Redistricting Watch: The Gerrymander Lives

The Supreme Court has kept the partisan gerrymander (pictured here in its original form) alive and kicking. A splintered ruling today in the case of League of United Latin American Citizens v. Perry held that while one congressional district in southwest Texas had been drawn in a way that contravenes the Voting Rights Act by diluting the rights of Hispanic voters, the overall 2002 redistricting plan was acceptable; the Court further agreed with Tom DeLay and other partisans that mid-decade redistricting is allowed.

A plurality of the Court held that those who brought this suit have failed to provide sufficient evidence in any of their many lines of argument that a politically-motivated gerrymander violates the Constitution. They permitted a Dallas-area district to stand over objections that black voters had been disenfranchised, but ordered that the 23rd district be redrawn.

Justice Stevens, joined by Breyer, wrote in a dissent "By taking an action for the sole purpose of advantaging Republicans and disadvantaging Democrats, the State of Texas violated its constitutional obligation to govern impartially. 'If a State passed an enactment that declared 'All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles,' we would surely conclude the Constitution had been violated.'" (That internal quote, by the way, is from Justice Kennedy in an earlier redistricting case). In his own opinion later, Breyer adds "The record reveals a plan that overwhelmingly relies upon the unjustified use of purely partisan line-drawing considerations and which will likely have seriously harmful electoral consequences."

The gist of the arguments from Kennedy, Stevens, Souter, Ginsburg and Breyer is that they can't come up with any single rationale for striking down partisan gerrymanders that can claim a majority on the Court (even though they admit that such justifications could exist) - so they just can't act on them. Chief Justice Roberts and Alito say they're not sure there is any justification for striking down partisan gerrymanders, but they don't want to deal with that today. Justices Scalia and Thomas say bluntly "claims of unconstitutional partisan gerrymandering do not present a justiciable case or controversy."

On the issue of mid-decade redistricting, a majority (all but Stevens and Breyer, in fact) concluded that under current law, they're allowed: Kennedy writes "With respect to a mid-decade redistricting to change districts drawn earlier in conformance with a decennial census, the Constitution and Congress state no explicit prohibition." He adds "The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature's decision to replace mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders."

I agree with that determination. There is no Constitutional prohibition to mid-decade redistricting, nor has Congress acted to put one in place (as they certainly have the power to do; Article I, Section 4, from Kennedy's opinion: "The Times, Places and Manner of holding Elections for ... Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."). It is time that Congress pass such a law; such a provision is a key component of Rep. John Tanner's Fairness and Independence in Redistricting Act, which I have written of often (see the link to previous Redistricting Watch posts at the end).

Tanner issued a statement today following the ruling. He comments "I am disappointed that the Supreme Court is endorsing the Supreme Court is endorsing the idea that professional, partisan politicians can overhaul their state's Congressional map whenever they feel it will benefit them politically. This will lead to a free-for-all through which the party in power in any state capitol at any time can negatively impact the people's business in Washington." He added that partisan gerrymandering increases political polarization in D.C., "shrinking the political center in Washington" and called for the passage of "serious redistricting reform."

The immediate impact of this ruling for those of us who are concerned with redistricting reform is simple. We must continue our push for passage of Tanner's bill to govern mid-decade redistricting and remove partisan politicians from the district-drawing process. We must support non-partisan reform efforts at the state level, and we must make clear that we will not accept mid-decade partisan redrafting of districts in our own states.

The gerrymander lives; now lets get busy and kill it.

For my previous Redistricting Watch posts, see here.