Court to Tackle Gerrymandering

Pennsylvania Redistricting Decision Could Have Broad Implications

Posted June 27, 2003 at 6:33pm

One day after ruling in a redistricting case with profound implications for the Voting Rights Act, the Supreme Court announced Friday that it would hear another redistricting case next term that could severely limit partisan gerrymandering.

The high court agreed to take a case brought by Pennsylvania Democrats who argued that their constitutional rights were violated by a Congressional map that was drawn by Republicans to favor the GOP. It is the first time that the justices have agreed to hear a case on partisan gerrymandering since 1986.

Should the court rule in the Democrats’ favor, it could dramatically alter the way Congressional district boundaries are created.

“That could have major implications for redistricting at all levels,” said Tim Storey, a redistricting expert at the National Conference of State Legislatures. “It could be as big as one person, one vote.”

The Pennsylvania case was a challenge to the time-honored practice of the party in power in the state Capitol rigging the redistricting process to its advantage.

Democrats sued to overturn a Republican redistricting plan, arguing that the GOP allowed the population deviation in the state’s 19 Congressional districts to become too great in an effort to gain House seats. Earlier this year, a federal judge in Pennsylvania rejected the suit, and the Democrats appealed.

Sam Hirsch, a lawyer at the Washington, D.C., firm Jenner & Block who handled the Democrats’ appeal, called the Republican plan “pretty extreme” and said he wants the Supreme Court to return the case to a trial court.

While the lawyer asked the high court to consider several issues related to partisan gerrymandering, it is not clear how wide a look at redistricting the justices will take. Hirsch cautioned against assuming that any ruling will have wide-ranging implications.

“We don’t think it would be a healthy thing for past gerrymandering litigation going on in all 50 states,” he said.

But Storey said that because redistricting is partisan-driven in just about every state legislature (Iowa, with a nonpartisan redistricting commission, is the rare exception), a ruling in the Democrats’ favor is sure to be significant, especially if the court tries to define what partisan gerrymandering is.

“There are no limits on partisan gerrymandering,” Storey said. “There’s nothing like a national standard.”

The very fact that the Supreme Court has agreed to hear the case is significant, Storey continued. In 1986, it ruled that federal courts can strike down redistricting plans that they deem too partisan. But while district courts have waded in on lawsuits seeking to reverse redistricting plans, the Supreme Court has refused to hear appeals on everything but voting rights cases.

Pennsylvania Republicans were unavailable for comment late Friday. State party officials were on a retreat Friday and could not be reached. A spokesman for state Attorney General Michael Fisher (R), who has defended the state’s map in court, did not return a phone call for comment.

Pennsylvania lost two Congressional districts after the 2000 Census, and Fisher has argued that redistricting did not disproportionately hurt Democrats. Republicans hold 12 of the state’s 19 House seats.

If the Supreme Court rules in the Democrats’ favor, it is unclear whether the 2004 elections would be affected. The court is tentatively scheduled to hear the case in January 2004 and may not issue an opinion until June.

The high court’s decision in the Georgia case, meanwhile, impacts only the 16 states that are subject to the 1965 Voting Rights Act. But it could have broad implications when state legislatures take up the task of redistricting again after the 2010 Census.

In a 5-4 decision, the court overturned a lower court ruling that held the Georgia Legislature had improperly drawn its state Senate districts after the 2000 Census because it had diluted the number of black voters in some majority-minority districts in order to help Democrats win in other districts.

The plan, which was supported by 10 of 11 black state Senators and 33 of 34 black members of the Georgia House, did not change the number of majority-minority districts. But in three of those districts, the black voting age population declined from 55.4 percent, 60.6 percent and 62.5 percent to just more than 50 percent in each district. The Justice Department, which is charged with reviewing certain states’ maps under the Voting Rights Act, ruled that these changes constituted retrogression and a district court agreed with that assertion.

Writing for the majority, Justice Sandra Day O’Connor said that the Voting Rights Act allows for other factors aside from creating districts that virtually guarantee the election of a minority to be taken into account.

“Section 5 allows States to risk having fewer minority representatives in order to achieve greater overall representatives sympathetic to the interests of minority voters,” O’Connor wrote.

The majority opinion also added: “Spreading out minority voters over a greater number of districts creates more districts in which minority voters may have the opportunity to elect a candidate of their choice.”

In their dissent, the four most liberal justices on the court argued that the ruling would only serve to make the redistricting process even more political as “there will simply be greater opportunity to reduce minority voting strength in the guise of obtaining party advantage,” wrote Justice David Souter.

Democrats hailed the ruling for ending the use of the Voting Rights Act as a tool for Republicans to build majorities in state legislatures and Congress.