In response to my earlier post about the Wall Street Journal‘s position below on the partisan gerrymandering case, Marty Lederman sent the following query along to the election law listserv:

More fundamentally, is it obvious that there is a “Democratic” and a “Republican” “side” in Vieth, other than in the narrow sense that Democrats would benefit in Pennsylvania if the Court were to invalidate the redistricting that occurred there? It is very consipcuous that, so far as I know, the national parties have not taken any “sides” in the case. (I’d be interested to hear if they have said anything about it at all.) Right now, of course, the Republicans are cleaning the Democrats’ clock on redistricting across the country, both because they focused for the past couple of decades on gaining control of state houses, and because at present they’re much better, and more ruthless, at playing the game. But is there any consensus that, in the long term, a reversal in Vieth would benefit the Democratic Party? What would Phil Burton say?

Here is the response I just sent to that list:

The question is one of time horizons. I think that given the positions of Democrats for this round of redistricting at least, whatever they can do to change the balance of power in the House would be in their short term interest. (On the Republicans’ advantages, see Sam Hirsch, The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting, 2 Election Law Journal 179 (2002).) This is not universally true for all Democrats even this decade. See for example, this brief filed by the (Democratic) Alabama legislative leadership, supporting the Republicans in Vieth.
The harder question is the long term. Those familiar with Phil Burton’s Democratic redistricting in California might never have imagined that the tables would turn. I think they could well turn again against Republicans, though probably not in this decade. So even those Democrats with a partisan outlook might not agree to give partisan gerrymandering more teeth if they are looking sufficiently in the long term.
I must confess that I’m not a regular reader of the Wall Street Journal opinion page. Perhaps it was unfair of me to expect that the editorial board might change their view on the virtues of court intervention in partisan gerrymandering now that it helps Republicans. Certainly there are Democrats who had called on the courts to stay out of it in the 1980s who are more sympathetic now. (Indeed, that is the thrust of the WSJ editorial).