[ The very justices who made the actual votes of the American people in the 2000 presdential election irrelevant are those who today sided with Republicans to disenfranchise voters in Pennsylvania (Rehnquist, O’Connor, Scalia, Thomas, Kennedy).
With a Republican governor and Legislature, the new [Congressional district] boundaries were set so that Democratic incumbents were placed in the same district in two instances, and another Democratic representative was placed in a heavily Republican district. Districts were given highly irregular shapes to give Republicans a further advantage.
A similarly devious scheme was carried out by Republicans in Texas. As Justice Stevens opined, “‘only possible explanation’ for the way lines were drawn was ‘a naked desire to increase partisan strength, then no rational basis exists” for not applying the equal protection doctrine.’ –BL ]
Justices Bow to Legislators in Political Gerrymander Case
by DAVID E. ROSENBAUM
WASHINGTON, April 28 — Ruling in favor of Republicans, the Supreme Court on Wednesday upheld the boundaries of Congressional districts in Pennsylvania against Democratic charges of unconstitutional political gerrymandering.
But the court, in a 5-to-4 decision, left open the possibility that someday a case of gerrymandering might arise that was so egregious that it violated the Constitution.
Four justices — Chief Justice William H. Rehnquist and Associate Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas — held that redistricting was a political matter that was always beyond the court’s purview.
Speaking for the four, Justice Scalia wrote that the Constitution did not provide “a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting.”
Four other associate justices — John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer — said the court was obligated to step in when the maps of political districts were drawn for no other reason than to put one party at an advantage over the other.
Holding the swing vote, Associate Justice Anthony M. Kennedy voted with his conservative colleagues in saying that the Pennsylvania case did not violate the Constitution. But in a separate opinion, he declared that he was not willing to say as they did that no case would ever rise to that standard.
The lineup of the justices was the same as in the case that ended the recount in Florida after the 2000 election and essentially awarded the presidency to George W. Bush.
Several other redistricting cases are in the pipeline and may end up before the Supreme Court. If the court accepts a suit challenging State Senate and House districts in Georgia and decides it on the same ground as the Pennsylvania case, then Democrats would be the winners. But issues other than partisan gerrymandering are involved in the Georgia case, and it could be decided on different grounds.
The most conspicuous case is in Texas. A new map of Congressional districts was approved there last year at the urging of Representative Tom DeLay, the House majority leader. Republicans drew the new lines after they won full control of the Legislature, and they are expected to bring the party at least four new House seats in November.
In Pennsylvania, the Congressional lines had to be redrawn in 2002 after the state lost two House seats as a result of the 2000 census. With a Republican governor and Legislature, the new boundaries were set so that Democratic incumbents were placed in the same district in two instances, and another Democratic representative was placed in a heavily Republican district. Districts were given highly irregular shapes to give Republicans a further advantage.
At the time of the 2002 election, the state had 3.7 million registered Democrats and 3.2 million registered Republicans, but after the election, the state’s Congressional delegation went from 11 Democrats and 10 Republicans to 12 Republicans and 7 Democrats.
Democrats cried foul, and three voters sued in federal court, claiming the redistricting deprived them of their right to equal protection. A three-judge federal court in Harrisburg dismissed the suit, saying Democrats had not demonstrated sufficient injury, and the case (Vieth v. Jubelirer, No. 02-1580) was appealed to the Supreme Court.
The issue of partisan gerrymandering is as old as the Republic. The word “gerrymander” was devised in 1811 to mock the governor of Massachusetts, Elbridge Gerry, who drew an election district that was said to resemble a salamander.
The Supreme Court steered clear of how political boundaries were set until 1960, when it declared racial gerrymandering to be unconstitutional. Then in a confusing 1986 ruling, Davis v. Bandemer, it held that political gerrymandering could conceivably be unconstitutional.
But the court never explained what the standard was for violating the Constitution, and since then, no challenge to partisan gerrymandering has ever been successful.
In his controlling opinion on Wednesday, Justice Scalia wrote that since “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged” over the last 18 years, the court “must conclude that political gerrymandering claims are nonjusticiable.”
Justices Stevens, Souter and Breyer wrote separate dissents, all of them holding that blatant partisan gerrymandering was incompatible with democratic principles.
Justice Stevens argued that when the “only possible explanation” for the way lines were drawn was “a naked desire to increase partisan strength, then no rational basis exists” for not applying the equal protection doctrine.