Drawing legislative and congressional districts to favor one party over another makes a mockery of the constitutional guarantee of "one person, one vote." On Tuesday the U.S. Supreme Court will be asked to end that inherently undemocratic practice.
If the court fails to rise to the challenge, dominant parties in many state capitals will continue to unfairly inflate their influence and marginalize the opposition.
Gerrymandering is almost as old as the republic; it derives its name from Elbridge Gerry, a 19th century Massachusetts governor who approved a redistricting that included a misshaped state Senate district that resembled a salamander. But with the aid of increasingly ingenious computer software, mapmakers can effectively ensure that the majority party wields control in a state legislature or U.S. House delegation wildly out of proportion to its support from voters statewide.
Overwhelmingly it is the Republican Party that has benefited from partisan gerrymandering (so called to distinguish it from racial gerrymandering, which manipulates district lines to dilute racial minorities' political power in violation of the Voting Rights Act). The Brennan Center for Justice, for example, has estimated that "aggressive gerrymanders" have given Republicans 17 more seats in Congress than they would have won had districts been drawn in a nonpartisan way.
But Democrats also have resorted to the practice when they've had the opportunity. For example, Maryland's former Democratic Gov. Martin O'Malley has acknowledged that Democrats redrew a congressional district long represented by a Republican with an eye toward replacing him with one of their own.
The case before the court concerns Wisconsin Assembly districts drawn by the Republican-controlled Legislature after the 2010 census. In the first election conducted using the new lines, Republicans won 60 out of 99 seats in the Assembly with just 48.6% of the statewide vote. In the next election, they won 63 of the 99 seats with just 52% of the vote.
A divided three-judge federal court found that the map "systematically dilutes the voting strength of Democratic voters statewide." The Supreme Court should reach the same conclusion.
In 1986 the Supreme Court said that partisan gerrymandering could violate the 14th Amendment's equal protection clause if it intentionally and effectively discriminated against an identifiable political group. But the court in that case didn't find such a violation. and it has never agreed on a clear standard for invalidating partisan gerrymanders.
If that is to change, the justices must decide on such a standard and how lower courts will apply it. The lower court in the Wisconsin case held that the Constitution is violated if new districts are "intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation," "has that effect" and "cannot be justified on other, legitimate legislative grounds."
The lower court grounded its ruling in both the 14th Amendment's equal protection clause and the 1st Amendment. The latter rationale might have special appeal to Justice Anthony M. Kennedy, who is expected to be the swing vote in the case and who suggested in 2004 that gerrymandering might penalize citizens "because of their participation in the electoral process, their voting history, their association with a political party or their expression of political views."
Some of the justices will probably ask why the court should get involved in this issue at all. In 2004, the late Justice Antonin Scalia and three colleagues argued that the court should overturn its 1986 ruling and admit that no "manageable standards" for deciding political gerrymandering claims have emerged. In other words, leave the drawing of district lines to the politicians.
That's also what critics said in the 1960s when the Supreme Court issued the landmark rulings that ultimately established the principle that districts must be drawn on the basis of one person, one vote. In one of those rulings, a dissenting justice warned that the court was trespassing on an "essentially political process" and that lower courts faced with questions about redistricting would have to deal with a "mathematical quagmire."
But the courts have managed to enforce both the one-persion, one-vote rule and the more complex requirements of the Voting Rights Act that prohibit district lines that dilute the votes of racial minorities. Admittedly, policing partisan gerrymandering may prove more challenging than policing racial gerrymandering. As Scalia noted in 2004, party affiliation, unlike race, "is not an immutable characteristic." But party loyalties do exist and persist over time in geographical areas. Otherwise gerrymandering wouldn't be such a popular — and effective — practice.
When the states don't rein in that practice on their own — as California, for example, has done by entrusting redistricting to a commission — the courts must be able to step in.