About 10 years ago, the justices of the Supreme Court took a good, hard look at the way politicians bend, tweak and manipulate electoral boundaries in order to protect themselves and punish their enemies — and threw in the towel.
The Constitution, Justice Antonin Scalia wrote for a plurality in Vieth v. Jubelirer , does not provide “a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting.”
In other words, politics is politics. It’s the court’s duty to decide what the law is, Scalia said, but sometimes the answer is that it is none of the court’s business.
Scalia acknowledged that the Supreme Court had previously ruled otherwise. But “18 years of essentially pointless litigation” had convinced Scalia and others on the court that it was impossible to come up with a test to decide when partisan gerrymandering amounted to a constitutional violation.
The political parties have been running through that green light ever since.
But a judge in Tallahassee has blown the whistle, and thrown Florida politics into turmoil. Judge Terry Lewis found that two of the state’s 27 congressional districts were unconstitutional and wants a new congressional redistricting plan drawn in time for November’s election.
Though the Supreme Court seemed to throw its hands up a decade ago, the ruling left states free to act on their own. And Florida voters in 2010 wrote a prohibition on partisan gerrymandering into the state constitution, which is what Lewis ruled the state’s Republican leaders violated with their plan.
Lewis, whose previous judicial foray into politics involved overseeing the state’s 2000 presidential vote recount at the heart of Bush v. Gore, did not mince words.
A “group of Republican political consultants or operatives did in fact conspire to manipulate and influence the redistricting process,” Lewis wrote in his July 10 ruling.
“They made a mockery of the Legislature’s proclaimed transparent and open process of redistricting by doing all of this in the shadow of that process, utilizing the access it gave them to the decision makers, but going to great lengths to conceal from the public their plan and their participation in it.”
It was indicative of modern redistricting plans, Lewis said, where gerrymandering allows representatives to pick their constituents, rather than the other way around.
“To many citizens, this process is of mild interest, but to the political parties it is a high stakes proposition, a zero sum game in which one party wins and the other loses — for years to come,” he wrote.
Lewis singled out two of the districts as being unconstitutional — one held by Democratic Rep. Corrine Brown and the other by Republican Rep. Daniel Webster. A look at the map shows why redrawing those two will affect many others.
Brown’s district stretches 150 miles through 10 counties, from Jacksonville to Orlando; by comparison, the Lewis and Clark Expedition looks like a straight shot. District lines shift west to pick up Democrats in the university city of Gainesville and at one point, as the judge pointed out in his opinion, it “narrows to the width of Highway 17.”
Eventually, it bumps into Webster’s district, which has an “odd-shaped appendage that wraps around and under” Brown’s district. All of this, he said, was to give more Democrats to Brown and make the surrounding districts more hospitable to Republicans.
Though Florida has backed President Obama in the past two presidential elections, Republicans hold 17 of the state’s 27 congressional districts.
That doesn’t make Florida unusual, said Justin Levitt, a professor at Loyola Law School in Los Angeles, who operates a Web site devoted to redistricting issues. Wherever one party controls both the legislature and governor’s office, partisan gerrymandering abounds.
Maryland is a good example on the Democratic side, Levitt said. But it just so happens that because of the Republicans gains in the 2010 elections, he said, Democrats had sole control of the process in only six states where 44 congressional districts were at stake. The GOP: 18 states and 210 districts.
There is a racial component to all of this.
Although Lewis said the evidence did not support the claim, Republicans leaders in Florida said Brown’s meandering district lines were necessary to meet the requirements of the Voting Rights Act, which forbids attempts to dilute minority voting rights. Brown is an African American, and the district has a majority black voting age population.
Since most minorities overwhelmingly vote Democratic, when are attempts to preserve such districts subterfuge for partisan gerrymandering?
That brings us back to the Supreme Court. As Levitt notes, there were actually five justices on the court a decade ago to find that political gerrymandering does violate the federal Constitution, at least in theory.
Justice Anthony M. Kennedy voted with Scalia in throwing out that challenge to Pennsylvania’s redistricting, but said he was not drawing an absolute line. “The arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander,” he wrote, prompting Scalia to say label the concurrence a “never-say-never” argument.
This fall, the court has another chance.
It will hear a challenge from Alabama in which Democrats say Republicans in charge packed black Democrats into legislative districts at greater rates than necessary, in order to create safer Republican seats.
They claim that hurts African Americans by decreasing their chances to build coalitions in the legislature that would allow them real power. An appeals court ruled Republicans did not overuse race in drawing the lines.
Four of the nine justices in the Pennsylvania case 10 years ago are gone. The new cases, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, will be a new gerrymandering test for the reconstituted court.