Court Should Plunge Deeper Into Gerrymandering Thicket

A question central to the American political process was partly answered last week when the Supreme Court, for the first time, declared that political gerrymandering was justiciable--open to inquiry by the courts.

The decision might have created the opposite impression, since it upheld Indiana’s legislative districts that Democrats had contended were drawn by Republicans for partisan advantage. But the more far-reaching portent of the 6-3 ruling is the fact that partisan boundary manipulation is no longer immune to challenge on constitutional grounds. At the same time, Justice Byron R. White, writing for the majority, made it clear that aggrieved parties must meet a high threshold of proof of discrimination--”only when the electoral system is arranged in a manner that will consistently degrade” the rights of voters or groups.

The court apparently will reserve its scrutiny for serious maldistricting--”continued frustration of the will of a majority of the voters or denial to a minority of voters of a fair chance to influence the political process.”

The first test of these guidelines will likely be the Republican legal challenge to California’s congressional district lines that were drawn by the late Rep. Phil Burton--a case that has been on hold in federal court pending the Indiana decision. Most experts would agree that if the California gerrymandering does not meet the court’s “threshold” of invalidity, then none ever will.

Surprisingly, some newspaper opinion columns ordinarily highly supportive of voting rights have warned the courts to shun this “political thicket” and to leave politics to the politicians. The error here is the mistaken notion that the only people hurt by partisan gerrymandering are a handful of incumbent politicians or potential challengers. On the contrary, all voters are affected by gerrymandering. Political as well as racial groups deserve a fair opportunity to participate effectively in the political process. When most districts are designed to be overwhelmingly Democratic or Republican, the prospect of electoral change is minimized. This violates the democratic norm that representation should, over time, be responsive to shifts in the preferences of the electorate. At stake is a broader right than equal access of political parties--the right of citizens to have a meaningful voice when they cast their ballots and thus to have their views reflected in the legislature.

In the Supreme Court’s decision, three dissenting justices claimed that there are no clear-cut guidelines for the courts to determine partisan gerrymandering. Yet the same argument was voiced a quarter of a century ago when the malapportionment issue took the form of vastly unequal populations among districts. The court’s subsequent “one man, one vote” doctrine permitted judicial determination of representative equality on a case-by-case basis. Moreover, helpful guidelines have emerged from the comparable issue of racial gerrymandering, with the “totality of circumstances” approach applicable to disputes over partisan manipulation of boundaries.

Indicators of partisan gerrymandering that courts could scrutinize include districting arrangements that are far from being compact, that unnecessarily criss-cross town or county boundaries, disregard natural geographic features, systematically fail to respect communities of interest, dramatically constrict the likely range of competitive seats so as to lock in an existing partisan imbalance, and show clear evidence of haste and inadequate public input during drafting. Not all of these characteristics would necessarily be present in a given case of gerrymandering, but a careful judicial weighing of the “totality of circumstances” could resolve the more flagrant violations of “fair representation.”

Some people also claim that the idea of political fairness is too imprecise for judicial implementation. But courts need not define or seek an abstract goal of “fairness.” It is enough to examine concrete examples of “unfairness”--blatant boundary manipulation that threatens the equal voting/representation rights of citizens. But judicial involvement need not extend to more than the striking down of extreme instances of gerrymandering. It would then be up to the political branches to revise districts, following general guidelines set by the courts.

The question is not whether the Supreme Court should enter the redistricting “political thicket”--it has been there since the early 1960s. The question is whether the court should go beyond simply counting heads to redirect its focus on the basic goal of “fair and effective representation,” the initial justification for judicial involvement with reapportionment. Curing the ills of political gerrymandering cannot be left to the give-and-take of the political process in states where that process is far closer to monopoly than to free competition. That would be like asking the wolves to protect the sheep.