C&E: There are two competing narratives moving into the 2010 election regarding redistricting: one is of a growing demographic imbalance that favors Democrats and the other is of Republican gains in statehouses facilitating a redistricting process that favors the GOP. Which do you see as more likely?
Smith: They are not inconsistent with each other. The demography favors Democrats going forward but, after 2010, Republicans could have a monopoly in some states and do some redistricting that favors them. We have seen this before – after the 2000 election, Florida, Pennsylvania and Michigan [had gerrymandered districts that favored Republicans] and eventually in Texas in 2002. All those places saw extreme swings from Democratic to Republican in Congress based on the redrawing of the map. Of course, they swung back in ‘06 and ‘08. Sometimes gerrymandered districts don’t last long.
C&E: Anticipating a Republican wave in November, can we expect that any gerrymandering in favor of the GOP will be short lived?
Smith: Sometimes it is and sometimes it isn’t. Florida did not self-resolve. On the other hand, Pennsylvania and Michigan self-corrected quickly. When the wave swings back the other way it tends to go back [to a more sustainable redistricting policy].
C&E: How do you avoid having redistricting efforts challenged in the courts?
Smith: That is pretty hard to do. There is so much at stake and the law is always in flux. Expect that you will be sued no matter what you do. It doesn’t mean you are going to lose [those court challenges]; you can be in a better or worse position depending on how you draw the map. If someone else is going to be unhappy, you will be challenged. Unless a bipartisan consensus is reached.
C&E: But sometimes bipartisan compromise can postpone a natural realignment, as we saw in the 1980s in the South?
Smith: Yes. Sometimes a bipartisan compromise tends to freeze everyone in place and can create an incumbent-friendly environment.
C&E: What trends will we see in next year’s redistricting proposals?
Smith: I think it is hard to tell until we see the election results. There is a big difference between divided government and unified government in the swing states, Florida, Texas, Pennsylvania and Michigan. Those states could blow up again as they did two years ago, but they also might not.
C&E: How would you advise your clients going into a redistricting drive?
Smith: You have to plan and be ready. You need to have a good team in place with experts on both the legal front and the statistical front so you can know what your map does and whether it is legal. Be sure you understand what your goals are in advance.
C&E: What should your goals be?
Smith: That depends on who you are. Some places [and candidates] will want to compromise. Some will want to aggressively change the balance of the state.
Paul M. Smith is a partner with the Jenner & Block law firm’s Litigation Department. He is Chair of the Appellate and Supreme Court Practice and a Co-Chair of the Creative Content, Media and First Amendment, and Election Law and Redistricting Practices. Mr. Smith has had an active Supreme Court practice for two decades, including oral arguments in thirteen Supreme Court cases. Mr. Smith also worked extensively on several other First Amendment cases in the Supreme Court, involving issues ranging from commercial speech to defamation to “adult” speech on the Internet. Mr. Smith also represents various clients in trial and appellate cases involving commercial and telecommunications issues, the First Amendment, intellectual property, antitrust, and redistricting and voting rights, among other areas. His recent trial work has included several cases involving congressional redistricting as well as challenges to state video game restrictions under the First Amendment.
Noah Rothman is the online editor at C&E. Email him at firstname.lastname@example.org