Politically Uncorrected: Questions The Courts Need to Ask
Today it’s everywhere or often seems so.
Trump mania pervades news coverage while heated and often testy debates about health care, immigration, criminal justice and trade policy increasingly dominate the national conversation.
Turn on any news program and try to escape it. We are dominated by a growing national obsession with politics.
Nor are state governments immune to our growing national preoccupation with politics and political problems. As states struggle to find new revenues and balance annual budgets, they increasingly move into policy arenas like immigration and climate change previously monopolized by the federal government.
But one place political questions do not prevail – indeed according to legal doctrine cannot prevail – is when the courts consider the problem of reapportionment, the decennial process in which states draw the congressional and state legislative districts to conform to population shifts occurring over the past decade.
Decennial reapportionment has been the law of the land since a landmark Supreme Court case in 1964 (Reynolds v Sims) ruled that the Equal Protection Clause of the 14thamendment requires voting districts be as equal in population as possible.
Equal they may now be – but fair they are still not. The problem is “gerrymandering” – the ancient, insidious and so far insoluble practice in American politics of creating voting districts that protect incumbents and immunize the party in power from competitive elections. The result across the nation has been a conglomeration of weirdly shaped almost ghoulish in appearance congressional districts that defy geography in the service of partisan advantage.
Gerrymandering in America is a problem looking for a solution – and maybe there is one.
Last month, a concerned group of Pennsylvania voters in each of the state’s 18 congressional districts acted with the state’s League of Women Voters to find one. They filed a lawsuit in Commonwealth Court arguing that the last (2011) state congressional redistricting plan was unconstitutional.
The issue raised in the suit is whether the boundary lines drawn by a Republican controlled legislature and signed into law by a Republican governor violated the first amendment and the equal protection clause of the U.S. constitution.
In short, did the 2011 apportionment violate Reynolds v Sims (1964)? The appellants want the boundary lines of the 18 districts redrawn to remove partisan advantage before the next congressional election.
The lawsuit’s premise is both a logical extension of the reasoning in Reynolds, and a revolutionary interpretation of Reynolds. That is because the original Supreme Court addressed only equal representation of equal voters. It explicitly did not wander into so called “political questions,” such as unfair partisan advantage. The Pennsylvania lawsuit is asking for exactly that.
Some history helps here. Political gerrymandering is a reference to the infamously shaped salamander district drawn in 1812 by then Governor of Massachusetts, Elbridge Gerry.
Gerry named it, but Pennsylvania may have invented it.
Certainly, political gerrymandering has existed in Pennsylvania back to colonial times when an effort was made by some county political leaders to limit the power of Philadelphia. While in neighboring Virginia famed orator Patrick Henry apparently worked unsuccessfully to deny James Madison a seat in the first Congress in 1789.
If it begun here, could it end here? Pennsylvania’s history tilting at the gerrymander windmill doesn’t start with the current lawsuit. Back in 2004 the U.S. Supreme Court agreed to hear a Pennsylvania case, known as Vieth et al. v. Jubelirer. That case involved the 2001 gerrymander of Pennsylvania’s then 19 congressional districts, artfully drawn by a Republican controlled state legislature and signed into law by a Republican governor.
The important and surprising fact about the Vieth case was that the Supreme Court even agreed to hear it since it involved political gerrymandering – including drawing congressional lines to protect incumbents and giving one party a significant advantage.
In the past the court had never struck down a plan on the basis of partisan gerrymandering, arguing it was a “political question” not appropriate for courts to resolve. The court instead focused on reapportionment cases that concerned population differentials or the unconstitutional dilution of minority voters. And indeed when Vieth was finally decided in 2004, a divided Supreme Court ruled that the alleged gerrymandering could not be challenged because it involved a question that was not justiciable.
Thus the filing of the Pennsylvania lawsuit challenges this orthodoxy as does the case that the U.S. Supreme Court has agreed to hear involving a Wisconsin redistricting plan. The basic argument in both cases is that the congressional districts were drawn for blatantly partisan purposes. In effect, both cases are arguing that the courts should look at “political questions” that lurk behind the veil of modern reapportionment.
Both the Pennsylvania and Wisconsin cases essentially ask whether partisan gerrymandering violates the Equal Protection clause of the U. S. Constitution. To do that the justices need to wade into that sticky wicket of “political questions” they have been so loath to enter.
But if the courts take a good look at the grotesque, distorted and disjointed congressional districts across the country produced by past gerrymanders, those “political questions” might start to also look like some pretty good questions to ask.