Questions the courts need to ask about gerrymandering

Politics! Today it’s everywhere or often seems so.

Trump mania pervades news coverage while heated and often testy debates about health care, immigration, criminal justice and trade policy increasingly dominate the national conversation.

But one place political questions do not prevail — indeed according to legal doctrine cannot prevail — is when the courts consider the problem of reapportionment, the decennial process in which states draw the congressional and state legislative districts to conform to population shifts occurring over the past decade.

Decennial reapportionment has been the law of the land since a landmark Supreme Court case in 1964 (Reynolds v Sims) ruled that the Equal Protection Clause of the 14th amendment requires voting districts be as equal in population as possible.

Equal they may now be — but fair they are still not. The problem is “gerrymandering” — the ancient, insidious and so far insoluble practice in American politics of creating voting districts that protect incumbents and immunize the party in power from competitive elections.

The result across the nation has been a conglomeration of weirdly shaped almost ghoulish in appearance congressional districts that defy geography in the service of partisan advantage.

Gerrymandering in America is a problem looking for a solution — and maybe there is one.

Last month, a concerned group of Pennsylvania voters in each of the state’s 18 congressional districts acted with the state’s League of Women Voters to find one.

They filed a lawsuit in Commonwealth Court arguing that the last (2011) state congressional redistricting plan was unconstitutional.

The issue raised in the suit is whether the boundary lines drawn by a Republican controlled legislature and signed into law by a Republican governor violated the first amendment and the equal protection clause of the U.S. constitution.

Some history helps here. Political gerrymandering is a reference to the infamously shaped salamander district drawn in 1812 by then Governor of Massachusetts, Elbridge Gerry.

Gerry named it, but Pennsylvania may have invented it.

Certainly, political gerrymandering has existed in Pennsylvania back to colonial times when an effort was made by some county political leaders to limit the power of Philadelphia.

If it begun here, could it end here? Pennsylvania’s history tilting at the gerrymander windmill doesn’t start with the current lawsuit. Back in 2004 the U.S. Supreme Court agreed to hear a Pennsylvania case, known as Vieth et al. v. Jubelirer.

When Vieth was finally decided in 2004, a divided Supreme Court ruled that the alleged gerrymandering could not be challenged because it involved a question that was not justiciable.

Thus the filing of the Pennsylvania lawsuit challenges this orthodoxy as does the case that the U.S. Supreme Court has agreed to hear involving a Wisconsin redistricting plan.

Both the Pennsylvania and Wisconsin cases essentially ask whether partisan gerrymandering violates the Equal Protection clause of the U. S. Constitution.

To do that the justices need to wade into that sticky wicket of “political questions” they have been so loath to enter.

But if the courts take a good look at the grotesque, distorted and disjointed congressional districts across the country produced by past gerrymanders, those “political questions” might start to also look like some pretty good questions to ask.

G. Terry Madonna is professor of public affairs at Franklin & Marshall College, and Michael Young is a former professor of politics and public affairs at Penn State University and managing partner of Michael Young Strategic Research.

Madonna and Young can be reached, respectively, at terry. madonna@fandm.edu and drmikelyoung@comcast.net