The long-awaited U.S. Supreme Court review of the Tom Delay-orchestrated re-redistricting of Texas congressional districts finally came down today, and a splintered Court continued its recent habit of disarray on redistricting principles. It’s clear a sizeable majority of the Court has decided that mid-decade reversals of redistricting plans are not barred by the federal constitutution, and a less-sizeable majority refuses to consider re-redistricting as grounds for strong suspicion that illicit political gerrymandering has occurred. But the Court appears to be all over the place, as it has been for more than a decade, in determining when if ever political gerrymandering can violate the Constitution. Meanwhile, a 5-4 majority of the Court ruled than one of the districts in the DeLay Map violates the Voting Right Act as a straightforward dilution of Hispanic voting strength. But the decision about how to deal with it was dumped back to a District Court in Texas, which must now decide whether there is anything they can do about it between now and November. Obviously, fixing one district could affect many others. You have to try, as I did, to slog through the whole 132 pages of concurring and dissenting opinions to see how divided and tentative the Court is on this whole subject. I’m no fancified constitutional or elections lawyer, and praise the Lord I left behind this sort of preoccupation when I decided to go into politics, but still, you don’t have to put “Esquire” after your signature to figure out when the Supremes are a herd of kitty-cats. More troubling is the fact that the ruling on re-redistricting may not get the attention it deserves in political circles because it’s becoming moot for this particular decade.Looking back, Republicans got away with re-redistrictings in Texas and Georgia. Democrats tried to retaliate in Ohio and Florida, but the former effort failed dismally last year at the ballot box, while the latter foundered in the Florida courts (it could possibly be revived and placed on the ballot in 2008, but that’s awfully close to the next regularly scheduled redistricting anyway). A Republican-backed California re-redistricting measure also failed last year, but that was a bit of a special case, since it was poorly designed, and in any event was backed by a lot of non-Republicans. But no one should forget that the one place in which a DeLay-style GOP partisan re-redistricting foundered was Colorado, for the simple reason that the state’s own constitution banned mid-decade redistricting. Looking ahead to the next decade, states should strongly consider emulating Colorado’s ban on the practice of overturning congressional and state legislative maps every time partisan control of state government solidifies or flips. No one can any longer foster the illusion that the U.S. Supreme Court will do anything to stop the madness.
TDS Strategy Memos
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By Ed Kilgore
After absorbing a lot of Democratic gloom-and-doom about the midterms, I offered some silver lining at New York:
The 2022 midterms don’t look great for Democrats, who will try to buck history by hanging on to super-slim congressional majorities. Thanks to the particular lay of the land, Democrats have a decent chance of maintaining control of the Senate. But the House? Not so much: The two times since the New Deal when the president’s party won net House seats in a midterm (1998 and 2002), the president in question had sky-high job-approval ratings. Even if you believe Joe Biden’s plunge in popularity has been stemmed or even turned around a bit, he’s not going to have 60 percent-plus approval in November 2022 unless really crazy things happen. There’s just too much partisan polarization for that these days.
Thankfully for Democrats, even if they lose their congressional majorities next year, Biden himself won’t be an underdog for reelection in 2024. After all, the last two Democratic presidents were reelected after historically terrible midterms. Democrats lost 54 U.S. House seats in 1994 and 63 in 2010. Yes, they had bigger majorities going into those elections than Democrats have now. But they lost the national House popular vote by an identical 6.8 percent in both midterms, which is pretty bad, particularly since Democrats suffer from a voter-inefficiency problem in House elections (too many voters concentrated in too few districts).
It’s possible for a president’s party to lose a midterm so badly that bouncing back in the next cycle is all but impossible. Consider the man whose unique comeback accomplishment Donald Trump will be emulating if he runs in 2024, Grover Cleveland. The president Cleveland defeated in an 1892 rematch, Benjamin Harrison, was a Republican whose party lost an incredible 93 House seats in the 1890 midterms. This, mind you, was at a time when the House had only 332 members, which means the GOP lost over half their caucus in one cycle (an even worse percentage than in 1894, when Democrats lost a record 125 House seats during the midterm after Cleveland’s comeback triumph). In this era of polarization, nothing like that is going to happen to Democrats in 2022.
Looking more broadly at the power of incumbency, there have been 13 sitting presidents since World War II who were on the general election ballot. Nine of them won. The four losers all faced special circumstances. Gerald Ford had not previously been elected to anything more than the U.S. House; he ascended to the vice-presidency and then the presidency when disgraced predecessors resigned, and he pardoned the president who appointed him, the especially disgraced Richard Nixon. Jimmy Carter was caught up in a historical realignment that he had held off four years earlier by carrying his native South, which then resumed a massive Republican trend. George H.W. Bush suffered from a terrible economy but then also a party split (third-party candidate Ross Perot won a lot of previously Republican voters). And we all know about Donald J. Trump, who was impeached twice and seemed determined to offend swing voters.
In retrospect, what’s most remarkable is that Ford and Trump very nearly got reelected despite their handicaps, exhibiting not the weakness but the strength of incumbency. And it’s with that perspective that any early handicapping of a potential 2024 rematch should be considered. Trump benefited from incumbency in 2020, as will Biden in 2024. So the idea that the 45th president has some built-in advantage over the 46th — absent the renewed election coup so many of us fear — doesn’t make a lot of sense.