...completely controls the redistricting process will perpetuate its majority even if doing so unfairly disadvantages the minority party. (2) Tendencies toward political excess are most likely to be deterred when redistricting is done by (1) a non-partisan commission; (2) a divided government, forcing bipartisan cooperation; or (3) the judiciary, working with third-party, neutral mapmakers to check majority excesses. (3)

The 2001 Georgia redistricting was a blatant exercise of power by a political majority bent on self-perpetuation. (4) By the mid-1990s, Democrats had ceased to attract a majority of the votes for state legislators, yet they continued to win a majority of seats in both chambers. (5) When confronted with the need to redistrict, Democrats sought not simply to hold their own but to increase their share of the seats. The redistricting led to two judicial challenges, two trips to the U.S. Supreme Court, (6) a modification of the non-retrogression standard of Section 5 of the Voting Rights Act by the United States Supreme Court, (7) and, ultimately, invalidation of the districts for violating the one-person, one-vote principle. (8)

In Larios v. Cox, the court implemented a replacement map crafted by a special master named by the three-judge panel. (9) The court largely ignored political factors in deference to traditional redistricting principles and on April 14, 2004, produced a map with population deviations of less than +/-1%. (10) After the implementation of this politically-neutral plan, the Democratic party lost control of the Georgia House of Representatives for the first time since Reconstruction. (11) Statistical patterns present in the 2002 legislative elections, when applied to the demographic and structural changes in the new districts, projected a Republican majority with a shift in the expected partisan majority between ten and thirteen districts. (12) In actuality Republicans gained far more seats, and only about half of the seats changing hands can be attributed to the remap. (13) The remap demonstrates the potential consequences of undoing a partisan gerrymander and helps define the limitations enunciated by the courts regarding their ability to recognize and undo partisan gerrymanders.

In this Article, we explore the impact of a court-ordered and implemented re-crafting of state legislative districts in the state of Georgia. First, we explore the notion of "fairness" in legislative redistricting and identify the factors associated with a "fair" map. We then describe the partisan nature of the 2001 Georgia state legislative redistricting and the political consequences of this most effective gerrymander. We also describe the two legal challenges to the Georgia maps--Georgia v. Ashcroft and Larios v. Cox--and discuss the path of both cases to the U.S. Supreme Court. We then explore the expected and observed consequences of the Court-ordered and implemented redistricting that undid the unconstitutional Georgia gerrymander, and draw conclusions regarding the prospect for how court remedies can affect partisan bias in redistricting plans.

WHAT ARE "FAIR" LEGISLATIVE MAPS?

The controversies arising in redistricting relate to a pair of primary questions: what are the motives of the map-maker, and how do these motives affect the "fairness" of a map? These questions are difficult to address because the notion of fairness is arbitrary and relative. (14) The term "gerrymander" means to craft legislative boundaries for political advantage. (15) In popular parlance, contorted, oddly-shaped districts resembling mythical beasts, windshield-splattered bugs, or elongated barbells are considered to indicate something facially "unfair." (16) Districts of conventional geometric shape, such as squares, rectangles, and hexagons, are less questionable. (17) It is also possible to gerrymander for advantage without violating compactness and using normal shapes, but to do so is far from easy and likely leads to some waste relative to the goals of those who gerrymander. (18) The Georgia redistricting of 2001 raised all of these questions, as legislative districts became less compact, less respectful of political subdivisions, stretched notions of contiguity, and tested the limits of population inequality. (19)

Population Equality

Once the judiciary decided to ignore Justice Frankfurter's admonition to avoid the political thicket and not interfere with legislative decisions allocation, (20) the courts' initial concern focused on differences in the numbers of residents per district. (21) Courts interpreted the Equal Protection Clause and Article I of the U.S. Constitution to require that all collegial bodies that chose representatives from districts equalize the population among their districts. (22) Karcher v. Daggett reiterated the standard for population variations in congressional districts, stating, "absolute population equality [must] be the paramount objective of apportionment [because] the command of Art. I, [section] 2 as regards the national legislature outweighs the local interests that a State may deem relevant in apportioning districts for representatives to state and local legislatures." (23) Ultimately, the Supreme Court signaled that state legislative plans that limited the range in population across their districts to no more than 10% were presumed to comply with the equal population requirement. (24)

Dilution of Minority Political Influence

After population equality, the second most important requirement when assessing districting plans is that they not dilute minority political influence. Georgia, along with Alabama, Louisiana, Mississippi, South Carolina, Virginia, about half of North Carolina, and parts of eight other states must prove the racial fairness of their districting plans as a result of being subject to Section 5 of the 1965 Voting Rights Act. (25) This legislation and its subsequent amendments require jurisdictions with low levels of participation in the 1960s and 1970s to submit all legislation that changes election laws or procedures to either the Attorney General of the United States or the district court of the District of Columbia for review and approval before implementation ("preclearance"). (26) Districting plans are among the types of legislative changes requiring federal approval. (27) The initial legislation sought to protect African-Americans, but the 1975 amendments expanded preclearance requirements to linguistic minorities such as Latinos, Native Americans, and Asian Americans. (28)

Districting plans in jurisdictions not subject to the preclearance provision of the Voting Rights Act may be challenged by minorities who believe that their political influence has been diluted, or by the U.S. Attorney General. (29) The preclearance provision of Section 5 applies to only 16 states; the entire nation is subject to Section 2 of the Voting Rights Act as amended in 1982. (30)

The standard applied by federal authorities in the course of preclearance has been non-retrogression. (31) For most of the time since its inception, non-retrogression has barred new maps that reduce the number of districts in which a protected minority constituted a majority of the population. A second application forbade reducing the minority population percentage in districts in which they constituted a majority. (32) This has allowed federal authorities to ensure that concentrations of minority group members not be dispersed in the course of redistricting. (33)

Continuity of Representation

Several additional factors may be considered in the course of drawing new districts, although these are afforded less significance than equal population and the fair treatment of minorities. (34) An additional consideration has been the treatment of incumbents and their constituencies, with attention specifically on questions of political or partisan fairness. (35) The treatment of incumbents usually focuses on three aspects:

(1) Continuity of representation: what proportion of an incumbent's new constituency comes from the old constituency, i.e. does the new map retain the core of the old district? (36)

(2) Political balance and continuity of the reelection constituency: how does the partisanship of the new district compare to the old district? (37)

(3) Pairings: are incumbents paired so they must run against each other? Are the pairings competitive? Are they party-neutral or do the pairings advantage one party over the other? (38)

On the other hand, protection of incumbents is a traditional districting principle that a legislature may consider. (39) Incumbent protection is limited to the extent that it must give way in the face of higher priorities that have been recognized by courts--equal population and equitable treatment of minorities. (40) In assessing the fairness of maps, biased treatment of incumbents by region or party can be important. Treatment of incumbents may indicate a general partisan bias in map design. When changes in party competitiveness, core retention, and incumbent pairing fall disproportionately and detrimentally on incumbents of one party, and are not a product of the pursuit of population equality, racial fairness, or other traditional redistricting principles, this can constitute evidence of partisan gerrymandering. (41) Thus, incumbency may be subordinated to other redistricting principles.

Partisan Fairness

Of all the fairness concerns in redistricting, none has proven more elusive than partisan fairness. Representative political systems rest on a presumption that preferences will be efficiently translated into government, and, more specifically, that majority preferences will translate into majority government. The earliest successful challenges to malapportioned legislatures came in the one-party states of Tennessee, Alabama, and Georgia. (42) While the motivation for these suits was not partisan, the notion that a system of fair representation should not disfranchise the majority to benefit a geographic minority assumed a new place in constitutional law.

Partisan fairness has gained little traction in the courts as a factor for evaluating gerrymanders. A majority of the Supreme Court appears to believe that partisan gerrymanders are justiciable, but the court has never enunciated a standard that a plaintiff has been able to meet. Most recently in the case of Vieth v. Jubelirer, congressional redistricting in Pennsylvania gave the Court an opportunity to revisit issues of partisan fairness. Pennsylvania's Republican-controlled state legislature and governor implemented a congressional map that resulted in Republican advantage across numerous more districts. Litigation made its way to the Supreme Court, which indicated that a constitutional standard has not been obtained by those who seek to eliminate partisan bias in district designs. (43)

The Supreme Court, in Davis v. Bandemer, held that partisan gerrymanders were illegal only if they precluded all hope of success and all input by the minority party into the political process, a standard so impossibly high that no redistricting product has been invalidated. (44) Indeed, partisan unfairness is recognized as a reason for crafting constituencies that might otherwise be seen as illegal racial gerrymanders. In Easley v. Cromartie, the Supreme Court found no violation of the Equal Protection Clause in an alleged racial gerrymander because partisanship was as good an explanation as race for the shape of the challenged congressional district. (45)

When re-drawing electoral maps, courts take partisan fairness into consideration. When forced to correct defective maps, courts have taken pains to avoid advantaging one political party, lest the court be guilty of gerrymandering. (46) These same courts have asserted, however, that because their job is to remedy legal defects rather than to correct political defects, they will make no proactive effort to undo political bias in previously legal maps. (47) Rather, when courts have to draw maps after a legislature fails to discharge this responsibility, each court uses as its starting point the last legal map for the jurisdiction, and the court-prepared maps aspire to partisan neutrality. (48)

GEORGIA REDISTRICTING 2001: DEMOCRATS' LAST STAND

Georgia Democrats entered the 2001 redistricting process confronting unprecedented challenges. For the first time since immediately after the Civil War, they faced the possibility of losing control of the legislature. (49) For the better part of a decade, Democratic support among white voters had eroded, changing Georgia from a state completely dominated by Democrats to a competitive one. (50) During the 1990s, Democrats lost their majority in the state's congressional delegation. (51) When struggling to secure Department of Justice ("DOJ") approval of a congressional plan in the early 1990s, Democrats held all but one of the ten congressional seats. (52) By 1995, Republicans filled eight of the enlarged delegation's eleven seats. Republicans defeated Democrats in seven contests, while picking up an eighth seat when Rep. Nathan Deal changed parties. (53) With Deal's conversion, Georgia's delegation consisted of eight white Republicans and three African-American Democrats. (54)

For the first time in more than a century, Republicans won three of the state's statewide constitutional offices, retaining two of those offices in 2001. (55) Republicans also won a majority of the five-person Public Service Commission ("PSC"). (56) In 1991 Republicans held 35 of the 180 state House seats and 11 of the 56 state Senate seats. (57) A decade later Republicans controlled 74 House and 24 Senate seats. (58)

Democrats' retention of majorities in both legislative chambers owed much to the districting plan. (59) Although they continued to come up short in bids to take control of a chamber, GOP candidates consistently won majorities of the legislative votes cast statewide (the aggregation of all votes cast for all candidates, by party, across all districts). (60) As shown in Table 1, after the General Assembly adopted new districts in 1996, Republicans won 52% of the statewide vote for senators. (61) This marked the first time the GOP polled a majority of the ballots cast for all legislative seats in the Senate, but this breakthrough gave them only one more seat, leaving them with less than 40% of the chamber. (62) In 2000, the Republicans' top priority was to win a Senate majority in order to thwart gerrymandering by Democrats. (63) The GOP boosted its vote share to 55% but got only 45% of the seats. (64)

The pattern for the House in Table 1 is similar to that of the Senate. Even though the GOP won the bulk of the vote, it managed to win barely 40% of the seats. (65) In the election that chose the members who would redraw the House in 2001, Republicans won 42% of the seats with 52% of the vote. (66) Republican inability to win control of a legislative chamber, despite taking the bulk of the vote, contradicted the usual pattern for single-member systems like that used in Georgia during the 1990s. (67) The principle, well recognized for a century, that the majority party gets a bonus in seats, has sometimes been referred to as the "cube law of politics." (68)

But just the opposite was happening in Georgia. Demographic shifts during the 1990s compounded the challenges confronting Democrats. The suburban areas experiencing the most rapid growth tended to vote Republican. (69) The 2000 census showed the Columbus, Savannah, and Augusta areas each had approximately one more representative than their population would justify. (70) The populations of Macon, Albany, and the combination of DeKalb and Rockdale Counties east of Atlanta each came up short of the one person, one vote standard by about three-fourths of a representative. (71) On the other hand, the population of suburban counties where Republicans have prospered were under-represented. For example, the 2000 population entitled Cobb County northwest of Atlanta to an additional House seat while the combination of suburban Gwinnett and Forsyth Counties on the northeast side was under-represented by approximately four seats. (72)

The House seats held by African-Americans at the time of the 2000 census were under-populated by a quarter of a million people. (73) This would translate into 5.5 seats. The seats held by white Democrats at the time of the census were under-populated by a combined 3.6 seats. (74) If the redistricting plan had simply reallocated seats so as to reflect the current incumbents in the seats, Republicans might have picked up nine seats. The Georgia House of Representatives has 180 members, while the Georgia Senate has 56 members. With nine additional seats, Republicans would have come close to half the membership in the House, reaching 87 seats.

In the Senate, 12 of 13 majority-black districts were under-populated as of 2000. (75) The sum of the population in these districts could justify only ten districts. (76) The population in the districts held by white Democrats also came up one seat short of what would be required under one person, one vote. (77) On the other hand, the 24 districts represented by Republicans had the population that would justify 27 seats--one short of half the 56-person chamber. (78) One heavily Republican Senate district had twice the ideal population. (79) These figures suggest that redistributing the population across the existing Senate districts to eliminate deviations could bring the GOP right to the brink of a majority. Combining the recent electoral performances with the demographic shifts indicate that the Democrats who controlled the process had little margin for error if they were to retain control of the legislature.

Past governors had taken a hands-off approach to redistricting. (80) Governor Roy Barnes broke with tradition, assuming a central role in the 2001 map making, and made a particularly great impact on the Senate map. (81) In previous decades, much of the work of composing and tweaking maps to accommodate the concerns of powerful legislators took place in the Legislative Reapportionment Office. (82) In 2001 Senate maps were drawn under the watchful eye of an out-of-state consultant. (83) Democratic legislators were shown how the map treated their districts, but even they did not get a glimpse at the entire plan for the state. (84)

House Speaker Tom Murphy, who had often clashed with governors during his quarter century leading the chamber, insisted on making changes to the Governor's map. (85) As the minority party, Republicans had no input into the maps, but unlike in the past, many Democratic legislators also had minimal input. (86)

The 2001 Plans

Democrats had to distribute their minority of the vote statewide to maximum advantage to force Republicans to squander their electoral advantage. As one step to maximize the influence of the dwindling Democratic electorate, the House plan resurrected multi-member districts ("MMDs") that had been eliminated in 1992. (87) In the new plan, MMDs contained just over one-third of the 180 legislators in the chamber. (88) Several MMDs were designed to defeat a Republican incumbent by swamping a concentration of GOP voters in a part of the district with greater numbers of Democrats elsewhere in the district. (89) For example, Henry County, one of the nation's fastest growing counties during the 1990s, (90) had a Republican representative. The new map placed the Republican in a three-person district dominated by Democratic voters in southern DeKalb County. (91) Once the Republican understood the impossible situation into which he had been placed, he aborted his reelection bid. (92) A four-person district was drawn to protect Atlanta Rep. Kathy Ashe, who had switched party affiliation from Republican to Democrat. (93) Had she sought reelection in her old Single Member District ("SMD"), Republicans angered by her defection might have turned her out. The new district contained what had been three Democratic districts, along with Rep. Ashe's former district. (94)

A second Democratic strategy--used in both chambers--overpopulated Republican districts while under-populating those with histories of...

NOTE: All illustrations and photos have been removed from this article.



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