| Fact & comment // STEVE FORBES
Plea to the high court: Know your limits.
“With all thy getting, get understanding”
In an obscenity case before the Supreme Court in 1964, Justice Potter Stewart famously and candidly declared that when it came to defining “hard-core pornography,” he wouldn’t make any more attempts “perhaps [because] I could never succeed in intelligibly doing so. But I know it when I see it . . . . ”
The Supreme Court should take Stewart’s words to heart when it hears Gill v. Whitford,a case about gerrymandering in Wisconsin.
On the surface, the idea of creating legislative districts that give a particular party an advantage would strike most people as unfair. But the challenge is in determining what is fair. The ready answer is proportional representation—if a party’s legislative candidates together win 40% of the popular vote statewide, shouldn’t that party get 40% of the seats? That is indeed the system in many European countries. But that has never been the case in the U.S., Britain or Canada. Here, if party A’s candidates each poll 49% of the vote in their respective races and each of their opponents gets 51%, party A gets nothing in the legislature.
In Wisconsin in 2010, Republicans won both legislative houses and the governorship and, with the recently completed census in hand, went about designing a new map for legislative districts. It’s no surprise that the lines were drawn in a way that would help the GOP. What these Republicans did has been going on since the creation of the republic. (The word “gerrymander” originated in 1812, when the party of Massachusetts governor Elbridge Gerry created a district that looked like a salamander.)
Wisconsin Democrats complain that the percentage of seats the GOP wins in legislative races exceeds the percentage of the total votes their candidates receive statewide. They say this is unconstitutional because it violates Democrats’ First Amendment right of association, as well as the equal protection clause of the Fourteenth Amendment—that the district lines punish certain voters because of their political affiliation.
The constitutional arguments are preposterous. Our basic law says absolutely nothing about proportional representation. Congressional and legislative representatives have always been decided by who wins the most votes. The Wisconsin government isn’t harassing Democrats who participate in the political process or forcibly preventing Democrats from voting.
The idea that politics won’t play a role in how politics is practiced is also preposterous. Even in states that have “nonpartisan” boards or commissions drawing the maps, the process ends up suffused with politics. Where a town is put can easily change the leanings of a district. Some advocates of the Wisconsin plaintiffs say that, indeed, some partisanship is inevitable but that what’s going on now is too extreme, especially with software that brings hitherto unobtainable precision into the drawing of partisan lines. Which prompts the big question: How much partisanship is too much?
Plaintiffs have already started what will be an endless array of “scientific metrics” that measure partisanship but which, in reality, are arbitrary. Their current favorite is the “efficiency gap,” which purports to measure “wasted votes.” If the efficiency gap exceeds 7% of the votes cast, then a red light flashes. But that 7% number was picked out of thin air.
The High Court would be foolish in the extreme to rule in favor of the Wisconsin plaintiffs and embroil itself in the messy, detailed business of determining legislative and congressional districts. This isn’t a task for unelected judges. The litigation would be endless, with dissatisfied parties and candidates filing suits. If voters feel that a redistricting has been unfair, they can pressure legislators or, in many states, push for a referendum to create a commission to try to draw relatively neutral boundaries.
But a majority of the Supremes may not be able to resist the temptation to play God instead of appreciating the wisdom of our founders, who concluded that most issues are best left to the normal give-and-take of everyday politics, untidy, unedifying and seemingly inefficient as the process may be. After all, despite more than two centuries of gerrymandering, American politics has been anything but static.
Our high court, imbibing the spirit of Potter Stewart, should practice a rare humility and leave messy enough alone.