Gerrymandering - No Big Deal?

The silence in response to George Will's column on gerrymandering is deafening. That could be because he comes across as an angry old "get off my lawn" guy, angrily shaking his cane at pretty much everybody he can identify. It could be because he spends too much time dissecting a Supreme Court decision, something that seems to make pretty much everybody's eyes glaze over, rather than putting the issues into clear terms. It could be because he focuses unduly, and perhaps obsessively, upon the racial elements of gerrymandering while ignoring its larger effect on the electoral process - compare his relatively even keel when discussing the Supreme Court's review of redistricting in Texas.

But I suspect that the actual reason is that most people don't care about gerrymandering.

Gerrymandering

David Broder has an interesting piece on gerrymandering and its effect on voter turnout.

In 2002 and 2006, the most recent off-year elections, about nine out of 10 congressional districts were won by more than 10 percentage points -- a clear sign that the game had been rigged when the lines were drawn in the state legislatures. In the first of those years, only eight incumbents lost; in the second, only 21.

As scholars have pointed out, the scarcity of real competition in nearly all districts has many consequences -- all of them bad. It makes legislators less responsive to public opinion, since they are in effect safe from challenge in November. It shifts the competition from the general election to the primary, where candidates of more extreme views can hope to attract support from passionately ideological voters and exploit the low turnouts typical of those primaries.

Gerrymandered, one-party districts tend to send highly partisan representatives to the House or the legislature, contributing to the gridlock in government that is so distasteful to voters.

I've written on this subject before. I would welcome reform.

Unfortunately, Broder dilutes his piece by opening with a silly attack on Barack Obama.

When Barack Obama decided last week to throw off the constraints on campaign spending that go with the acceptance of public financing, he was rightly criticized for rigging the system in his favor.

It's "rigging the system" to say, "I'll pay my own way instead of taking public money?" How so? Obama was rightly criticized, but not for rigging the system. The valid criticism is that he retreated from his prior commitment to public financing, and his promise to work with his opponent to stay within that system.

Did somebody attempt to "rig the system" (I would probably say "game the system", and perhaps "break campaign finance laws") in relation to public financing, using a commitment to public financing in order to get on a state primary ballot and to get loans for his campaign, then flip-flop on his entire record of "campaign finance reform", breaking his word, and declining public money? Absolutely. But that person was John McCain.

Death By Inches

A couple of months ago in Vieth v Jubelirer, the Supreme Court chose not to revisit precedents which permit the extraordinary gerrymandering which has led to the overwhelming majority of Congressional seats being "safe", or for one political party to carry a majority of a state's Congressional seats even when the majority of the state's voters supported the other party. Four Justices (Scalia, Thomas, Rehnquist and O'Connor) wanted to upset precedent and declare gerrymandering to be a nonjusticiable "political question":

Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard [for review of gerrymandering claims] promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.

The precedent was saved by the reticence of Justice Kennedy, who refused to accept the majority's opinion of nonjusticiability:

Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative. That is, the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context.

It could also be noted that there are other contexts where the Supreme Court has had great difficulty articulating a workable standard for review of difficult questions (e.g., with the First Amendment's Establishment Clause) - but has nonetheless attempted to live up to its constitutional obligations by asserting and refining various standards and tests.

This week, three of the Justices who wrote the majority opinion for the Vieth decision, Rehnquist, Scalia and Thomas, dissented to the Supreme Court's refusal to take a Colorado redistricting case, and were seemingly frustrated that they could not overturn a Colorado Supreme Court decision which interpreted Colorado's state constitution.

The court ordered Davidson to employ the judicially created plan through the 2010 elections. While purporting to decide the issues presented exclusively on state-law grounds, the court made an express and necessary interpretation of the term “Legislature” in the Federal Elections Clause in concluding that “[n]othing in state or federal law contradicts this limitation.”

The majority presumably did not find compelling the argument that a passing mention that there was no state or federal precedent on an interpretation of a particular term ("legislature") transformed the interpretation of the state's constitution to a proper subject for federal review.

While there is more technical validity to the hairsplitting than the New York Times suggests, today's editorial does get to the true politics at play in both decisions.

What is troubling, however, is a dissent by Chief Justice William Rehnquist and two of his colleagues that argues for diving into the conflict. Given these justices' eagerness to defer to the states in other matters, the dissent smacks of partisan politics and raises new concerns about the court's neutrality. ... By departing from his deeply held belief in state autonomy to side with the Republican Party in a redistricting case, Chief Justice Rehnquist has once again invited the public to question this court's motives.

When the same Justices prevent a state recount on the principle of "Equal Protection" - a clause the same justices had pretty much written out of the Constitution in any other context - and at the same time express that the opinion cannot be used as precedent, attempt to remove federal oversight of gerrymandering, and advocate the reinterpretation of decisions made under a state constitution - a position again seemingly in conflict with their long-standing positions on federalism - it becomes more than fair to question if this pattern truly reflects an evolution of their legal thinking (albeit an evolution limited to the subject of federal elections), or if it in fact reflects a desire to interfere with and impede the exercise of democracy as intended by the Founding Fathers.