Political Gerrymander Upheld By Supreme Court
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.
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 were all appointed by Republican presidents. The four who dissented were appointed two by a Republican and two by a Democrat.
The opinion of the 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. Although one Justice stated 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.
The Supreme Court has a long history of involvement in cases challenging district lines. 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 well-publicized Texas case, House Majority Leader Tom DeLay engineered a congressional redistricting so far-reaching that Democratic state senators fled the state to prevent a legislative quorum from passing the bill. DeLay’s minions 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.
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. 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 origins.
The Union will endure, but it would be more perfect it its legislators were chosen more equitably.
Henry Stern was NYC Parks Commissioner for 15 years and a Councilmember for nine. He is founder and director of NYCivic, a good government group. He can be reached at: email@example.com