“Will the Court Ever Address Partisan Gerrymandering?”

My New York Times op-ed on today’s redistricting decisions is now available here (as most readers know, the NYT chooses its own title for these).  Here are a couple excerpts:

Among major democracies, only in the United States are self-interested politicians given the exclusive power to design election districts for themselves and their allies. Other countries lodge this power with independent commissions. In the absence of such institutions, the pressure for courts to impose constitutional constraints on partisan gerrymandering becomes powerful, particularly as the manipulation of electoral districts for partisan advantage has become more brazen, more extreme, more effective and more consequential. . . .

But the court’s rejection of statewide challenges in the Wisconsin case will make gerrymandering litigation more complex. Instead of being able to rely primarily on data showing the overall partisan advantages of a plan, challengers will have to prove how and why specific districts were drawn in the way they were.

Redrawing district maps is typically done on a computer by an expert in consultation with a few key legislators. Hundreds of changes to the map are explored behind closed doors. Challengers then have to try to reconstruct how any particular district ended up the way it did; in other words, why certain areas were left in or out. This can mean lengthy trials and arguments in court teasing out the reasons particular choices were made. . . .

Looming in the wings, and probably to be heard in the next term is the case from North Carolina, which will squarely test how aggressively courts will be in policing partisan manipulation of district design. We are likely to find out then whether it really is legal for legislatures to move voters in or out of a district based on their voting histories for no legitimate purpose other than the party in charge of the redistricting is seeking to gain partisan advantage. . . .

[U]ntil we shift to a more sensible system than having partisan state legislatures create election districts, judicial constraints would be welcome. Monday’s decisions reject one means of challenging partisan gerrymanders under the Constitution, but the court is soon going to be faced with other approaches.

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