During the current Supreme Court term, a judicial earthquake may shake the foundations of American political practice more than any ruling since Baker v. Carr, which in 1962 heralded the end of rural over-representation in state legislatures and the House of Representatives.
The case concerns the 1981 redistricting of the Indiana Legislature. The Republican majority gerrymandered – drew district boundary lines in a way designed to perpetuate G.O.P. control. Democrats sued, charging they were being deprived of equal protection guaranteed by the Constitution. They won in the lower courts and the G.O.P. appealed.
The case has produced an odd set of alliances. The national Republican Party, believing an anti-gerrymandering ruling would adversely affect Democrats because they are the current majority in more legislatures, entered on the side of the Indiana Democrats. Meanwhile, California’s Democratic Congressional delegation, whose edge rests on district lines carved out by a Democratic Legislature, joined the Indiana Republicans!
If the Court upholds the ruling, it would mark the first time legal action against partisan gerrymandering has been successful. Since the dominant party in almost every state engages in the practice to some extent, the implications of such a ruling would be national and profound.
The purpose of elections is to translate public opinion into public policy as accurately as possible. Gerrymandering interferes with that function by distorting election results. In some cases, a party can win a majority of the votes statewide but wind up with a minority of the seats in the legislature. Winning depends not so much on who gets more votes as on who draws the lines and how cleverly they do so. The only way to stop the practice is through the courts. To leave the solution to state legislatures is to leave it to those who themselves are the beneficiaries of gerrymandering.
The practice outlawed by Baker v. Carr – the ability of sparsely populated rural districts to send as many representatives to the legislature as heavily populated urban centers -and gerrymandering are two forms of the same evil. Both stack the cards politically. Both are forms of political cheating. But in bolting one door against political thievery 23 years ago, the Court left another open.
Opponents of judicial intervention argue that whereas population inequalities were subject to simple numerical definition and correction, gerrymandering is not conducive to such easy treatment. But readily applicable approaches are available. Justice John Paul Stevens suggests a simple three-part test to judge whether a districting plan is a gerrymander: first, determine whether it has an adverse impact on any political group, then whether it sets up district lines that raise reasonable suspicions of being based on partisan considerations. If the answer is yes in both cases, then the state legislature would be asked to justify the lines drawn on other grounds. If it couldn’t, the districting plan would be ruled a gerrymander.
Those against court action fear the judicial system may be swamped by suits directed against every new redistricting. More likely, however, is a repetition of the pattern which followed Baker v. Carr: first, a spate of suits challenging existing districting arrangements, followed by occasional cases as the courts clarify what is permissible and the boundary-draftsmen come to understand the limits to their ingenuity.
Prior to ”one man, one vote,” some asserted that court intervention was unnecessary and that eliminating unequal representation should be left to the regular political process. But the forces that controlled that process were precisely the ones with the most to gain from maintaining the status quo, so they did not act. Similarly, today there are those who implore the courts to refrain from moving against gerrymandering. But such a position is no less unrealistic now. In most states, the power to effect change rests with the very forces that benefit from not changing – the forces that have crafted the district lines.