Ques­tions the courts need to ask about ger­ry­man­der­ing

The Community Connection - - OPINION -

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

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