REDISTRICTING FIGHT WILL BE TOUGHER THAN EVER

David Broder
San Jose Mercury News
July 19, 2000

ON a perfect summer Sunday afternoon, more than 200 legislators and legislative aides sat in a windowless room in a downtown Chicago hotel, listening intently and scribbling notes as a California professor lectured on ''the difference between ecological regression and ecological inference'' -- a fancy way of mathematically describing the relationship between the racial makeup of a district and its voting patterns.

The topic of the four-hour workshop at the National Conference of State Legislatures was redistricting -- the arcane but critically important process of drawing the lines for the political battlegrounds of this new century. It will begin in earnest next spring in state capitols around the country, when the results of the 2000 Census are made public. Judging from what was said here, it is going to be a helluva fight.

The stakes are enormous. Control of redistricting likely will determine which party runs the House of Representatives, now almost evenly balanced between Republicans and Democrats and likely to remain so after the current campaign is finished. And the partisan balance is equally close in many state legislatures, whose district lines will also be redrawn to keep them equal in population. At least four factors make the redistricting fight more complex -- and more contentious -- than ever.

First, there's technology. As Clark Rensen, head of a consulting firm called Polidata, told the legislators, ''we will benefit from the billions of investments by Silicon Valley'' during the past decade that have increased the power and lowered the price of the computers used to merge population and election data and produce maps of districts that meet legal standards and also yield desired political results.

''The bad news,'' Rensen added, is that thanks to computers and the Internet, ''everyone will have a piece of the action. Everyone can look at your plan.'' Indeed, interest groups of all kinds -- and particularly those advocating for underrepresented minorities -- are gearing up to promote their own plans and block those they consider unfavorable.

Second, there's litigation. Jeffrey Wice, an aide to the speaker of the New York Assembly and a veteran of the redistricting wars, pointed out that nine years after the results of the last census were delivered, ''we are still in court in North Carolina and Alabama'' on redistricting cases. His rundown of judicial rulings that have altered the legal landscape for the legislators' work, delivered at New York speed, had the note-takers scrambling.

But there is more to come. Dale Oldham, a Washington lawyer whose clients include the Republican National Committee, said, ''We had redistricting litigation in 41 states after the last census. This time, I'm sure we'll get the other nine.''

What gives him that confidence is the third new factor in the equation -- the unresolved controversy over what numbers should be used. The Clinton administration, backed by many experts, said the undercount of minorities and recent immigrants that marred the 1990 census should be fixed by statistical adjustment of the actual head count. Republicans challenged that policy and the Supreme Court upheld their claim that the Constitution required an ''actual enumeration'' for the purpose of apportioning seats in the House among the 50 states. But the same decision appeared to leave the way open for using adjusted data for every other purpose -- including redistricting.

But according to the State Legislative Policy Institute, at least five states -- all of them with Republican legislatures -- passed laws this year requiring that the unadjusted numbers be used for redistricting. A lawsuit on the Virginia statute could give the Supreme Court an early opportunity to clarify its ruling, but Oldham warned that if no decision is forthcoming next winter, ''You're going to have to make a bet on which numbers to use -- and you may be sorry.''

Oldham added that when Census Director Kenneth Prewitt announced that he would publish two sets of numbers -- adjusted and unadjusted -- ''I called another lawyer who handles districting cases and said, 'Good news. Your children are going to Harvard. '''

And then there is the fourth factor -- namely, Sandra Day O'Connor. She has been the swing vote on so many 5-4 decisions on redistricting cases in the past decade that Bernard Grofman, a professor at the University of California, Irvine and author of several books on redistricting, told the audience, ''Sandra Day O'Connor is the law.''

Which, Oldham pointed out, throws in yet another complication. With the court so closely divided, he said, all the legal standards could change, ''if one justice steps out in front of a bus -- and it doesn't matter much which one it is.''