In delivering the plurality opinion in Vieth v. Jubelirer (2004) Justice Antonin Scalia commented on “the incompatibility of severe partisan gerrymanders with democratic principles” adding “we do not disagree with that judgment.” Although all nine justices agreed with this proposition a plurality of four felt that the key issue was “whether it is for the courts to say when a violation occurred, and to design a remedy.” The plurality opinion met with four dissents that not only argued that partisan gerrymandering was unconstitutional, but that courts should and could provide such a remedy.
Justice Anthony Kennedy added a fifth vote to the plurality bloc in finding no gerrymandering had occurred in the case then before the Court, but leaned towards the dissenters writing, “that such a standard has not emerged in this case should not be taken to prove that none will emerge in the future.” Gerrymandering seems clearly to violate Madison’s stricture in Federalist 37 that republican liberty “should be kept in dependence on the people” or to paraphrase numerous commentators, that the voters should select their representatives, rather than the representatives selecting their voters.”
For much of our history the court avoided getting drawn into the gerrymandering debate viewing it in the words of Justice Frankfurter as a “political thicket.” That wall began to crack as the court was compelled to deal with the issue of racial discrimination. In Baker v. Carr (1962) the court ruled that districting was a justiciable matter under the equal protection clause of the 14th Amendment. In Gray v. Sanders (1963) and several other cases the following year (Wesberry v. Sanders and Reynolds v. Sims) the Court confirmed the “one person one vote” principle as a bedrock of our republican form of government. In Davis v. Bandemer (1986) the Court ruled that violations of this principle that were for the purpose of political rather than racial discrimination was justiciable, but struggled to find a judicial standard to apply to these cases. The four judges in the plurality in Vieth wanted to overturn the justiciability of political gerrymandering but were unable to do so by the five justices who felt that a judicial standard could be found. The Vieth case was also important in that both Justices Kennedy and John Paul Stevens felt that First Amendment and not just equal protection issues were involved.
The pernicious effect of partisan gerrymandering on a government founded on the principle of popular sovereignty expressed through free and fair elections is beyond debate. Although it is true that sometimes people with like-minded views cluster geographically so that so called “packing” occurs naturally and while it is theoretically possible for 51 percent of one party’s adherents to be evenly distributed throughout a state to elect 100 percent of the Congressional delegation, severe partisan gerrymandering is not really that hard to detect. Across the entire 435 Congressional Districts it is unlikely that 1.4 million fewer Republican voters would send the current 234 to 201 Republican majority to the 113th Congress. With the current districts it has been estimated that the Democrats would have to win by 7 percent nationally to achieve a House majority. In the 2008 election in Speaker John Boehner’s native Ohio President Obama carried the state with 51.5 percent of the vote and Democratic candidates of the House won 52.9 percent of the vote resulting in the Democrats winning 55.6 percent of the House seats. In 2012, after the Republicans got control of the state government and redistricted, President Obama carried the state again with 50.6 percent of the vote, Democratic House candidates got 46.9 percent of the statewide vote but the Republicans were able to elect fully 75 percent of the Ohio delegation to Congress.
In spite of the fact that state legislatures are given a role to play in the manner of electing House members under Article I, Section 4, the exercise of that responsibility cannot violate either equal protection provisions or due process requirements that government actions be for a legitimate purpose. Justice Kennedy pointed out that if a state legislature “enacted language to burden a party’s right to fair and effective representation we would strike it down” and therefore must be ready to act when actions operate to advance that same end as an unwritten objective. Justice Stevens elaborated on that principle by writing in Vieth that “the concept of equal justice under law requires the state to govern impartially.” It is suggested here that the court adopt a presumption against future cases involving redistricting plans that were under the control of a single party by reason of conflict of interest given the possible impact on their future political careers.
The First Congress adopted a recusal rule in its very first week that “No member shall vote on any question or event of which he is immediately and particularly interested” a principle that can be expanded to voting on a party’s partisan redistricting plan. As Justice Scalia stated in Nevada Commission on Ethics v. Carrigan (2011), “the legislative power thus committed… belongs to the people.” Impartiality on the basic issue of the fairness of elections from which all else springs should be subject to some independent review such as a divided bicameral legislature, a bipartisan conference committee or an independent redistricting commission. Congressional districts are not even mentioned in the Constitution and throughout history some states have employed other means to elect House members, so this unmentioned feature cannot be used to defeat inviolate provisions such as equal protection and due process which are explicit.
Another approach can be found in building upon the First Amendment discussion coming out of Vieth. That amendment protects “the right of the people peacefully to assemble, and to petition the government for a redress of grievances” In fact, it was the ability of “lawmakers to manipulate the opinions that are expressed and heard in those districts” of which the League of Women Voters complained in a recent suit against a partisan redistricting by Democrats in Illinois. Given the capabilities of information technology and advanced mapping software it should be able for the voters to “peacefully assemble” themselves into Congressional Districts. Either the state legislature or the voters themselves could establish a hierarchy of preferences to be used in a program among the long- accepted criteria for districting: observance of established political jurisdictions, compactness and contiguity. Sophisticated cartographers would be able to then present options in an election where the voters could indicate geographic preferences for other contiguous subunits (e.g. townships) with which they would like to assemble. The information system could then take these voter preferences and run them through the hierarchy to produce districts similar in population that were decided upon by the voters themselves.
The powerlessness claimed by the four justices in the Vieth plurality is inexplicable in an age of supercomputers and statistical analysis of metadata. Those most hell-bent in practicing partisan redistricting are not shy in blatantly using this technology in ways that scream out for judicial review and, in some cases, remedy. Sam Wang, a physicist and neuroscientist at Princeton, has written that “we need to adopt a statistically robust judicial standard for partisan gerrymandering.” Dr. Wang cited North Carolina as an example in which the Democrats received 51 percent of the votes statewide in the most recent Congressional election but garnered only four out of 13 seats – a result that Wang was only able to replicate in less than 1 percent of statistical simulations performed by computer. At a minimum, courts should be able to draw upon independent statistical experts to determine whether, through techniques such as a massive number of random simulations, the results were outside the pale. In such cases, the court itself need not impose a remedy, but rather return the issue to the state to resolve in an acceptably impartial manner or have the court imposes a redistricting plan (as happened in Texas in 2000). This threat would create a strong incentive for the states to get it right the first time. If a court found it necessary to impose a solution it could utilize the same technology to generate random districts utilizing established political units (e.g. cities, counties), compactness and contiguity. In fact, over time states would do well do adopt this approach themselves. Given the state of technology the court ought not ignore cases of clear statistical aberration, nor be afraid of using those techniques in finding a remedy.
David W. Wise, a businessman who resides in Annapolis, Maryland, publishes frequent commentaries on public policy issues. He holds a graduate degree from The Fletcher School of Law and Diplomacy at Tufts University. His e-mail address is [email protected]
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