber approves the other’s proposal. In effect, McDonald said, “you will have two different partisan gerrymanders, one for each chamber.”

Virginia differs slightly from other states, however.

“The wrinkle that we have in Virginia,” McDonald pointed out, “is that the governor can amend legislation.” As a result, “there’s a little bit of concern on the Democratic side” that “even if the House passes their version of the Senate plan” the governor might not “keep his hands off of it.”

There is some discussion, McDonald said, that “the governor may form a commission or a committee of some sort to help assist him in evaluating the redistricting plans that come out of the legislature.” Such a commission, he explained, “may play a mediating role there.”

Given how fast the state legislative elections are approaching (in November 2011, when 100 seats in the House of Delegates and 40 seats in the state Senate are up for election), there is some concern about whether the General Assembly can pass a redistricting plan in time to meet the needs of the electoral calendar -- which includes setting a date for primary elections, normally held in June, in districts that have not yet been designed.

McDonald is optimistic, however.

“Plenty of other states have done it,” McDonald said. “We’ve done it in the past in Virginia.”

Can the process be completed in time?

“Presumptively, yes, the answer should be yes, that we can do it in time,” McDonald noted, also pointing out that “if it is not done in time,” federal courts will intervene.

“That’s one thing that the voters of Virginia can know to be true,” he said, “that the federal courts will step in if the state government can’t produce a redistricting plan.”

The courts, he added, “will basically draw their own map or they will accept a map that was not considered during the legislative process.”

Whether the redistricting process will fall victim to partisan bickering, or whether conditions of divided government actually make the process fairer and more transparent, both remain to be seen.

(A shorter, slightly different version of this article appeared on Examiner.com on September 4, 2010, under the headline, "After the census: GMU political scientist Michael McDonald forecasts Virginia's 2011 redistricting.")

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