It’s that time of the decade again: time for legislative and congressional redistricting by state lawmakers or, in a few states, specially created commissions. The Supreme Court struck a major blow for political democracy a half century ago by establishing the “one person, one vote” rule for electoral districts. In the past decade, however, the court has failed to finish the job by leaving the time-dishonored practice of partisan gerrymandering effectively immune to judicial oversight.
The Warren Court started the reapportionment revolution with its 1962 decision, Baker v. Carr, despite the warning from dissenting justice Felix Frankfurter against venturing into a “political thicket.” After retirement, Chief Justice Earl Warren said he considered the reapportionment decisions the most important of his 15-year tenure outranking even Brown v. Board of Education, the landmark school desegregation case.
The Supreme Court entered the political thicket in the 1960s because the political process was broken. Rural-dominated state legislatures had failed to redraw districts for decades as population shifted to cities and suburbs. My home state of Tennessee had not reapportioned since 1901, despite a mandate in the state constitution to do so. As a result, a minority of voters about 40 percent were able to elect super-majorities in both the state Senate and state House of Representatives.
Urban officials and residents sued, claiming a violation of the Equal Protection Clause. The lower court dismissed the suit, citing the Supreme Court’s earlier decision in a similar Illinois malapportionment case, Colegrove v. Green (1946), that federal courts had no jurisdiction over such claims.
In Baker v. Carr, the Court said that federal courts could exercise jurisdiction over malapportionment cases even if they presented a “political question.” The ruling sent the case back to a lower court, which forced the Tennessee legislature to redraw districts to give urban voters their constitutionally entitled due. By the end of the decade, state legislatures throughout the country had similarly been forced to redraw legislative and congressional districts to comply with the “one person, one vote” requirement that the Court established in its later cases.
Two decades later, the Court similarly opened the federal courthouse door to constitutional challenges to partisan gerrymandering, the practice of drawing district lines to help one’s party or hurt the other. Indiana Democrats went to federal court alleging that the Republican-controlled legislature had drawn districts in 1981 in a deliberate effort to disenfranchise Democratic voters. The proof: under the GOP-drawn plan, Democratic candidates won 51.9 percent of the vote in the 1982 election, but only 43 out of 100 seats in the Indiana House.
In Davis v. Bandemer, the Court in 1986 said that federal courts could hear such claims despite the warning from Justice Sandra Day O’Connor that the ruling would invite federal litigation by the losing party in every reapportionment fight. On the merits, the Indiana Democrats lost their fight. But Justice Byron White’s opinion for seven justices established a standard for future cases. “Unconstitutional discrimination occurs,” White wrote, “only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole.”
Twice within the past decade, the Court has been asked to strike down partisan congressional gerrymanders fashioned by Republican-controlled legislatures, first in Pennsylvania and then in Texas. In both cases, GOP lawmakers had used recognized tricks to minimize Democrats’ chances at the polls: pairing incumbent Democrats in the same district; “packing” Democratic voters into some districts so their votes would be wasted; or “cracking” Democratic districts so that Democrats would be spread out and outvoted.
In both cases, Republicans won lopsided majorities in the House delegation in the next election: a 12-7 GOP edge in Pennsylvania in 2002; a 21-11 Republican advantage in Texas in 2004. But both times the Court found nothing unconstitutional in the overall line-drawing. In the Pennsylvania case, Vieth v. Jubilerer (2003), four conservative justices wanted to overrule Davis v. Bandemer altogether and bar gerrymandering challenges. Justice Anthony M. Kennedy refused to go that far, but could not come up with a standard for such suits. Nor could the four dissenting liberals agree on a single test. Three years later, Kennedy led a pivotal group of three justices in rejecting Texas Democrats’ efforts to fashion a standard for gerrymandering cases (League of United Latin American Citizens v. Perry, 2006).
With no Supreme Court standard, partisan gerrymandering is all but certain to proceed apace in the current redistricting cycle. And Kennedy’s hesitancy appears likely to steer the Court’s course in any subsequent challenges. Tellingly, Kennedy had no such difficulty in fashioning a rule against racial gerrymanders. Kennedy spoke for the Court in Miller v. Johnson (1995) in holding that a district map was unconstitutional if race was “the predominant factor” in the design. Evidence of lawmakers’ intent could be inferred, Kennedy said, from a district’s departure from “traditional” principles, including “compactness” and “contiguity.”
A workable standard to judge gerrymandering cases is not beyond the Supreme Court’s ability if the justices only had the will. With the Court on the sidelines, however, redistricting fights will again be waged according to the law of the political jungle and the constitutional goal of fair representation shortchanged for another decade.