The Right Coast
May 05, 2004
By Mike Rappaport
Recently, the Supreme Court decided Vieth v. Jubelirer, a lawsuit challenging political gerrymandering – the situation when the legislature draws district lines in order to benefit one political party. The Court split. Four members (Scalia, Rehnquist, Thomas, and O'Connor) held that the question was nonjusticiable – that the Constitution did not provide a judicial remedy for such gerrymanders. Justice Kennedy provided the fifth vote for denying relief, but on the alternative ground that such gerrymanders were problematic and might be justiciable if someone could just find a judicially manageable standard to govern them. But since no one had done so yet, no relief could be afforded. Finally, the four liberal dissenters argued that a judicially manageable standard was available, but then proposed three different approaches, ironically showing the difficulty of discovering a constitutional standard.
My take on the decision is that Scalia and company were correct as a matter of original meaning. Equal protection does not provide a judicially manageable standard (even assuming counterfactually that the Fourteenth Amendment governs voting), nor does the Guarantee Clause. Significantly, it appears that the Constitution was designed to allow Congress to correct this problem. Article 1, §4, of the Constitution left to the state legislatures the initial power to draw districts for federal elections, but permitted Congress to “make or alter” those districts if it wished. In the past, Congress has enacted legislation governing districting, including requiring “contiguity, compactness, and equality of population” in 1901 legislation that is no longer in effect.
In my view, political gerrymandering is a serious matter that should be restrained. It has at least two harmful effects. First, it allows for safe districts that have secure majorities for one political party, which promotes more extreme candidates than swing districts, where both parties are forced to move to the center to attract votes. Second, such safe districts also inhibit political competition, because the incumbents in safe districts do not face real competition from the other party.
While it is difficult for the Court to find a standard in the Constitution to govern the drawing of district lines, Congress could readily establish such a standard. In my view, something similar but more restrictive than the 1901 legislation makes sense. In particular, compactness – a measure used to distinguish between, for example, districts tightly packed around a central point and thin districts which snake through a state – would do an enormous amount to prevent gerrymandering. A system whereby the state would be required to draw districts which had the maximum degree of compactness (and of course equality of population) would be beneficial. While it might have other costs, such as splitting areas which had traditionally been part of the same district, it would be worth the cost to constrain gerrymandering.
Of course, the problem is that Congress does not appear willing to pass such legislation today. In part the problem is that the politically dominant party, at any particular time, does not favor this arrangement. Perhaps one solution is for the current Congress to provide that these anti-gerrymandering standards should only apply many years in the future – say 2010 – which would make it harder to predict which party the standards would benefit or harm. Yet, I am not holding my breath. One can therefore understand, if not condone, the attempt of some members of the Court to invent a constitutional doctrine to address political gerrymandering. Of course, the fact that none of the proposed tests resemble the I one favor, and that it would be virtually impossible to legislatively override the test that the Supreme Court does adopt, makes the possibility of a judicially imposed standard very scary.
Update: Rick Hasen, the election law expert over at Election Law blog, has an interesting op ed on the Vieth case. He also discusses the possibility of states with initiatives bypassing the legislature and having the voters enact rules to govern districting.