The U.S. Supreme Court had before it a proposal to end excessive partisanship in legislative and congressional redistricting. If adopted, this proposal could have a revolutionary impact on American politics. But the court did not considered the proposal. Instead, the court on June 18 decided the Wisconsin and Maryland gerrymandering cases on procedural grounds. This was a big letdown.
Everyone following the issue anticipated something more, something dramatic, perhaps akin to the 1954 decision ending segregation in schools. It did not happen.
The plaintiffs, advocating the efficiency-gap formula as a standard for measuring partisanship in redistricting, had hoped the court would adopt it.
The defendants had hoped to see the court reject the proposed new standard and thus kill it.
Both sides expected a 5-4 decision, with Justice Anthony Kennedy as the swing vote, as he suggested in the Vieth v. Jubelirer case from Pennsylvania in 2001.
None of this happened. The proposed new standard, the efficiency-gap formula, was never mentioned. The court ruled unanimously that the plaintiffs failed to prove they had the “standing” to bring their claim to a federal court. “Standing” is a direct and personal injury to the constitutional rights they claimed were violated — the Freedom of Association Clause of the First Amendment and the Equal Protection Clause of the 14th Amendment.
The court noted that the plaintiffs challenged the redistricting plan for the entire state of Wisconsin, but only showed standing to file a claim for their individual legislative districts. To challenge the entire state plan the court said the plaintiffs needed to show that they had direct and personal injury to their rights under it.
Ordinarily, when a court finds the plaintiffs failed to show “standing” the case is dismissed. But Chief Justice John Roberts said this was not a usual case and sent it back to the local court to give plaintiffs the opportunity to demonstrate standing to challenge the statewide plan.
Time will tell if the plaintiffs can establish the requisite “standing” to bring their case back to the U.S Supreme Court. Whether or not they succeed, the efforts to curb excessive partisanship in state legislative and congressional redistricting will continue, but in different ways
The U.S. Constitution adopted in 1788 was silent on redistricting requirements. It simply gave the redistricting power to the state legislatures. Nearly two centuries later two constitutional criteria were determined by the U.S. Supreme Court: All districts must have the same number of people, based on the Equal Protection Clause of the 14th Amendment, and there can be no discrimination on account of race, based on the 15th Amendment.
If the U.S. Supreme Court is unable to adjudicate a rule for measuring excessive partisanship under the U.S. Constitution, some states will have to do it for themselves by adding appropriate amendments to their constitutions or enacting citizens redistricting commission statutes like California and Arizona have done.
Ohio voters have just approved constitutional changes on congressional redistricting reform. In Michigan there is a strong grassroots effort to obtain redistricting reform on the November ballot. North Carolina and Texas are embroiled in redistricting litigation. The Maryland case that the U.S. Supreme Court handled along with the Wisconsin case has also been sent back to the district court.
Pennsylvania is in a unique position. Its Supreme Court invalidated the entire 2011 congressional districting plan under the "free and equal elections" clause of the state constitution. The Pennsylvania Supreme Court relied solely on the state constitution, with no reference to the U.S. Constitution. Other states may want to follow Pennsylvania, but that will depend on the constitution of each state.
States lacking appropriate constitutional criteria for redistricting can, like Florida, amend their constitutions to include congressional redistricting.
The June 18 decision of the U.S. Supreme Court may thus have been a blessing, albeit well disguised. The federal constitutional system in the United States enables states to act in ways the U.S. government does not.
It might be easier for the political system if the U S. Supreme Court enunciated a rule measuring excessive partisanship that applied nationwide. But in the alternative, states can find a remedy state by state as they enact constitutional amendments or citizen commission laws as they deem appropriate.
It is a daunting challenge for the states but the prize — an effectively functioning representative government — is well worth it.
Franklin L. Kury has just published his third book, "Gerrymandering: A Guide to Congressional Redistricting, Dark Money and the U.S. Supreme Court." He resides in Hummelstown, Pennsylvania, and can be reached at firstname.lastname@example.org or www.franklinkury.com/
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