Back in 1986, the Supreme Court first declared that it could violate the Constitution’s Equal Protection Clause when Democrats, for example, overreach and mostly exclude Republicans from the political process through a one-sided redistricting effort. The court could not come up with a workable standard to judge when the dominant party had gone too far, and in the 18 years since that case, virtually no lower courts have found any particular partisan gerrymanders to be unconstitutional.
In the intervening years, parties in state legislatures have gotten bolder and the technology improved so that partisan gerrymanders are now both easier to accomplish and more effective in furthering the majority party’s interests. In Texas, for example, the Republican-dominated Legislature recently passed an unprecedented second redistricting of Congressional seats in the same decade — with the aim being to capture up to seven more seats for Republicans in the next election.
In last week’s opinion, Vieth v. Jubelirer, all the justices seemed to agree there was little good to be said about partisan gerrymanders. But four justices said the 18 years since the last case proved there was no workable standard for judging when something is bad enough to be unconstitutional or is simply politics as usual. Justice Anthony Kennedy, casting the decisive fifth vote, held the door open ever so slightly should someone be able to make an argument in the future as to how the line should be drawn.
The court got this one right, and for three reasons.
In the first place, the Supreme Court should not be imposing one-size-fits-all solutions for political problems. In the absence of a consensus as to the line between permissible and impermissible political behavior, the court should keep its nose out of each state’s political decisions.
The court has not always done so in the past. It has required all states and local bodies to use the “one person, one vote” rule in all elections; struck down term-limits laws for Members of Congress; told the states they may not make race a “predominant factor” in drawing district lines; and prevented Congress from limiting campaign spending to level the political playing field. Last week’s decision is a welcome break from the past in deferring to the political process itself.
The opinion is especially noteworthy because the court has rejected the argument put forward by some of the nation’s leading election law scholars that the court needs to become more aggressive in regulating politics so as to ensure the appropriate amount of political competition. Rather than embrace this “political markets” approach, the court has recognized the limits on its own powers to judge the best form of government for all of the United States.
A second reason the court got it right is that it is especially difficult to find standards to judge claims of party gerrymandering. Pennsylvania, as a state, voted in 2000 for Democrat Al Gore for president and for Republican Rick Santorum for Senate. Is Pennsylvania a Democratic state or a Republican state? If Republicans in the state legislature capture more than half the seats, should that be a constitutional problem? The court last week rejected not only its own 1986 standard and a new test proposed by the Pennsylvania plaintiffs, but also three additional tests put forward by the dissenting justices.
Third, in California and the other 23 states with an initiative process, there is a good political solution to the partisan gerrymandering problem: adopting nonpartisan redistricting by commission through the initiative process. In these states the voters can make their own decisions about the appropriate role of the parties in the redistricting process, rather than rely on a centralized decision by the Supreme Court.
Some of these states might move to more creative methods for choosing members of state legislatures such as through the use of cumulative voting — a voting system that can protect the rights of minorities by allowing them to concentrate their votes behind a smaller number of candidates. Some corporations even use such methods to protect minority shareholders voting for members of corporate boards.
Even in those states without an initiative process, governors are elected statewide and typically have to approve redistricting plans passed by state legislatures. In fact, Pennsylvania now has a Democratic governor, though too late to help in this round of redistricting. (So much for Democrats being shut out of the political process in Pennsylvania.) And state law can limit the practice too, as Coloradoans learned when that state’s Supreme Court struck down a partisan re-redistricting there.
All of this is to say that we should solve most political problems ourselves, rather than rely on the courts. When courts decide political cases, they shrink the universe of political arrangements available to states and localities. That power to shrink the universe should be used sparingly.
Kennedy’s decision to concur separately in the case is especially praiseworthy. His opinion is far from clear, and it will no doubt give courts and commentators heartburn for its lack of clarity. But its bottom line is a good one: It keeps the courts officially in the game as a backstop to preserve the possibility that courts will step in only in the most egregious cases of partisan manipulation. Sometimes it is good for the court to be unclear on the edges of the law. This is one of those times.
L. Hasen, a professor at Loyola Law School, Los Angeles, is co-editor
of the Election Law Journal. He covers election law on his weblog, www.electionlawblog.org.
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