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The Supreme Court Deals a Blow to Democracy

Summarizing last week’s Supreme Court ruling in the Texas redistricting case, Loyola Law School’s Rick Hasen recalled Chevy Chase, from Saturday Night Live’s"Weekend Update":"This just in. Generalissimo Francisco Franco is still dead." Three decades later, Franco is still dead, and in light of the decision in this case, attempts to get the Supreme Court to limit the scope of partisan gerrymandering are likely to remain dead as well. It’s hard to imagine a more clear-cut case of partisan gerrymandering than the Texas one appearing anytime soon.

The decision was as unsurprising as it was unfortunate. It seems to me that the single biggest problem we currently have in federal elections is House district gerrymandering—which created the extraordinary situation in 2004 of more tightly matched Senate elections than genuinely close contests for the House. Yet the plaintiffs in the Texas case pursued an odd strategy, diluting their primary emphasis on partisan gerrymandering. They also made a civil rights claim—on which they scored a narrow victory, though one unlikely to have much of an effect. And they raised the bizarre issue that the courts should reject out-of-cycle redistricting—hardly an uncommon practice over the last four decades and clearly a constitutional one. As a result, they gave a Court that needed no excuse not to rule in their favor plenty of excuses to come down as it did.

Though we’ve grown familiar with judicial involvement in the redistricting process, it’s worth remembering that this pattern is scarcely four decades old. Until the Warren Court, the judiciary steered clear of redistricting, which it viewed as a political question. This changed with two key Warren Court decisions—Baker v. Carr (1962), which established the one-man/one-vote principle, and Wesberry v. Sanders (1964), which applied that principle to the drawing of House districts.

It’s hard to remember just how controversial these decisions were at the time. Justice Brennan’s powerful opinion in Baker generated an equally forceful dissent from Felix Frankfurter, who fumed that the majority employed"destructively novel judicial power" to capriciously" cast aside" an"impressive body" of precedents that"reflected the equally uniform course of our political history regarding the relationship between population and legislative representation." He predicted that the decision"may well impair the Court's position as the ultimate organ of ‘the supreme Law of the Land,’" since"the Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements."

As Frankfurter cautioned, the two decisions did undermine the Court’s standing, at least temporarily, in Congress. In 1964, the House passed a measure introduced by William Tuck (D-Virginia), a Byrd Machine stalwart, to strip from the federal courts jurisdiction over state and federal redistricting questions. The companion Senate measure, co-sponsored by Majority Leader Mike Mansfield (D-Montana) and Minority Leader Everett Dirksen (R-Illinois), seemed certain to pass. Desperate Senate liberals, led by Pennsylvania’s Joe Clark and Illinois’ Paul Douglas, attempted to get a plank into the 1964 Democratic platform committing the party to opposing the Tuck bill—a scheme upon which LBJ, fearful of dividing the party, did not look kindly. (Keep in mind, if you listen to this clip, that Douglas was a professor of economics before winning election to the Senate.)

Johnson’s preferred strategy of filibustering the Tuck bill worked; the overwhelming Democratic majorities returned after the 1964 elections put to rest any chance of Congress limiting the Warren Court’s authority. Meanwhile, in the post-Baker world, out-of-cycle redistrictings were common (a fact conveniently forgotten by the Texas plaintiffs). To take one example of many, in every election cycle but one between 1960 and 1974, either New York or New Jersey (and in some cases both states) redrew their House district lines.

Redistricting debates in the 1980s and 1990s largely revolved around the question of whether the Voting Rights Act required creation of so-called"majority-minority" districts. In several Southern states, an unusual alliance of African-Americans and Republicans argued they did; Democrats tended to say no. Both the Democrats and the Republicans were acting for partisan reasons (Republicans wanted blacks packed together in a few districts rather than spread out over many districts; Democrats wanted the reverse), but the courts ignored the partisan issue almost entirely. For an effect of majority/minority districts, consider the case of Georgia. In 1992, Georgia had 10 districts, represented by 8 white Democrats, 1 black Democrat (John Lewis), and 1 Republican (Newt Gingrich). By 1995, Georgia had 11 districts—8 represented by (white) Republicans, three represented by black Democrats. This constitutional question eventually was decided in Shaw v. Reno, which held that geographic compactness couldn’t be ignored.

Though unusual before 2002, DeLay-like partisan redistrictings were not unprecedented. (The late Phil Burton’s masterful California map, drawn for the 1982 elections and basically held in place ever since, is one reason why the Democrats’ control of the California delegation has remain unchallenged, even before the pre-Prop 14 state realignment.) But technological changes—especially the role of GIS in mapmaking—allowed for the drawing of far more precise lines in 2002. Districts in Ohio, Pennsylvania, and Michigan were blatant Republican gerrymanders, and the Pennsylvania case triggered a lawsuit.

In Vieth v. Jubelirer, four Justices (Scalia, Thomas, Rehnquist, and O’Connor) held against the Pennsylvania Democrats, concluding that"political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist." Kennedy sided with the four in calling for dismissal of the Pennsylvania case, but he did concede that, perhaps, this was an issue that the Court could consider in the future. He left no clear guidelines, however, on when partisan gerrymandering would become so grotesque that it would require Court intervention. The four liberal justices all sided with the Pennsylvania Democrats.

There’s been pretty extensive analysis of the Texas case, which generated a complicated array of opinions, at various election law and Supreme Court blogs (see, for example, here, here, and here). Let me add two other items. First, since it’s hard to imagine a gerrymander as blatant as the Texas one, I think we have to assume that Kennedy’s bar is one that’s impossible to meet, and this is simply an issue with which the courts won’t involve themselves anytime soon.

Second, I fear it’s unlikely we’ll see action at the state level either. Right now, only two states (Iowa and Arizona) draw their district lines through non-partisan commissions rather than through the state legislature. In 2005, good-government activists in Ohio got a referendum on the ballot to add Ohio to the list. Circumstances seemed propitious: the state Republican Party, which had overseen the drawing of the lines in 2001, was in the midst of probably the worst scandal in its history; the state’s chief elections officer, Republican Kenneth Blackwell, had acted in a blatantly partisan manner in 2004. Yet Ohio voters overwhelmingly rejected the referendum.

Just as I can’t see a worse case of partisan redistricting than Texas in 2004, I can’t see a better combination of circumstances to adopt the non-partisan commission solution than Ohio in 2005. The fact that both options ended with upholding of the status quo doesn’t bode well for our political health.