The Supreme Court and Redistricting
1. Figuring out when Gerrymandering violates the constitution remains a mess.
Only racial categories seem strong enough and clear enough to a Court majority to form a basis of challenge. Some of the justices hold open the theoretical possibility for other grounds being used, but the degree of burden that must be shown seems to prohibit that.
2. The door is opened firmly for a state redistricting whenever a legislative majority wants to do so.
The second point I find deeply disquieting. While I don’t think each state will be redistricting every two years, I think it likely that in any given year at least one state will be having such a fight. That’s not going to do much for civility, good government, or anything else that I can see.
However, the problem here is not of the Court’s making. Rigged apportionment –usually favoring the wealthy or at least established interests--was a common feature of state constitutions in the 1780s. This was, after all, one factor leading to Shays’ Rebellion in 1786. With that in mind, one might think that the Constitution would address it, but it didn’t. It left the question of apportionment within each state up to the states just as it left the question of who could vote to the states.
The use of apportionment as a tool of racial discrimination, the 14th Amendment, and the changes in interpretation of that amendment beginning in the 1950s have combined to limit the states’ freedom to fix boundaries as they would. But except in cases involving racial discrimination, the Court majorities have still deferred to the states.
So what has changed? In part it’s technological. The data available for Gerrymandering is far more detailed now. It is simply easier to draw politically advantageous boundaries with Machiavellian glee. Part of it is also in the population. Most people don’t know the boundaries of their districts. That mutes the issue except when it is at its chaotic worse. And part of it is the decline in restraint among active politicians.
The logical solution to me would be a constitutional amendment reshaping the process and making clear that once each decade is enough. Apparently there is a new attempt in California to do that at the state level. I wish them well, and I hope the idea spreads.