Political Gerrymander Upheld
In 5-4 Supreme Court Decision

By Henry J. Stern
April 29, 2004

Fairness lost a major battle yesterday when the United States Supreme Court, in a 5-4 decision, refused to overturn a district court decision in a Pennsylvania Congressional districting case. The court split precisely the way it did in Bush v. Gore, the case that helped decide the 2000 presidential election. You can view the opinions of the justices by linking to Vieth v. Jubelirer. Justice Scalia spoke for the majority, Justice Kennedy concurred, and Justices Stevens, Souter and Breyer wrote separately in dissent.
 
The Vieth case arose from a plan approved by the Republican-controlled General Assembly (legislature) of the Commonwealth of Pennsylvania that reduces the number of districts likely to elect Democrats to Congress. The five judges who upheld the plan (Rehnquist, Kennedy, O'Connor, Scalia and Thomas) were all appointed by Republican presidents. The four who dissented (Stevens, Souter, Breyer and Ginsberg) were appointed by two Republicans (Ford, who chose Stevens, and Bush 41, who picked Souter) and one Democrat (Clinton, who selected Breyer and Ginsburg).
 
Souter, who was chosen in 1990 to fill the seat of retiring Justice William J. Brennan, Jr., turned out to be a stealth progressive, voting to deny the presidency to the son of the man who appointed him to the court. To some, this is a matter of high principle; to others, a case of monumental disloyalty. As luck would have it, his vote did not affect the result.

The opinion of the four more conservative judges in Vieth was that the court should not enter politics by evaluating claims of political unfairness, these being matters of state sovereignty. Federal courts and the Justice Department have for some years monitored district lines to assure that minority voters are placed in districts where they can elect public officials. In Vieth, the discrimination was not racial, but political. By stacking some districts with large numbers of Democratic voters, and spreading Republicans around to achieve smaller minorities in more districts, the result is that more Republicans would be elected than if district boundaries were drawn on the basis of geography, city or county boundaries, compactness or contiguity.

The state of the law today, therefore, is that racial gerrymandering is approved, and in some cases required to reach a desired social result, but political gerrymandering is beyond the court's reach. Justice Kennedy stated, however, that although he did not find the districting egregious in the case, he would not rule out a fact situation in which the districting was so partisan as to deny voters in certain political parties equal protection of the law. This view might be relevant in the Texas case, which we will describe later.

The Supreme Court has a long history of involvement in cases challenging district lines. See the Center for Voting and Democracy for some historic background of recent cases. The pattern of decisions over the years shows, however, a slowly increasing concern on the part of the court that lines be fairly drawn. In the Vieth case, the 5-4 judicial majority that assisted in electing Bush 43 stuck together to uphold the Pennsylvania lines.

It is likely, from what we may surmise of the judges, that Rehnquist, Scalia and his ally Thomas are true believers in state supremacy on political matters (except in Florida). I suspect that O'Connor and Kennedy may have reservations, but having deviated on important matters this year (O'Connor on affirmative action and Kennedy on gay marriage), they returned to the fold on this issue, which affects the future of the Republican Party. From this perspective, social issues are questions on which high-minded men and women occasionally differ, but politics is business, where conformity is de rigeur.

In the Texas case, House Majority Leader Tom DeLay engineered a congressional redistricting so far-reaching that Democratic state senators fled the state, first going to Oklahoma and then to New Mexico, to prevent a legislative quorum from passing the bill. The Democrats lost out when one senator deserted them, returning to Texas.  Before that, DeLay's minions had employed the Texas Rangers to carry out the political errand of rounding up the Democrats as if they were felons. This case will eventually reach the Supreme Court, and, because of its fact situation, the Texas plan may be more difficult to uphold than Pennsylvania's. It will most likely be a defining instance for Justice Kennedy to explore the boundaries of injustice.

The risk of judicial involvement in political districting is that the Supreme Court may, in time, become as partisan as the state legislatures, and whichever party dominates the high court will then be able to draw district lines for the entire country. Political circles generally agree that some adjustment of districts to meet political needs is not unreasonable. Too much of it, however, eliminates competitive districts, abuses geography and history, and disenfranchises voters, who lose the right to make effective choices and have responsive representation.

The question, 'How much is too much?' is a question that has plagued affirmative action decisions, and is likely to rise again in districting cases. Precisely what is outrageous can be as difficult for a court to determine as precisely what is obscene. But these questions must be decided somewhere, and in our imperfect democracy the best place to do that is the Supreme Court, where Justices are nominated by the President, vetted by the press, law professors and the opposition party, confirmed by the Senate, and then serve for life, or until they step aside by their own will.
 
It would be helpful if independent, nonpolitical groups could set standards for districting; every legislative body that currently does the job is politicized to a greater or lesser extent. After all, these people are elected, and they want to stay elected. The New York City Redistricting Commission, created by the City Charter, touted as reformist, is the creature of the elected officials who appoint its members. There really should be a better way to draw lines, but in the absence of Divine guidance (which is said to be available on other issues), I would leave the matter to the Supremes and pray for their enlightenment, the wakening of their consciences, or at least the loosening of their ties to political progenitors.

The Union will endure, but it would be more perfect it its legislators were chosen more equitably.