Tak­ing on ger­ry­man­der­ing

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Par­ti­san ger­ry­man­der­ing — the draw­ing of leg­isla­tive dis­tricts to ben­e­fit one po­lit­i­cal party at the ex­pense of an­other — is a ven­er­a­ble fea­ture of Amer­i­can pol­i­tics. It’s also an in­sid­i­ous and anti-demo­cratic prac­tice.

Es­pe­cially with the ad­vent of so­phis­ti­cated com­puter pro­grams, dis­tricts can be de­signed so that a party can ex­er­cise in­flu­ence in a state leg­is­la­ture or con­gres­sional del­e­ga­tion ob­scenely out of pro­por­tion to its over­all sup­port — while sat­is­fy­ing the “one-per­son, one-vote” re­quire­ment that dis­tricts be roughly the same size.

For ex­am­ple, un­der a re­dis­trict­ing plan ap­proved by North Carolina’s Repub­li­can-con­trolled leg­is­la­ture, that state elected nine Repub­li­cans and four Democrats to the U.S. House in 2012 — even though 51 per­cent of the state’s vot­ers cast bal­lots for a Demo­crat.

An­other con­se­quence of ger­ry­man­der­ing is a lack of com­pe­ti­tion be­tween the par­ties on Elec­tion Day. Ac­cord­ing to the non­par­ti­san Cook Po­lit­i­cal Re­port, only 56 races for the U.S. House out of 435 con­tests this year are con­sid­ered com­pet­i­tive. It’s easy to game the out­come of elec­tions by cre­at­ing dis­tricts that are ei­ther “packed” with a sur­plus of vot­ers of one party or “cracked” so there aren’t enough mem­bers of that party to make a com­pet­i­tive elec­tion pos­si­ble.

Ei­ther way — to bor­row a phrase of­ten heard in this year’s pres­i­den­tial cam­paign — the sys­tem of con­gres­sional dis­trict­ing in too many states is rigged. But the fed­eral courts, which long have in­ter­vened in the draw­ing of district lines to guard against the abridg­ment of vot­ing rights on the ba­sis of race, have been skit­tish about tack­ling par­ti­san ger­ry­man­der­ing.

In 1986, the U.S. Supreme Court ruled par­ti­san ger­ry­man­der­ing could be chal­lenged as un­con­sti­tu­tional if it in­volved “in­ten­tional dis­crim­i­na­tion against an iden­ti­fi­able po­lit­i­cal group and an ac­tual dis­crim­i­na­tory ef­fect on that group.”

Yet in that case the court didn’t ac­tu­ally find such a vi­o­la­tion, and in 2004, four jus­tices, led by the late An­tonin Scalia, said the court should es­sen­tially stop look­ing. Scalia ar­gued the court should over­turn its 1986 de­ci­sion and ad­mit “no ju­di­cially dis­cernible and man­age­able stan­dards for ad­ju­di­cat­ing po­lit­i­cal ger­ry­man­der­ing claims have emerged.”

For­tu­nately, Scalia’s ex­pres­sion of fu­til­ity 12 years ago was not the last word. As par­ti­san ger­ry­man­der­ing con­tin­ues to marginal­ize vot­ers and par­a­lyze the po­lit­i­cal process, courts have been forced to look at the is­sue anew. Two cases demon­strate this prob­lem is not go­ing away.

One comes from North Carolina, where Repub­li­can leg­is­la­tors re­cently tweaked the map men­tioned above after a court held that it con­sti­tuted a racial ger­ry­man­der. But, like the pre­vi­ous ver­sion, the new map pro­vides for a lop­sided ad­van­tage for Repub­li­cans and has pro­voked claims of un­con­sti­tu­tional par­ti­san ger­ry­man­der­ing.

Mean­while, Repub­li­cans in Mary­land al­lege a con­gres­sional map adopted by the state’s Demo­cratic-con­trolled leg­is­la­ture in 2011 vi­o­lated their con­sti­tu­tional rights. The new map changed the bor­ders of one district tra­di­tion­ally rep­re­sented by a Repub­li­can so it no longer in­cluded 65,000 reg­is­tered Repub­li­can vot­ers but did in­clude 30,000 new Demo­cratic ones. In the 2012 elec­tion, the district was won by a Demo­crat, re­duc­ing the num­ber of Repub­li­cans in the state’s eight-mem­ber del­e­ga­tion from two to one. Last month, a three-judge fed­eral court ruled the case should go to trial.

It’s too soon to say that days of par­ti­san ger­ry­man­der­ing are num­bered. But it’s sig­nif­i­cant that the Supreme Court last year unan­i­mously re­jected a claim that the Mary­land suit couldn’t go for ward.

Also, while past ar­gu­ments against par­ti­san ger­ry­man­der­ing have em­pha­sized the Con­sti­tu­tion’s guar­an­tee of equal pro­tec­tion of the laws, op­po­nents of the Mary­land map are fo­cus­ing on the First Amend­ment’s free speech pro­tec­tions.

That ap­proach echoes Jus­tice An­thony M. Kennedy’s opin­ion in the 2004 case. When leg­is­la­tors move vot­ers from one district to an­other be­cause of the way they have voted in the past — and the way they are ex­pected to vote in the fu­ture — that cer­tainly looks like what is known as view­point dis­crim­i­na­tion.

If and when the high court re­vis­its par­ti­san ger­ry­man­der­ing, it will need to ad­dress an ob­jec­tion raised by Scalia in the 2004 case: that, un­like race, “po­lit­i­cal af­fil­i­a­tion is not an im­mutable char­ac­ter­is­tic, but may shift from one elec­tion to the next; and even within a given elec­tion, not all vot­ers fol­low the party line.”

That’s true, but if party loy­al­ties didn’t ex­ist and per­sist over time in ge­o­graph­i­cal ar­eas, ger­ry­man­der­ing wouldn’t be such a pop­u­lar tac­tic.

Ju­di­cial in­ter­ven­tion isn’t the only way to ad­dress par­ti­san ger­ry­man­der­ing. For in­stance, some states have taken the draw­ing of con­gres­sional dis­tricts out of the hands of state leg­is­la­tures and en­trusted them to ci­ti­zens’ com­mis­sions, an option the Supreme Court de­clared con­sti­tu­tional last year.

But, as in other ar­eas, the Supreme Court must be will­ing to step in where the other branches of govern­ment refuse to act.

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