I’d like to hear analysis from some of our more learned legal commentators,because my understanding of Constitutional Law is woefully inadequate(as in a grain of sand compared to, say, the mass of the entire known universe) but in this article The Trouble With Texas, Stuart Taylor Jr. seems to think the SCOTUS should “fix this mess.”
Well a good deal of the “mess” of gerrymandering is the result of judicial meddling in legislative rights and duties enumerated in Article 1 of the Constitution.
Justice Lewis Powell, in a 1983 dissent warning that the Court’s “uncompromising emphasis on numerical equality” would” encourage and legitimate even the most outrageously partisan gerrymandering.” Requiring near-exact numerical equality made a hash of the traditional redistricting standards: city and county lines,compactness, contiguity, and the like. Those had been the only brakes on gerrymandering.
The justices’ unduly broad reading of the 1982 Voting Rights Act amendments as requiring safe seats for black and Latino politicians led to the drawing of oddly shaped “majority-minority” districts.
If the SCOTUS does open the Pandora’s Box of mandating redistricting, virtually every district in every state is going to be challenged. The de facto result will be the judicial branch usurping the legislative prerogative to draw districts.
My admittedly shallow interpretation of the Constitution seems to be that partisan gerrymandering is perfectly legal and the majority party’s right. Even Taylor seems to think there is little chance the Texas redistricting will be overturned, but advocates it anyway.
Hasn’t the SCOTUS done enough damage? I think they shouldrule, and throw out the provisions in the Voting Rights Act (a misnomer if there ever was one) that mandate guaranteeing minority seats. Either we have a color-blind justice system or we don’t. There is nothing spelled out in the Constitution guaranteeing a black congressional seat, an Hispanic one, an Inuit seat, an Italian-American seat, a gay seat or a vegan seat. The only legal requirement is that districts have roughly the same population. The composition of that population as a factor is a judicial construct.
Attacks on partisan gerrymandering have proceeded under qualified protection analysis, and, while the Court has held justiciable claims based on claims of denial of effective representation, the standards are so high neither voters nor minority parties have yet benefited from the development.
The other argument Taylor makes is that gerrymandering is rendering too many elections moot because of the incumbent protections inherent in extreme grouping of like-minded constituents. While I don’t think gerrymandering is a good thing per se, I don’t read a Constitutional tenet that guarantees the court must ensure all races be competitive.
Hopefully the court President Bush is helping to reconstitute will revisit many of the egregious over-reaches enacted during the years an out of control SCOTUS ruled the country by judicial fiat.
Its heady to think that by the end of his term, its entirely possible Bush will have named more than half the judges on the court. John Kerry was right when he said 2004 was the most important election of our lifetimes.
UPDATE: Polipundit has a take on what is going on:
The hidden message Stuart Taylor Jr. is sending, is the growing realization on the Left that the Republican mandate is not only stable, but growing, and that the condition of conservative control is not likely to end anytime soon. So the ordinary hope that things will return to ‘normal’, e.g. liberal shenanigans, is giving way to a bit more desperation and a demand to grab power however they can, which dismays the Left still more to find that the Courts pay more attention to the Constitution, and so less to the Donkeys.