Time to end ger­ry­man­der­ing

Los Angeles Times - - OPINION - Er­ry­man­der­ing

G— the prac­tice of draw­ing district lines in a way that gives one po­lit­i­cal party dis­pro­por­tion­ate power in Congress or a state leg­is­la­ture — is a time-dis­hon­ored prac­tice in Amer­i­can pol­i­tics. The term dates from the early 19th cen­tury. But with the ad­vent of so­phis­ti­cated com­puter pro­grams, it has be­come in­creas­ingly easy for a party that con­trols a state leg­is­la­ture to ex­ag­ger­ate its in­flu­ence not only in that body but in its del­e­ga­tion in the U.S. House of Rep­re­sen­ta­tives (un­less a state fol­lows Cal­i­for­nia’s lead and en­trusts re­dis­trict­ing to a cit­i­zens’ com­mis­sion or some other group of non­politi­cians).

In 1986, the Supreme Court said that par­ti­san ger­ry­man­der­ing could be chal­lenged as a vi­o­la­tion of the 14th Amend­ment’s equal pro­tec­tion clause if it in­volved “in­ten­tional dis­crim­i­na­tion against an iden­ti­fi­able po­lit­i­cal group and an ac­tual dis­crim­i­na­tory ef­fect on that group.” But the court in that case didn’t find such a vi­o­la­tion and has never agreed on a clear stan­dard for in­val­i­dat­ing par­ti­san ger­ry­man­ders. That has left those in power — some­times Repub­li­cans and some­times Democrats — free to re­draw lines to their own ad­van­tage.

That may be chang­ing, and it is about time. On Mon­day, the jus­tices agreed to hear a con­sti­tu­tional chal­lenge to a map for the Wisconsin Assem­bly drawn by Repub­li­cans in 2011. A di­vided three-judge fed­eral court had found that the map “sys­tem­at­i­cally di­lutes the vot­ing strength of Demo­cratic vot­ers statewide.” For ex­am­ple, the court noted, in 2014, the Repub­li­can Party re­ceived only 52% of the two-party statewide vote share yet won 63% of the Assem­bly seats.

The chal­lenge for the Supreme Court now is to ar­tic­u­late a stan­dard for de­ter­min­ing when “pol­i­tics as usual” is actually a con­sti­tu­tional vi­o­la­tion — and which part of the Con­sti­tu­tion is be­ing vi­o­lated.

In a 2004 case, Jus­tice An­thony Kennedy sug­gested that in­stead of fo­cus­ing on the equal pro­tec­tion clause in con­sid­er­ing ger­ry­man­der­ing, courts should per­haps stress “the 1st Amend­ment in­ter­est of not bur­den­ing or pe­nal­iz­ing cit­i­zens be­cause of their par­tic­i­pa­tion in the elec­toral process, their vot­ing his­tory, their as­so­ci­a­tion with a po­lit­i­cal party, or their ex­pres­sion of po­lit­i­cal views.”

In its opin­ion strik­ing down the Wisconsin map, the lower court in­voked the 1st Amend­ment and the 14th Amend­ment’s equal pro­tec­tion for­mula in defin­ing an un­con­sti­tu­tional par­ti­san ger­ry­man­der. It said the con­sti­tu­tion has been vi­o­lated if the new dis­tricts are “in­tended to 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 Supreme Court may de­vise a bet­ter test. But the day of reck­on­ing for par­ti­san ger­ry­man­der­ing is long past due.

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