The following is a guest post from A.J. Pate:
Systemic Poison in the Body Politic
Ned Foley’s recent commentary, “Of X-Rays, CT Scans and Gerrymanders”, was an interesting analogy linking advancements in cancer research to advances in identifying partisan gerrymandering. However, cancer is an organic disease which attacks disparate parts of the body, most of unknown causes, thus unpreventable and most often incurable. Two preventable exceptions are lung cancer and skin cancer. But cessation of smoking will not cure lung cancer. And total darkness will not cure skin cancer.
Perhaps a more apt analogy would be people being poisoned by self-interested criminals. Partisan gerrymandering is a systemic poisoning of the body politic, a deliberate, corrupt process to achieve predetermined results by self-interested politicians.
Much attention has been fixated recently on scientific solutions, which appear to be reaching the outer limits of practical application, improbably providing a definitive judicially manageable standard. There are no magic cures lurking within those penumbrae, complex calculations incomprehensible to most Americans. In concluding his relentless, decades-long pursuit to end partisan gerrymandering, absent a bright-line rule, Justice Kennedy would not want his valedictory and legacy to end in indeterminacy, “not with a bang but with a whimper.”
There is a curious silence on one of the most ancient scientific principles, dating back to Aristotle, and still viable today. That is Occam’s Razor: the simplest effective solution is the best solution. The Court should no longer attempt so ineffectively to treat symptoms of this poison or search for an antidote, but simply remove the source of the poison. Let Occam’s Razor slice through the Gordian Knot of partisan gerrymandering.
The obvious root source of partisan gerrymandering is the ready availability of partisan political data in redistricting software. The simplest solution would be for the Court to ban its use as a negative, poisonous input into the redistricting process, extrinsic manipulations adverse to the constitutional provision of fair and effective representation. Banning the use of partisan political data in redistricting would be easily judicially manageable at every court level. But, this simple prophylactic receives virtually nil attention. Two primary tools employed by gerrymanderers are zero deviation as a cover and the divided census tracts necessary to achieve that dubious goal. Yet there is also a strange silence on the root source of partisan gerrymandering and these tools of its implementation.
This bright-line rule, a simple ban on the use of partisan political data, has many distinct and significant advantages, and no disadvantages are readily apparent:
- could be implemented immediately by the states with minimal cost by simple software modification
- would be applied ex ante to statewide maps and subject to forensic analysis before implementation
- easily manageable by lower courts, drastically reducing years of appeals by shifting focus from ex post quantative litigation to ex ante qualitative compliance
- would make redistricting process and plans transparent and accessible
- would make judicial reviews strictly objective and technically neutral, with partisan consequences a nonfactor
- self-explanatory, easily understood by the general public, becoming one of the most popular decisions the Court could ever deliver.
Contrarily, the Court’s worse course would be to become a subjective arbiter between the major political parties in divining partisan winners and losers in our electoral process, stepping into quicksand in the middle of the political thicket. The current Court’s political polarization is obvious to the electorate and would render consequential decisions subject to intense suspicion of partisan bias, with resultant harm to respect for the Court and even the rule of law. The Court’s public approval would be in imminent danger of sinking to the depths of used car salesmen and the U.S. Congress.