On Partisan Gerrymandering, Time's Up?

      Politicians have been making mischief out of legislative or congressional district maps for more than two centuries, ever since the early 19th century Massachusetts governor Elbridge Gerry unwittingly lent his name to the disreputable practice. But only now, two decades into the 21st century, has a federal court found, for the first time ever, an instance of partisan gerrymandering so blatantly political as to violate the Constitution, for that reason and no other.

      The Supreme Court first said that partisan gerrymandering might be unconstitutional as such in an inconclusive decision three decades ago, Davis v. Bandemere (1986). The justices and lower courts have struggled ever since with trying to find a manageable standard to define when political line drawing goes too far. The federal court that struck down North Carolina's congressional redistricting plan last week [Jan. 10] resolved that conundrum by boldly declaring it constitutionally unacceptable to draw lines to advantage one party or disadvantage another.

      The three-judge court's unanimous decision in Common Cause v. Rochco lifted the hopes of good-government groups that courts would finally a way to tame the beast of gerrymandering. Those hopes fell just one day later, however, with the decision by a fractured three-judge court in Agre v. Wolf [Jan. 11] to reject a similar challenge to congressional redistricting in Pennsylvania. The two cases have parallel facts: in both, Republican-controlled legislatures drew congressional districts with the undisguised intent — and the eventual effect — of imbalancing the states' congressional delegation in the GOP's favor.

      The dueling decisions underscore the Supreme Court's critical role, with two other cases already under review this term, in deciding whether courts can and should tell politicians that time's up for partisan gerrymandering. The two cases, Gill v. Whitford and Benisek v. Lamone, show that both major parties play the  game when they can. Wisconsin's Republican-controlled legislature drew legislative maps in 2011 to help the GOP win a lopsided majority in the state assembly, while Maryland's Democratic-majority legislature drew congressional district lines to leave Republicans with only one of the state's eight seats in the U.S. House.

      The legal challenge brought by the good-government groups Common Cause and League of Women Voters along with named North Carolina voters was aided by Republicans' candor in explaining their motivation in drawing new congressional district lines. Thomas Hofeller, the redistricting consultant hired by the North Carolina Republicans, candidly testified that he drew the lines "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”

      Of the two decisions last week, Judge James Wynn's 191-page opinion in the North Carolina case is the more carefully reasoned and more carefully documented. North Carolina Republicans predictably denounced Wynn as an activist Democrat, but Wynn was appointed to his position on the Fourth U.S. Circuit Court of Appeals by President Obama with bipartisan support from the state's two senators, Democrat Kay Hagen and Republican Richard Burr. He had previously served 26 years as a Navy lawyer and 10 years on North Carolina appellate courts.

      Wynn deftly answered Justice Anthony M. Kennedy's pivotal opinion in an earlier decision, Vieth v. Jubelirer (2004), where four conservative justices voted to bar political gerrymandering challenges altogether. Kennedy joined in the 5-4 decision to reject the challenge to Pennsylvania's congressional redistricting, but left the door open to future cases while all but begging for "clear, manageable and politically neutral standards" to apply to partisan gerrymandering.

      In Wynn's analysis, no "constitutionally cognizable interest" is served by district lines that are drawn for partisan reasons and durably produce the intended partisan effect. On that basis, he concluded, "a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an 'acceptable' level of partisan gerrymandering from 'excessive' partisan gerrymandering."

      Wynn's opinion was unanimous for the most part, joined by two district court judges from North Carolina: William Britt, appointed by President Jimmy Carter, and William Osteen, appointed by President George W. Bush. Wynn concluded that North Carolina's redistricting violated voters' equal protection rights and political rights under the First Amendment and also went beyond the state legislature's authority under the clause in the U.S. Constitution giving states authority to "regulate" congressional elections. In a partial dissent, Osteen disagreed only on the First Amendment claim, which he said would bar any consideration of political affiliation in redistricting.

      The ruling in the Pennsylvania case was written by Judge D. Brooks Smith, who was appointed to the federal district court in Pittsburgh by President Ronald Reagan and  elevated to the Third U.S. Circuit Court of Appeals by the second president Bush. In his 73-page opinion, Smith insisted on the need for the still absent manageable standard for judging gerrymandering cases and instead relegated any complaints about the practice to Congress or state legislatures.

      Smith's opinion might have held water 60 years ago, but not since the Supreme Court opened the door to reapportionment cases with its initial decision in Baker v. Carr (1962). The court came up with a manageable standard for those cases: "one person, one vote," with only minimal population variations between districts. In the same way, the Court over the past 25 years has settled on a less precise rule for use of race in drawing district lines: some but not too much.

      Neither of the other two judges joined Smith's opinion. Judge Patty Shwartz, an Obama appointee to the Third Circuit, concurred in rejecting the challenge only on the ground that the voters lacked standing to challenge the overall statewide map. Judge Michael Baylson, a Republican-appointed district court judge from Philadelphia, wrote a 148-page dissent that would have rejected the Pennsylvania map as an unconstitutional gerrymander based on evidence and legal grounds parallel to those given in Wynn's opinion in the North Carolina case.

      Baylson opened his dissent with a plaintive cry. Gerrymandering, he wrote, "is a wrong in search of a remedy." Political reform is not impossible: several states have moved toward independent commissions to draw legislative and congressional districts. But the United States inherited from the English common law the fundamental principle that for every wrong, there must be a remedy. The Supreme Court can provide a remedy and, because it can, it must. Gerrymandering: your time is up.