| 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.

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