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May 28, 2004

Press Contact: Kirston Fortune, UT Law Communications, (512) 471.7330

Comment: Putting Fairness on the Map

The high court has a chance to ease flagrant partisan gerrymandering.

by Mitchell Berman
The Los Angeles Times, May 28, 2004
Reprinted with the author's permission

While the nation continues its efforts to export democracy abroad, the U.S. Supreme Court is engaged in a quiet, far-less-publicized debate here at home over partisan gerrymandering — the shaping of electoral districts for partisan ends — that will profoundly influence the state of American democracy for years to come.

Earlier this year, in Vieth vs. Jubelirer, the court considered a challenge to an extreme gerrymander in Pennsylvania in which the Republicans who control the state Legislature drew a new electoral map that gave their own party the edge in 12 out of 19 congressional seats and that most observers agreed was a clear case of partisan manipulation.

But last month, the court unexpectedly rejected the challenge, saying there was no clear, manageable "judicial standard" by which to judge the claim. Thus the Legislature's unfair plan was allowed to go forward.

Now there's a new case before the court that threatens to open the door to unprecedented political abuses. But this case — the Texas redistricting episode that received so much attention when the Democrats fled across the state border last year — also offers an opportunity: the chance to carve out just the kind of manageable judicial standard that the court says it has been looking for.

Partisan gerrymandering is as old as the nation. Since the earliest days of the United States, legislatures have redrawn states' congressional districts every 10 years to take into account population shifts and to add or subtract seats. And since legislatures are inherently political bodies, each party has long sought to draw the lines to its partisan advantage.

In recent decades, however, the incidence and extremism of partisan redistricting have escalated. Voting patterns have become more consistently partisan, enabling political mapmakers to better predict how voters will vote. And advances in computer technology and political databases allow cartographers to fine-tune district boundaries to maximize partisan advantage.

Both Democrats and Republicans have sought to manipulate the system by drawing "safe seats" for their own members. The result: fewer competitive elections.

Many observers expected the court to use last month's Vieth case to bring the situation under control. But that did not happen. Although all nine justices agreed that "excessive partisanship" in districting is unconstitutional, the court split over what to do about it. Four justices proposed creating new legal tests for what was acceptable and what was not. But four others predicted that federal courts could never craft standards that would be manageable, and argued that the judiciary should retreat from even trying.

That left one justice — Anthony Kennedy — in the middle. Although he voted to uphold the Pennsylvania gerrymander for want of a manageable standard, Kennedy explicitly left open hope that "if workable standards do emerge, courts should be prepared to order relief."

The Texas case, Jackson vs. Perry, offers just such an opportunity. Like Vieth, it presents a textbook example of partisan gerrymandering — one so egregious that the state itself admitted that maximizing electoral prospects for Republican candidates was "the single-minded purpose of the Texas Legislature." But the Texas reapportionment has a new characteristic that is potentially even more dangerous: It was adopted mid-decade to replace valid, court-approved district lines.

Redistricting had always been a once-in-a-decade affair — a necessary response to population changes revealed in the decennial census. But in 2002, Colorado Republicans shocked observers by abandoning this tradition, redrawing the state's congressional districts barely a year after new districts had been adopted. Although a state court invalidated that gambit, Texas — where Republicans had just taken control of both houses of the Legislature — followed suit last year. Republicans in Georgia and Ohio have made noises about doing the same; Democrats in California, Illinois and Oklahoma have as well.

This difference between the Texas and Pennsylvania gerrymanders serves up precisely what the Vieth case didn't: a judicially manageable standard. The court should declare that mid-decade redistricting is unconstitutional when adopted by a single-party-dominated legislature, unless narrowly tailored to achieve a compelling interest.

True, this test would address only a piece of the partisan gerrymandering problem, leaving unanswered what courts should do about partisan gerrymanders enacted during the ordinary decennial cycle.

But it is a critical piece nevertheless. Decennial gerrymanders are self-limiting because, over a decade, voters die, move, even change political views. The mere passage of time reduces its power. But by gerrymandering more frequently, in mid-decade, legislatures restack the deck.

The fight for democracy abroad begins at home. Jackson vs. Perry is the next battleground. Anyone who cares about democracy should hope that Justice Kennedy will have the courage of the convictions he expressed in Vieth — the courage to stop at least the most crass partisan abuses. To miss this opportunity would threaten to unleash a frenzy of biennial partisan gerrymandering that would further corrode American politics and render even more hollow our claim to model democracy for others.


Mitchell Berman is a professor of constitutional law at the University of Texas at Austin.