Salamander in the Morass

The drawing of legislative districts has been a touchy subject in American politics at least since 1812, when opponents of a Massachusetts redistricting plan said one district was so contorted that it looked like a salamander. The governor of Massachusetts, a signer of the Declaration of Independence, achieved immortality when his foes sneeringly appended his name to their description of the new legislative lines. And thus Elbridge Gerry gave his name to the hated word gerrymander.

Since then the party in power in legislatures throughout the country has consistently sought to maintain its advantage by skillful redistricting. This week the U.S. Supreme Court ruled that such shenanigans can, but do not normally, violate the Constitution. The justices acted correctly and wisely, for holding otherwise would have led them into a political thicket from which there is no escape.

Traditionally the court has viewed legislative districting as a “political question” that must be left to the political branches of government. In 1946, when the justices first ruled on this issue, they refused to overturn congressional districts drawn by the Illinois Legislature even though the population disparity between the districts was enormous. It’s up to the Legislature, the court said. What’s more, a political remedy exists. If the people don’t like this districting plan, they can vote out the legislators and replace them with others who will do it differently.

That remained the law until 1962, when the court ruled that state legislative districts in Tennessee, which had not been redrawn in four decades and which greatly favored rural areas over urban areas, were unconstitutional. The justices said that they were getting into this reluctantly, and only because the political remedy wouldn’t work. The rural districts, which had small populations, would never give up their advantage no matter how the heavily populated urban districts voted.

Two years later the court said the standard that must be applied is “one man, one vote.” Legislative districts must have roughly equal populations--a standard that is easy to apply, implement and oversee.

But this still enabled parties in power to try to maintain their advantage through gerrymandering. In 1981, Indiana Republicans, who controlled the Legislature, successfully drew the lines to minimize Democratic representation. The Democrats sued. But they have now been rebuffed.

The justices said that if a worse case were brought to their attention they would think about it again. If a system was so rigged that the political remedy was unavailable to the voters, the court would strike it down. “Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or groups of voters’ influence on the political process as a whole,” Justice Byron R. White wrote for a divided court.

But control of legislatures regularly changes hands despite gerrymandering. As long as that’s the case, the court will not and should not step in. California Republicans, who are in the same position as Indiana’s Democrats, have a long row to hoe to get the court to intervene.

Had the court ruled otherwise, it would have opened the door to unlimited litigation by every imaginable political interest claiming that it was underrepresented in the legislature and urging judges to order a new districting plan.

Remember, political parties do not represent the sum and substance of all political interests. Women, who make up half the population, could say that they are underrepresented. Old people could make the same claim. So could farmers. So could environmentalists. So could everyone. And, unlike the “one-man, one-vote” test, none of these are susceptible to easy administration.

Legislative districting is inherently political. There is no plan that is absolutely fair to everyone. It is best for courts to avoid this morass and leave it to the political process.