Q. Didn’t the Supreme Court recently decide to allow gerrymandering? Doesn’t it mean the incumbents can now redraw the political map to guarantee they remain in power?

Answer:

Yes, and probably.

In April of 2004 the U.S. Supreme Court rejected a challenge to Pennsylvania’s newly drawn congressional boundaries[1] brought by Democrats who claimed that Republicans created districts to maximize GOP wins and eliminate as many Democratic incumbents as possible.

Four of the five justices in the majority said that they would overturn a 1986 decision that held that the courts could decide whether a redistricting map was too politically partisan. These justices maintained that political redistricting was not subject to judicial review.

Redistricting has long been used by the party in power to create electoral districts that favor it retaining that power. The term “gerrymander” was coined in 1812, when Massachusetts Governor Elbridge Gerry endorsed an electoral district that looked like a salamander. Gerrymandering often leads to elongated, donut-shaped, or Rorschach test-like voting districts.

Racial gerrymandering was first used in the South to dilute black voting power after the Civil War. Black voters were “packed” into one district, or “cracked”(dispersed) so they were a small minority in all districts. In 1973, the Supreme Court ruled that legislative districts that systematically diluted the voting strength of minorities violated the 14th Amendment guarantee of equal protection.[2] In 1980 the Court modified that ruling by requiring proof of a racially discriminatory purpose to support a claim of minority vote dilution.[3] In 1982 the Voting Rights Act of 1965 was amended to prohibit minority vote dilution even without proof that it had a discriminatory purpose.[4]

The Voting Rights Act makes racial gerrymandering illegal but is silent on the matter of political gerrymandering. Political gerrymandering — drawing legislative lines to ensure one party’s success — is not usually illegal. But it can be contested in court. In 1962, the Supreme Court ruled that the judicial system has a role in ensuring that legislative redistricting does not violate the equal protection clause.[5] Two years later, the Court ruled that districts must be approximately equal in population — the “one person one vote” principle.[6]

The last time the Supreme Court ruled on a political gerrymandering case was in 1986, when it said that it is possible for a political gerrymander to be unconstitutional, but not unless one party was “essentially shut out of the political process.” The Court did not define a standard for unconstitutionality.[7] Since that time, no partisan gerrymander has been successfully challenged in the courts.

Gerrymandering has gone high tech. Some political experts worry that the increasing precision with which political maps can be drawn and the increasingly sophisticated approach by political strategists will make it more and more difficult to dislodge incumbents. Redistricting can now be done with computers and digitized maps of demographic data instead of colored pens and paper maps. The dominant party can identify with surprising accuracy and exactitude households and blocks that will vote its way. And today political parties are changing their strategies. Rather than maximizing the number of seats a party can win by creating a large number of districts where that party would win by a small voting margin, parties try to maximize the number of safe seats by creating districts with large majorities in favor of one party.

This session the Supreme Court heard two redistricting cases. One involved a Texas redistricting plan formulated by Republican Party after it took control of both state legislative chambers in 2002.[8] Redistricting had never before been done in a non-census year when there has not been federal reapportionment.[9] Twice the Democrats fled the state to prevent votes on the plan; a widely publicized maneuver that for weeks enriched Jay Leno and David Letterman’s opening monologues. Eventually the plan was passed. The Supreme Court affirmed without comment a lower court ruling that the redistricting plan can go ahead.[10]

The Pennsylvania case began when the state had to redistrict in 2002 because it lost two House seats as a result of the 2000 census. The Court upheld the state’s plan by a vote of 5 to 4. Four justices held that redistricting is a political matter that is always beyond the court’s jurisdiction, because “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged.” Justice Scalia argued, “Fairness is not a judicially manageable standard.”

The four dissenting justices said the court is obliged to step in when the lines on political maps are drawn with the sole purpose of giving one party an advantage over the other. In his dissent, Justice Stevens writes, “The concept of equal justice under law requires the state to govern impartially. Today’s plurality opinion would exempt governing officials from that duty…and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification.” Justice Kennedy was the swing vote. He agreed with the majority that correcting district boundaries drawn for partisan reasons “would commit federal and state courts to unprecedented intervention in the American political process.” But he left the door open to judicial intervention in cases of redistricting that might be unconstitutional.

The Court may hear other cases on political redistricting. For example, there are challenges in Georgia and Massachusetts where Democrats drew the post-census redistricting plan in their favor. But for the time being, there will likely be more intensely partisan battles over redistricting, and an acceleration of the trend toward noncompetitive districts.

Some worry that redistricting can lead to more partisan candidates and more rancorous and divisive politics. Candidates in safe districts do not have to compete for moderate voters. Instead the election is decided in the primary, when the dominant party chooses its candidate based on the votes of party activists. The result is often more partisan representatives who are less experienced and less inclined to collaborate and compromise than their predecessors.

Some people are looking for guidance from other countries for strategies to minimize the partisan nature of redistricting. In most nations politicians are not responsible for redistricting. That is the responsibility of independent commissions. In 2001, Iowa adopted the European practice of having civil servants draw new lines based on population changes but without reference to incumbents or regional voting patterns. Arizona and Washington have independent commissions that are responsible for redistricting. For more information about redistricting in your state, go to Common Cause.