The stakes are incredibly high, reapportionment is looming, and recent data from Election Data Services shows that neither Democrats nor Republicans will be too pleased come next year. States which have been recently labeled as ‘safe Republican’ in Presidential elections will gain seats, but in more Democratically inclined areas. States recently labeled as ‘safe Democrat’ in Presidential elections will lose some seats. The biggest gain will be in Texas. Texas can expect to gain four House seats, at least some of which will be placed in locations more favorable to Democratic candidates. Meanwhile, New York, a state typically labeled as ‘safe Democrat’ in Presidential elections, will likely lose two House seats. In terms of multi-district moves, Florida will likely gain two seats and Ohio will likely lose two seats. Arizona, Georgia, Nevada, South Carolina, Utah and Washington will all likely gain a seat while Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey and Pennsylvania will all likely lose a seat.

Reapportionment is becoming a problem not only for certain Presidential candidates but also state and federal candidates, especially candidates in the Midwest where rapid population flight is decimating the electoral landscape. The close electoral math is mapping onto reapportionment strategy. Democrats and Republicans are locked in a mortal struggle to gain control of state houses and governor’s mansions across the nation, in anticipation of being able to influence the composition of both state legislatures and Congress over the next decade.

Factoring into the reapportionment calculation is the recent Supreme Court decision in Northwest Austin Mun. Utility Dist. v. Holder, which revolved around the “preclearance” obligation of the 1965 Voting Rights Act. The 1965 Voting Rights Act preclearance obligation requires certain municipalities in the South to get federal approval before changing election laws or venues. It was designed to eliminate the racial discrimination in those municipalities. Interestingly, the Northwest Austin Municipal Utility District Number One, like many similar areas in Texas, did not exist in 1965 but was still covered by the preclearance obligation. The Municipal Utility District sued the Attorney General, asking to be exempted from the “preclearance” obligation and challenging the Constitutionality of the 1965 Voting Rights Act. The outcome of the case suggests that the Supreme Court wants to narrow the scope of the 1965 Voting Rights Act, specifically the preclearance obligation. It is possible that two cases, LaRoque v. Holder and Shelby County, Alabama v. Holder, both challenging the constitutionality of the preclearance obligation, will make it onto the Supreme Court’s docket in the coming years, allowing the court to further narrow the scope of the 1965 Voting Rights Act.

Given this outcome and the upcoming battles over reapportionment it seems inevitable that the Supreme Court will entertain several reapportionment cases in its 2011 term resulting in the disappearance of the preclearance obligations. This factors into electoral strategy immensely. The legislators who win election in 2010 in the South will likely have the ability to change the electoral landscape in that region far more than any legislators in the past half-century. Despite this, reapportionment will almost certainly not become a major campaign issue in 2010. Although every legislator will acutely feel the need to participate and influence reapportionment the convoluted nature of reapportionment will doom it to a second tier status.  Nevertheless, “fair district” crusaders in some states have managed to get measures, which require that reapportionment occurs without political bias, on the ballot.  The impact of these ballot measures, especially those that pass, remains to be seen but one thing is certain – observers ought to expect to see some interesting cases move up through the courts over the next few years.

Natch Greyes is a first-year student at William and Mary School of Law.

Permalink: http://electls.blogs.wm.edu/2010/11/03/a-prelude-to-reapportionment

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