The court should steer away from the pol­i­tics of ger­ry­man­der­ing

The Buffalo News - - OPINION - Wash­ing­ton Post Writ­ers Group

WASH­ING­TON – If an ad­jec­tive cre­ates a re­dun­dancy, does pre­ced­ing it with two other ad­jec­tives give the Supreme Court a rea­son to ven­ture where it has never gone be­fore? Come Tues­day, the court will hear oral ar­gu­ments urg­ing it to ref­eree ger­ry­man­der­ing in the draw­ing of con­gres­sional dis­tricts. The jus­tices should, like Ulysses, lis­ten to this siren song but bind them­selves from obey­ing it.

The ar­gu­ments will con­cern two cases: one from Mary­land, where Repub­li­cans are ag­grieved, an­other from North Carolina, where Democrats are un­happy. The prac­tice the court will con­sider is (ad­jec­tive one) “par­ti­san ger­ry­man­der­ing.” This mod­i­fier, how­ever, does not mod­ify; there is no other kind of ger­ry­man­der­ing.

Tues­day’s is­sue is whether the court should at­tempt some­thing for which it has nei­ther an ap­ti­tude nor any con­sti­tu­tional war­rant – con­coct­ing cri­te­ria for de­cid­ing when (ad­jec­tive two) ex­ces­sive par­ti­san ger­ry­man­der­ing be­comes (ad­jec­tive three) un­con­sti­tu­tional.

Ger­ry­man­der­ing is gen­er­ally as sur­rep­ti­tious as a brass band and is, al­ways and ev­ery­where, as po­lit­i­cal as lemon­ade is le­mony. It is the draw­ing of dis­trict lines by fac­tion A for the pur­pose of dis­ad­van­tag­ing fac­tion B. This prac­tice is older than the repub­lic: Penn­syl­va­ni­ans and North Carolini­ans were en­gag­ing in it in the first half of the 18th cen­tury, about a cen­tury be­fore it ac­quired its name. (In 1812, Mas­sachusetts Demo­cratic-Repub­li­cans, serv­ing Gov. El­bridge Gerry, drew a dis­trict shaped like a sala­man­der.)

Un­til 1962, the court stayed away from the in­her­ently po­lit­i­cal process of the draw­ing of dis­trict lines by leg­is­la­tures or­ga­nized along par­ti­san lines be­cause the Con­sti­tu­tion is un­am­bigu­ous: “The times, places and man­ner of hold­ing elec­tions for se­na­tors and rep­re­sen­ta­tives, shall be pre­scribed in each state by the leg­is­la­ture thereof.” There are enough open-tex­tured terms in the Con­sti­tu­tion (“es­tab­lish­ment” of re­li­gion, “un­rea­son­able” searches, “cruel” pun­ish­ments, etc.) to res­cue the Supreme Court from en­nui. The Elec­tions Clause just quoted con­tains no such terms. (Al­though four years ago five mis­guided jus­tices said “leg­is­la­ture” can mean a com­mis­sion vested with re­dis­trict­ing power taken away by ref­er­en­dum from a state leg­is­la­ture.)

Fur­ther­more, the po­lit­i­cal re­al­ists who framed the Con­sti­tu­tion, and who un­der­stood the per­va­sive­ness of par­ti­san­ship, added the fol­low­ing to the Elec­tions Clause quoted above: Congress may “at any time by law make or al­ter such reg­u­la­tions” as the states might write re­gard­ing con­gres­sional elec­tions. So, the Con­sti­tu­tion is ex­plicit: Congress, not the ju­di­ciary, is the fed­eral rem­edy for al­leged de­fects in the draw­ing of con­gres­sional dis­tricts. The po­lit­i­cal branches of the state and fed­eral gov­ern­ments are as­signed to deal with the in­her­ently value-laden pol­i­tics of draw­ing dis­trict lines.

In 1872, 92 years be­fore the court found a con­sti­tu­tional re­quire­ment (equal pro­tec­tion of the laws) for “one per­son, one vote,” Congress had said that dis­tricts must con­tain “as nearly as prac­ti­ca­ble an equal num­ber of in­hab­i­tants.” This stip­u­la­tion was strictly en­forced af­ter 1964, when the court enun­ci­ated the sim­ple and neu­tral prin­ci­ple of nu­mer­i­cally equal dis­tricts.

There can, how­ever, be noth­ing sim­ple or neu­tral about what op­po­nents of ger­ry­man­der­ing want to in­vei­gle the court into try­ing to de­vise. These in­clude cri­te­ria for mea­sur­ing un­con­sti­tu­tional ex­cesses in the com­mon prac­tices of “crack­ing” (dis­pers­ing one party’s vot­ers across dis­tricts dom­i­nated by the other party) and “pack­ing” (one party con­cen­trat­ing the other party’s vot­ers into su­per­ma­jori­ties in a few dis­tricts). And the po­lit­i­cal science pro­fes­so­ri­ate stands ready to ea­gerly tu­tor the court about “wasted votes” re­sult­ing from “ef­fi­ciency gaps.”

To­day, peo­ple who are un­happy about North Carolina’s ger­ry­man­der­ing ar­gue (as a lower court did) that “the Con­sti­tu­tion does not au­tho­rize state re­dis­trict­ing bod­ies to en­gage in ... par­ti­san ger­ry­man­der­ing.” (Em­pha­sis added.) Now, there is a per­verse doc­trine: Ev­ery­thing is for­bid­den that the Con­sti­tu­tion does not ex­plic­itly au­tho­rize.

Those who are ea­ger to sink the ju­di­ciary waist-deep into the pol­i­tics of pol­i­tics re­sort to blun­der­buss ar­gu­ments. For ex­am­ple, they say they have suf­fered jus­ti­cia­ble in­jury be­cause ger­ry­man­der­ing “di­lutes” their votes and in­fringes their First Amend­ment rights – even though every­one ev­ery­where re­mains free to as­so­ciate with his or her party of choice, and cam­paign and vote for any can­di­date.

The Con­sti­tu­tion is silent re­gard­ing lim­its on state leg­is­la­tures’ par­ti­san re­dis­trict­ing prac­tices and is ex­plicit re­gard­ing Congress’ ex­clu­sive power to mod­ify these prac­tices. If the court nev­er­the­less as­signs a por­tion of this power to it­self, its condign pun­ish­ment, in­flicted af­ter each de­cen­nial cen­sus, will be avalanches of lit­i­ga­tion aris­ing from par­ti­san un­hap­pi­ness about states’ re­dis­trict­ing plans. And no mat­ter how the court de­cides each case, its rep­u­ta­tion as a non­po­lit­i­cal in­sti­tu­tion will be steadily tar­nished.

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