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Dead Constitution See other Dead Constitution Articles Title: Gerrymanders and Judges "Used with permission from http://OpinionJournal.com, a web site from Dow Jones & Company, Inc." Gerrymanders are as old as our republic, as Antonin Scalia pointed out in a 2004 Supreme Court decision on redistricting in Pennsylvania. "There were allegations," Justice Scalia wrote, "that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress." Litigating to overturn gerrymanders is a decidedly more modern activity, although as Justice Scalia also pointed out in Vieth v. Jubelirer, the courts have rarely overturned electoral maps drawn by partisan legislatures. But people keep trying, and this week the Supreme Court agreed to hear four cases in March challenging the 2003 redistricting of Texas' Congressional map. The High Court's decision has raised hopes in some circles that the Supremes might finally enunciate a standard for how far is too far in rigging electoral district lines. The Justices--and especially Anthony Kennedy, the swing vote in the Pennsylvania case--can be hard to handicap. But in almost two decades of litigation the Court has yet to find a case that justified intervention. In Vieth, moreover, four of the Justices in the 5-4 majority declared themselves ready to throw in the towel and escape from ever hearing another partisan redistricting case. There are good reasons for this. Redistricting is a partisan affair almost everywhere. Iowa has set up a commission of retired judges to draw district lines in a neutral fashion, but legislators do the job in nearly every other state. The application of politics to redistricting is, as Justice Scalia put it, "normal and lawful," and the Constitution expressly provides for a Congressional--but not judicial--override of state legislatures' maps. Asking judges to weigh these maps thrusts them into the heart of partisan politics, which is not a good place for judges to be. Take Texas, which until recently had its Congressional district lines written by Democrats. In the 2000 elections, Republican House candidates received 51.6% of the votes cast, but the resulting delegation was only 43.3% Republican. In 2002, after the Census resulting in a gain of two seats and a mild redistricting, 57.8% of votes cast in House races were for Republicans (three Democrats ran unopposed, resulting in no votes being cast in those races), but Republicans won only 47% of the seats. In the 2002 elections, however, Republicans swept into power in the state legislature and with the help of Tom DeLay decided to "fix" the discrepancy, resulting in a new map. The result was that, by winning 58.6% of the votes cast in the 2004 House races, the Republicans took 65.6% of the seats. Democrats claim that's unfair, but it's no more unfair than the underrepresentation that Republicans suffered for decades. That's why redistricting is a political matter. To get around the Justices' reluctance to wade into these questions, several of the Texas plaintiffs have tried to color their argument with racial overtones. Unfortunately for their argument, the number of black Congressmen from Texas rose after 2004 (to three of 32) and the number of Hispanic Congressmen (six) stayed steady. Which brings us to the much-ballyhooed Justice Department staff memo on the Texas redistricting. Much has been made about the fact that political appointees supposedly overrode a staff recommendation that the Texas map be thrown out by Justice on racial-discrimination grounds. But according to the Washington Post, which broke the story thanks to Justice Department leaks, the memo focused on two districts--those of Democrat Martin Frost and Republican Henry Bonilla. The argument was this: Mr. Frost, who is white, enjoyed substantial support from black voters. So carving up his district diminished the right of those black voters to choose their preferred candidate. Mr. Bonilla's southwest Texas district was made more Republican in the 2003 redistricting. But his support among Hispanic voters was on the wane, said the Justice staffers, so strengthening a Hispanic Republican was also a no-no on racial grounds. To put it another way, because black voters pull the lever for Democrats by an enormous margin, almost any redistricting that tries to reduce Democratic representation in a state's delegation will likely harm a candidate who enjoys "substantial support" from black voters. The logic of the staff memo is that any redistricting that harms a Democratic candidate is racist. No wonder senior officials rejected its reasoning. All of this ignores what is the real bipartisan scandal of modern redistricting--which is the lack of political competition. In 2004 in Texas, there were two races out of 32 in which the margin of victory was 10% or less. In California, thanks to a Democratic gerrymander, only two of 53 contests were decided with less than 60% of the vote. Nationwide, 90% or more of all House seats are now considered "safe." In short, the politicians are now selecting their voters, not vice versa. This is a problem worth addressing for the health of our democracy. We'd like to see more states try some variation of the Iowa system, which has kept that state's Congressional contests reasonably competitive. But the Constitution tells us that this is a question for states and Congress to decide, not the courts.
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#1. To: 82Marine89 (#0)
Well doesnt that bring us right back to the issue being politicized?
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