Overshadowed by the December 10 decision upholding the McCain-Feingold campaign finance law was an important oral argument that morning over whether the Supreme Court should arrogate to itself vast new powers to redraw every congressional district in the nation. The goal would be to clean up the incumbent-entrenching, polarizing, gerrymandered mess that redistricting has become, or at least to strike down partisan gerrymanders so extreme as to mock majority rule.
The lawyers were too polite to tell the justices—who had just finished clucking at great length about the ickiness of campaign money—that the ickiness of gerrymandering is a mess mostly of their own making. The Court's well-intended but clumsy interventions in the redistricting process over the past 40 years have destroyed the standards that had previously kept politically motivated manipulations of election-district lines within tolerable bounds.
So the real question in Vieth v. Jubelirer is whether the way to mitigate the harm done to our political system by the Court's previous usurpations of legislative power is for the Court to usurp more power still.
The Vieth case is a lawsuit by Democrats to overturn the strangely shaped districts that Pennsylvania's Republican-controlled Legislature drew after the 2000 census, which cost the state two House seats. The new maps, overtly designed for partisan advantage, forced two pairs of incumbent House Democrats to run against each other, put a fifth in a heavily Republican district, and ended up delivering 12 of the state's 19 House seats to Republicans in 2002, up from 11 out of 21. This despite the nearly even split in voting loyalties illustrated by Al Gore's narrow win in Pennsylvania in 2000.
Republican legislative majorities in Florida, Michigan, and Ohio engineered similar partisan gerrymanders after the 2000 census. The result is that Republicans hold 51 House seats to Democrats' 26 in these four states, even though their voters in 2000 split almost evenly between Gore and George W. Bush. Democrats have collected a smaller number of seats in their own post-2000 gerrymanders. And this year, Republican-controlled legislatures in Texas and Colorado have taken the once-a-decade redistricting wars to a new level, by redrawing the new district lines that had been put in place after the 2000 census.
Republicans in Texas rammed through in October—after Democratic legislators had twice fled the state to prevent a quorum—a county-splitting gerrymander designed to give Republicans as many as 22 of the state's 32 House seats next year, up from the current 15, and to help Majority Leader Tom DeLay cement Republican control of the House of Representatives. The new districts must first survive legal challenges. The Colorado Supreme Court struck down a somewhat similar mid-decade Republican gerrymander in that state on December 1, saying that the state constitution allows only one redistricting per decade.
Bipartisan gerrymanders, in which incumbents in both parties get together to guarantee themselves safe seats, may be even more destructive to democratic governance. This practice has made it ever more difficult for changes in public opinion to affect the branch that the Framers designed to be most responsive to such changes. Only four members of the House—less than 1 percent—lost their seats in 2002 to challengers from the other party. The number of House races deemed competitive has plunged from about 150 in 1992 to an expected 35 next year. So the voters have no real say in the general elections in more than 90 percent of all House districts, because the results have been rigged in advance.
This has produced a House bitterly divided between the most liberal of Democrats and the most conservative of Republicans. They are unrepresentative of the nation's largely centrist population because they need fear challenges only in primaries, which are dominated by their respective parties' fiercest loyalists. Moderate centrists have almost disappeared from the House, and been replaced by partisans disinclined to make pragmatic compromises. Never before has "gerrymandering"—the word was inspired by Massachusetts Gov. Elbridge Gerry's approval of a salamander-shaped district to help his party in 1811—been taken to such extremes.
What brought us to this pass? The most familiar explanation is that modern computer technology allows line-drawers to use surgical precision in distributing likely Republican and Democratic voters among election districts in exactly the numbers desired. The more important explanation may be that the Supreme Court did it. Beginning with the "one-person, one-vote" rulings of the early 1960s, the justices have repeatedly intervened in the redistricting process, with the unintended but foreseeable consequence of destroying all of the rules, customs, and traditions that had restrained partisan and bipartisan gerrymanders alike.
The justices have had their reasons. The Warren Court was right to end the outrageous malapportionment of legislative districts that had left urban voters in many states with a fraction of the voting power of rural voters. But the Court went about it the wrong way. Instead of citing the most relevant constitutional provision—the clause requiring "a republican form of government" in each state—the Court pretended against all evidence that the Fourteenth Amendment's equal-protection clause had been designed to mandate precise equality in election-district populations. This absolutist approach, while easy for courts to administer, has led to such perverse extremes as the 1983 decision (in Karcher v. Daggett) striking down a New Jersey redistricting plan because of a difference of less than 1 percent between the most-populous and least-populous districts.
This "uncompromising emphasis on numerical equality" has served to "encourage and legitimate even the most outrageously partisan gerrymandering"—as Justice Lewis F. Powell Jr. predicted in his dissent—by requiring abandonment of traditional districting standards: city and county lines, compactness, contiguity, and natural and historical boundaries. Those had been the only brakes on incumbents' power to gerrymander district lines for personal and partisan advantage.
The justices made matters worse in 1986, in Thornburg v. Gingles, with their questionable interpretation of the 1982 Voting Rights Act Amendments. It virtually required states to draw as many strangely shaped districts as possible to maximize the number of safe seats for black and Hispanic candidates. That mandate destroyed what was left of the traditional districting standards. It also fostered an unholy alliance that teamed black and Hispanic Democrats who wanted safe seats for themselves with Republicans who were glad to help. The Republicans knew that packing minority voters into a few districts would enable Republicans to score net gains, by creating more suburban districts with conservative, white majorities. The results: a few more liberal black and Hispanic members; a lot more conservative Republicans; and a lot fewer moderate Democrats. This helps explain the 1994 landslide that gave Republicans control of the House.
But by that time, a more conservative Supreme Court majority had developed a distaste for the race-based gerrymandering that the Court itself had required. Unwilling to reconsider Gingles, Justice Sandra Day O'Connor, the swing vote, and her four more-conservative colleagues decided instead to hold racial gerrymanders unconstitutional, in a succession of decisions between 1993 and 1997. But in 2001, in yet another switch, O'Connor voted with the Court's liberals in Easley v. Cromartie to uphold a gerrymander designed to protect an incumbent black Democrat, Rep. Melvin Watt of North Carolina. The rationale: The Legislature's main motive had been to create not a safe black district, but a safe Democratic district.
Thus has politically motivated gerrymandering become a constitutional virtue. But not for long, if Pennsylvania's Democrats win Vieth v. Jubelirer. "The House of Representatives is supposed to be the mirror of the people," their lawyer, Paul Smith, told the justices. He argued that when gerrymandering can give Republicans (or Democrats) "two-thirds of the seats with less than half of the vote," the Court must enforce "an outer boundary" to protect majority rule.
A good point. But Smith didn't seem to be finding many takers. He tried to come up with rules for deciding how much gerrymandering is too much. But it was clear that this would be an utterly subjective choice. "You're pulling this out of a hat, so to speak," said Chief Justice William H. Rehnquist. "The Constitution doesn't intimate anything like what you're talking about." Nobody mentioned all the rabbits that the justices have pulled out of hats.
"Maybe the way to go is to just say, 'Hands off,' " said O'Connor. Maybe someone should have thought of that a long time ago. The solution is probably for states to emulate Iowa, where legislators vote up or down on maps drawn by civil servants who are instructed to ignore partisan voting patterns—not for the justices to come blundering once again to the rescue.