April 28, 2004
Vieth decided

The Supremes upheld Pennsylvania's redistricting plan in the Vieth v. Jubelirir case, though in doing so they did not throw out the Bandemer precedent.

By a 5-4 vote, the court rejected a challenge by Pennsylvania Democrats to districts that were redrawn after the 2000 census by the state's Republican-controlled legislature. The plaintiffs had argued that the new boundaries were so politically skewed in favor of the Republicans that they violated the constitutional principle of one person, one vote.

The case is one of several in which Democrats are challenging new congressional districts that were drawn by GOP-controlled state legislatures following the latest census with the aim of maximizing Republicans' chances of winning elections for the U.S. House of Representatives.

In a decision last week, the Supreme Court declined to review a lower court ruling against a Democratic challenge to a controversial GOP redistricting plan in Texas. But a more substantive appeal against those districts is still pending.

In today's decision, Justice Antonin Scalia wrote that political disputes over district boundaries date back to the early 18th century and that "it was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength."

But Scalia was narrowly rebuffed in an attempt to revisit a 1986 Supreme Court decision that left open the possibility of claims against gerrymandering. He wrote that 18 years of wrangling in the courts over gerrymandering "with virtually nothing to show for it" have shown that such claims are "nonjusticiable" and that the 1986 ruling was wrong.

He was supported in that view by Chief Justice William H. Rehnquist and justices Sandra Day O'Connor and Clarence Thomas. But Justice Anthony M. Kennedy, who had voted with the majority to uphold the Pennsylvania boundaries, sided with four justices in refusing to overturn the 1986 ruling, thereby foreclosing future challenges to gerrymandering.

Kennedy, in a separate written opinion, said correcting district boundaries that were drawn for partisan reasons "would commit federal and state courts to unprecedented intervention in the American political process." However, he said the courts must remain open to cases of redistricting that might be unconstitutional.

So basically the extreme partisan gerrymander forced through last year is not illegal on those grounds. There's still a Voting Rights lawsuit left in the system, but as I've said before, the lines we have now are reality. Time to make some lemonade, you know what I mean? Via Nosey.

UPDATE: The local reaction:

J. Gerald Hebert, a lawyer representing Democrats in that case, said Wednesday's ruling shows a court majority is clearly concerned that partisan gerrymandering can violate constitutional rights.

"The search for a standard goes on, but there is a clear warning shot to legislators who are more interested in partisan greed than in fairness, democracy and equal representation," Hebert said.

National Republican Congressional Committee Chairman Tom Reynolds said the Supreme Court upheld a political tradition.

"We're very pleased by today's decision affirming that redistricting is a political process and congressional boundaries can be drawn based on political criteria," Reynolds said. "This practice is not new and is used by both parties. It is a victory for the redistricting process, and we're looking forward to moving on."

Sadly, I think Reynolds' take is closer to reality. Here's also a bit more on Justice Kenndy's position:

Justice Anthony Kennedy joined the majority in rejecting the Pennsylvania case. But he said the absence of an objective standard to measure partisan gerrymanders does not rule out of the emergence of one in the future.

"If a state passed an enactment that declared, `All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation ... ,' we would surely conclude the Constitution had been violated," Kennedy wrote. "If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive."

Kennedy said the court may want to pursue whether a standard could be reached under claims that partisan gerrymanders violate a person's First Amendment rights of free speech and free association.

Sure seems like a narrow target to me. As I said, this is the hand we're dealt. We can play it or not, but we're not getting any more cards.

UPDATE: Greg Wythe is pissed.

UPDATE: Greg Morrow has a proposal.

Posted by Charles Kuffner on April 28, 2004 to Killer D's | TrackBack

they did not throw out the Bandemer precedent

I read Kennedy's opinion. It seems to me that Kennedy uprooted Bandemer. Most certainly he rejected the Bandemer test. Of course, Kennedy seemed to have found no acceptable test to replace it with.

My interpretation is that Kennedy destroyed Bandemer as case law, basically leaving no case law in its place.

Posted by: Vinnie on April 28, 2004 10:46 PM

You may be right. They certainly didn't affirm Bandemer. This case, and the Texas cases if they go for the state, may turn out to be the last word on redistricting and gerrymandering. Which would be a shame, even though I fully expect states with Democratic legislatures to extract some revenge in 2012.

Posted by: Charles Kuffner on April 29, 2004 6:41 AM