CENSUS, APPORTIONMENT, REDISTRICTING

In just a few weeks, on April 1, we will all be counted by the twenty-third U. S. census. Then the fun starts.

Congress will reapportion. Texas will gain three or four seats in Congress and electoral votes in the next three presidential elections. Texas will also be eligible for billions of more dollars of federal aid. Whether Governor Perry lets us collect it is, of course, another matter! If at first you don’t secede don’t try again.

Then the legislature will redraw 232 districts: thirty-six congressional, thirty-one state senatorial, 150 state house, and fifteen State Board of Education. Counties, cities, and school boards will redraw thousands more.

Here is the most famous political cartoon in history. It added “gerrymander” to our language. The definition of “gerrymander” is simple: I redistrict. You gerrymander.

Gerrymandering, drawing a district to elect or defeat a particular candidate, is a time-honored technique, practiced by the Founding Fathers, that frequently doesn’t work. The gerrymander shown above occurred in Massachusetts in 1812. The Jeffersonian legislature tried to defeat an incumbent Federalist congressman by drawing a district a cartoonist made look like a salamander. Elbridge Gerry was governor, hence the name.

The Federalist won. The gerrymander didn’t work.

The very first gerrymander didn’t work either. Patrick Henry opposed ratification of the Constitution of which James Madison was one of the principal authors. In the Virginia Constitutional Convention called to consider ratification Madison prevailed. And a good thing, else we might still be laboring under the Articles of Confederation—or might not be a nation.

But Henry prevailed in the legislature. He prevented Madison’s election as one of Virginia’s first senators. He then tried to prevent Madison’s election to the House of Representatives by drawing an eight-county district thought to favor Madison’s opponent, James Monroe.

Madison won 1,308 to 972. Again, the gerrymander didn’t work.

Virginia was so rich in political talent that two future Presidents actually ran against each other! Virginia was so rich in political talent that two future Presidents actually ran against each other!

It’s a good thing Madison was elected, else we might not have a Bill of Rights!

Gerrymandering in Texas has had a DeLayed effect.

So onerous and contentious can redistricting be that legislatures sometimes avoided it by creating state-wide districts, seats held by congressmen-at-large. Congress prohibited at-large and multi-member Congressional districts in 1967.

Texas amended its Constitution in 1951 to establish the Legislative Redistricting Board, which redistricts the Legislature if the Legislature fails to do so after each census. The LRB did so in 1981, with no partisan rancor. No senators of either party seeking re-election were paired. I don’t remember if the partisan balance was changed or not. In those happier days a generation ago it didn’t much matter.

APPORTIONMENT CAN BE FUN, TOO!

• The first apportionment controversy was in the Constitutional Convention when the Founding Fathers excluded 40% of the slaves from the apportionment base.

• The second was when President George Washington cast the first-ever Presidential veto. He vetoed a bill favored by Secretary of State Jefferson but opposed by Treasury Secretary Hamilton. I think it gave New York too many votes.

• In 1921 reapportionment was so controversial that Congress didn’t do it at all. The 1920 census showed a large influx of immigrants and a population shift to the cities. Urban states would have gained the seats (and Congressmen) rural states lost. The urban shift would have unseated Congressmen within states as well. Congress did not reapportion because a lot of Congressmen would have lost their jobs. Congress ignored the Constitution for a decade and the House of Representatives became less representative. The country boys won again.

After the 1930 census, at the urging of President Hoover , Congress changed the reapportionment procedure to make it more ministerial and self-enacting.

Congress decides who is counted and where, who excluded, and what questions are asked.

Should the census count government personnel overseas? Prison inmates serving time out-of-state? Mormon missionaries serving God overseas? If so, where should they be included for reapportionment?

• Sometimes overseas government personnel have been counted but not included. In 1986 Tom Foley from Washington state succeeded Tip O’Neill from Massachusetts as Speaker of the House. In 1990 Congress included the overseas personnel and thereby shifted a seat and an electoral vote from Massachusetts to Washington. Washington had 8,092 more than Massachusetts. Would Massachusetts have lost the seat and the electoral vote to Washington had Tip O’Neill still been Speaker? Go figure. Tip once famously remarked that “all politics is local”.

Inmates are counted where they are imprisoned rather than where they were convicted. Governors who export prisoners to other states beware. You may be exporting a Congressman! And who knows which prisoner is the Congressman?

Missionaries are not counted. After the 2000 Census, Utah sued unsuccessfully for a fourth Congressional seat and electoral vote at the expense of North Carolina, contending that Mormon missionaries serving overseas should be counted in the same way as overseas government personnel.

As the folks from Massachusetts, Washington, Utah, and North Carolina can tell you, those last few hundred can make the difference when you get down to a state’s last seat.

Frequently at redistricting conferences a speaker will tell a story something like this:

“When I redistricted the (pick a state) House in 19×1, I drew compact districts with the lowest standard deviations on the Western World. But when I showed it to the Speaker, he pointed out that I had one too few districts.”

That always gets a nervous laugh from the audience (legislative staff members who are afraid they might do the same thing).

Something like that happened in Texas in 1922. The Legislature left out Swisher county. The Texas Supreme Court put it back in. Makes you wonder where the legislators from Swisher County were.

Wars spawn censuses. Throughout history, military commanders have needed to know how many men followed their flag. A rear-march through the centuries tells us that in the Book of Numbers Jehovah told Moses to count the Children of Israel as they wandered through the desert to see if they had enough soldiers to conquer the Canaanites. (Wouldn’t you have thought Jehovah already knew?)

The census told the heavenly Quartermaster how many to feed so that just enough manna fell from Heaven. That census showed several million Israelites. The Israelites were an army of 603,550 soldiers. Although they had been trekking through the desert for forty years, they conquered.

Censuses have been fatal:

• Moses threw the lepers identified in the census out of camp and left them to die in the Wilderness.

• We celebrate the most famous fatal census every Christmas. It happened in Bethlehem in either 0000AD or 0000BC. (Even then they took censuses in decennial years.) Joseph and the pregnant Mary had gone to Bethlehem to be counted. There was no room at the inn so they had to stay in a stable.

Records of that census survived until at least 150 AD. St. Justin Martyr wrote to the Roman Emperor in The First Apology that Bethlehem “is a village in the land of the Jews, 35 stadia [about four miles] from Jerusalem in which Jesus Christ was born, as you can learn from the census returns.” A commentator noted “the census returns were no doubt preserved in the Roman archives and were probably accessible in Justin’s day.”

Herod, mindful of a prophecy that a rival King of the Jews would be born at about that time and in that place, ordered the slaughter of male infants so born – the Holy Innocents.

But Mary and Joseph escaped with their infant Jesus by retracing Moses’ flight from Egypt. Despite Herod’s murderous efforts the prophecy came true. “Jesus of Nazareth, King of the Jews” survived. Moses and Jesus were both hidden at birth from rulers bent on infanticide. How different history would have been if the baby-killers had found their targets!

Celestial navigation was big in those days before GPS. The Israelites were guided by a pillar of fire at night. On that night in Bethlehem some undocumented aliens—three guys on camels—were wandering around looking at the stars. Sure enough, they had drugs in their saddlebags. Stuff called frankincense and myrrh.

• Another fatal census was taken in 1937 in the Soviet Union. The numbers were too low to suit Premier Josef Stalin so he shot the members of the Census Board for “diminishing the population of the Soviet Union”. Somehow, the 1939 census takers found millions more Russians. Seems they had undercounts even then.

• In the 1940s, census data helped Nazis find European Jews.

THE U.S. CENSUS

The U.S. census is an essential part of our electoral process. The writers of the Constitution were creating a nation that would have an increasing number of states with increasing populations to be represented by an increasingly large Congress.

Our census, like the Numbers count, has also been used for military purposes:

• In the Civil War, General William Tecumseh Sherman used census maps to chart his March through Georgia to the Sea. The maps showed the number of whites, free blacks, and slaves in each county. They also showed how the army could live off the land: how many horses, mules, cattle, and how much wheat, corn, oats, and other crops on each farm.

“No military expedition was ever based of sounder or surer data,” Sherman wrote to his daughter Ellen. He could move faster than his foes because he didn’t need supply lines. Census figures helped Grant at Vicksburg just as they helped Moses in the desert.

• The 1940 census helped the Army round up and imprison U.S. citizens of Japanese descent in 1942. One of those internees, Norman Y. Mineta, became Secretary of Commerce and boss of the Census Bureau 60 years later. Mineta, when he was a California Congressman, passed a bill paying each surviving internee $20,000.

• The 2000 census helped the FBI to find Arab-Americans after the 9/11 attacks.

APPORTIONMENT AND THE ELECTORAL COLLEGE

Apportionment is as much about electing Presidents as about electing Congress. The Constitutional Convention built in a small-state bias into both processes by adopting the Connecticut Compromise. The Connecticut Compromise created our bicameral Congress: a Senate for the small states, a House of Representatives for the large ones.

The Constitution apportions three electoral votes to each of the fifty states and the District of Columbia states regardless of size. (Texas has never ratified the Twenty-Third Amendment giving three electoral votes to the District of Columbia.)

The small-state bias is created by the Constitutional apportionment of and, very slightly, by the “method of equal proportions”. For example, there are three times as many electors per resident of Wyoming, Vermont, and Alaska as there are of California, Texas, and New York.

APPORTIONMENT AND RECONSTRUCTION

Now comes one of those deliciously ironic episodes that make history fun!

“Wait a minute!” thought the Northern Republicans. “We won the Civil War, but we still have a Southern President. Now we’re going to give the Rebs the Capitol AND the White House? That’s what we put the three-fifths rule in the Constitution to prevent! We’ll fix that!”

Their efforts to do so were not impressive:

• The House impeached President Andrew Johnson for the “high crime and misdemeanor” of firing his Secretary of War (Stanton). Cooler heads prevailed in the Senate—by one vote. That’s what Senates are for. As we know from recent history, Presidential impeachment is not one of the things Republican Congresses do well.

Congress abolished slavery by the Thirteenth Amendment, thereby putting the other 40% into the apportionment base.

That would have given the Rebs sixteen more seats in Congress and electoral votes—enough to give the Democrats control of Congress and elect a President!

• Then they passed the Fourteenth Amendment–a ludicrous attempt to deal with the threatened increase in Southern representation. Section 2 gave Congress the power to reduce representation of states that kept blacks from voting. Southern states did so, but so did Northern states. No such reduction was ever made. Section 2, became, in the words of the Congressional Research Service, “little more than an historical curiosity.”

• The Republicans passed the Fifteenth Amendment giving blacks and freed slaves the right to vote and have probably regretted it ever since. For the last century they have mostly voted Democratic.

In any case, the amendment wasn’t very effective until real enabling legislation (Voting Rights Act) was passed by a Democratic Congress at the urging of a Democratic President a century later.

• They considered basing apportionment on voting population rather than total population. That looked good for a while. Southern states would lose eighteen seats instead of gaining sixteen. But that would exclude women and aliens and penalize the New England states. It might even make states think about letting women vote! Back to the drawing board!

In the end the South neither gained nor lost representation for three reasons:

• Counting the freed blacks just about offset Southern casualties during the Civil War.

• The Eastern states grew more slowly than the rest of the country and so lost relative share, but Western states (California, Iowa, Michigan, Minnesota, Missouri, Oregon) grew by more than 50%.

• The 1870 census was a mess. The South was undercounted by 1.26 million. (The black undercount continues. In 1940 thirteen percent more black men registered for the draft than were counted by the census in that age group. )

ONE MAN ONE VOTE–BAKER v. CARR (1962)

The Supreme Court of the U. S. refused for years to hear redistricting cases because redistricting was a political issue, a view held strongly by Justice Felix Frankfurter.

Before Baker v. Carr redistricting fights, at least in Southern states, were not between Democrats and Republicans (there weren’t many) but between city folks and country folks (there weren’t as many as there used to be). The country folks won because their grandfathers had stacked the constitutional deck.

Baker v. Carr reshuffled the deck.

Charles W. Baker of Tennessee complained that a 1901 law designed to apportion the seats for the state’s General Assembly was virtually ignored. Baker’s suit detailed how Tennessee’s reapportionment ignored population shifts within the state.

The Texas situation was the same, except that the law and constitution were followed, not ignored. But the same result was reached. The state constitution allowed Harris County (Houston) with almost 20% of the state population to have only one (3%) of 31 senators.

Many legislatures (like Tennessee and Texas) were dominated by rural legislators. Districts bore little regard to population. Rural legislators represented a lot fewer folks than urban legislators. Legislatures had become unrepresentative.

Baker won, 6-2, Frankfurter dissenting. One-man-one-vote became the law. A wave of redistricting swept state legislatures, city councils and school boards across the country. Congressional districts soon reflected the new makeup of the legislatures.

VOTING RIGHTS ACT (1965)

A year after Congress passed the Civil Rights Act President Lyndon Johnson urged passage of the Voting Rights Act (VRA) in these words:

“Rarely are we met with a challenge…..to the values and the purposes and the meaning of our beloved Nation. The issue of equal rights for American Negroes is such as an issue…the command of the Constitution is plain. It is wrong – deadly wrong – to deny any of your fellow Americans the right to vote in this country.”

The Act outlawed literacy tests and poll taxes. All you needed to vote was citizenship and a registration card. The Fifteenth Amendment was finally to be enforced. (The poll tax was eliminated by the Twenty-Fourth Amendment in 1962. The Texas Legislature declined to ratify it in 2007.)

The impact of this act was dramatic. By the end of 1966, only four of the traditional thirteen Southern states had less than 50% of African Americans registered to vote. By 1968, even hard-line Mississippi had 59% of African Americans registered. African Americans were elected to office, often for the first time since Reconstruction. The Act was the boost that the civil rights cause needed to move it swiftly along and LBJ gets full credit for it.

LBJ famously predicted when he signed the Voting Rights Act that he was signing away the South to the Republicans for a generation. He was wrong. It has now been almost three generations.

Blacks and Hispanics became protected minorities. Renewed in 2006 by Congress, the Voting Rights Act is one the most important changes in American electoral history. Democrats, men, Indians, and Asians, minorities all, are not protected. Thank goodness men are not a protected minority, else we would have district lines bisecting bedrooms.

The most controversial part of the VRA is Section 5. Section 5 specifies those States and smaller jurisdictions that must submit redistricting plans to the Justice Department for preclearance.

Until 1990 redistricting was done in a prayer-like attitude. Legislators and staffers spent a lot time on their knees. The state capitol was their cathedral. Their prayer rug was a large state map with a plastic overlay. A felt-tip marker was the prayer stick and a hand calculator the rosary.

Nowadays it’s done on a computer. Move a precinct with a mouse click and the numbers, displayed at the bottom of the screen, change before your eyes.

Since the census determines how many electoral votes each state has and therefore how much your vote counts.

If you aren’t counted, you don’t count!

[1] Labunski, Richard. James Madison and the Struggle for the Bill of Rights. Oxford, 2006.[2] PL 90-196.  See http://www.fairvote.org/reports/monopoly/mast.html
[3] Texas Constitution, III, 28.
[4] http://www.thirty-thousand.org/pages/first_veto.htm
[5] State of the Union address, Dec. 2, 1930.
[6] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=536&invol=452
[7] Smith v. Patterson, 111 Tex. 525, 242 S.W. 749 (1922).
[8] Numbers 1,2.
[9] Luke 2:1-7
[10] St. Justin Martyr The First and Second Apologies, Paulist Press 1997. L. W. Barnard, editor. Cited in Houston  Mayor          William H. White letter to the author, September 5, 2000.
[11] Matthew 2:16-18
[12] Conquest, Robert. Reflections on a Ravaged Century. (John Murray,1999)
[13] American Census: A Social History. Margo Anderson. New Haven: Yale University Press, 1988. p. 64. See esp. 8n, 9n. Hereafter “Census”.
[14] William Seltzer and Margo Anderson, “After Pearl Harbor:  The Proper Role of Population Data Systems in Time of War,”  Annual Meeting of the Population Association of America, Los Angeles, CA, March 25, 2000.
[15] New York Times, June 30, 2000.
[16] New York Times ,July 30, 2004. http://www.nytimes.com/2004/07/30/politics/30census.html7] For an excellent discussion of the Electoral College  see Langley, Lawrence D., and      Pierce, Neal R. The Electoral College Primer. Yale University Press.

[1[18] http://cwx.prenhall.com/bookbind/pubbooks/dye4/medialib/docs/conncomp.htm9] U.S. Constitution, 23d Amendment.

[1[20] See http://www.rules.house.gov/archives/RL31074.pdf] Author’s calculation from
[21 http://www.uwm.edu/~margo/apport/objective.htm
[22] Census, Chapter 3.
[23] http://caselaw.lp.findlaw.com/data/constitution/amendment13/Journal of Interdisciplinary History 30.1 (1999) 1-36
[24] Anderson, To Sample or Not to Sample Journal of Interdisciplinary History 30.1 (1999) 1-36
[25] 369 US186(1962)