WASHINGTON, May 7 (UPI) -- The lower courts and state legislatures across the country are probably still trying to digest last week's Supreme Court ruling on political gerrymandering.
Let's hope they don't get indigestion. This is one plurality decision that may not stand the test of time.
More on that later.
Gerrymandering, of course, is the art of redrawing congressional districts into sometimes fantastic shapes -- such as salamanders, dragons, even turkeys -- to achieve a particular purpose.
In political gerrymandering, you redraw districts into those fantastic shapes, splitting counties and cities with abandon, to give an advantage to a political party.
Jam your opponents into several irregularly shaped districts they would probably win anyway, slice off isolated groups of others into equally weird districts controlled by your own party, and you can ensure that your party's candidates have the upper hand.
The practice most recently became popular in Texas, where Republicans hold sway in the state Legislature. The GOP said it wanted to redraw the state's congressional districts, despite the lack of a recent census requiring such a move, in order to better reflect the Republican ascendancy in the state.
State Democratic legislators, in true Lone Star style, said they'd be damned first, and fled across the border to Oklahoma. So far, the Republicans have prevailed in the courts, in rewriting Legislature rules to achieve a quorum and in carrying through with the redistricting, though at least one Democratic petition still has to be considered by the Supreme Court.
Since Republicans have firm control in at least 21 statehouses, and Democrats about 17, the GOP likes the practice a bit more than Democrats. If the statehouse control were reversed, the positions of the parties probably would be, too.
The case decided -- or almost decided -- by the Supreme Court last week involves redistricting in Pennsylvania.
Pennsylvania Democrats had challenged a GOP plan by the Pennsylvania General Assembly that redrew U.S. congressional districts in highly irregular shapes to give Republican candidates an advantage.
The Democrats complained that even though their party's candidates may receive many more votes statewide, Republican candidates could win significantly more of the state's congressional elections because of the new shape of the districts.
Eventually, a three-judge federal panel approved a modified GOP redistricting plan and dismissed the Democratic challenge. The Democrats then appealed to the Supreme Court.
Writing in dissent to last week's decision, Justice John Paul Stevens gave an idea of how the congressional district map was redrawn.
"Montgomery County alone ... (is divided) into six different congressional districts," Stevens said, quoting a Democratic plaintiff. "The new District 6 'looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks counties.'
"The 2002 plan 'is so irregular on its face that it rationally can be viewed only as an effort to advance the interests of one political party, without regard for traditional redistricting principles and without any legitimate or compelling justification.'"
A four-justice plurality led by Justice Antonin Scalia said, So what? There are no standards for judging the constitutionality of political gerrymandered congressional maps, so the courts should stay out of such disputes.
Scalia said political gerrymandering has existed since colonial days. Though the Constitution gives state legislatures the power to draw congressional districts, Congress has the authority to "make or alter" those districts.
"We conclude that neither Article I, section 2 (of the Constitution) nor the equal protection clause, nor (what the appellants only fleetingly invoke) Article I, section 4, provides a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting," Scalia said.
In order to reach that conclusion, the plurality had to overturn a 1986 Supreme Court decision in which the majority said the courts can remedy political gerrymandering as unconstitutional, but failed to agree on standards.
Scalia was joined in the plurality opinion by Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas.
Justice Anthony Kennedy, often a key swing vote on the court, joined the four-member plurality in the judgment, but did not join Scalia's opinion.
Kennedy agreed with the Scalia-led bloc in dismissing the Democrats' suit, but he said all judicial relief should not be closed off forever.
"The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself," Kennedy said. "Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment, 'We are in the business of rigging elections.'
"Still, the (Supreme) Court's own responsibilities require that we refrain from intervention in this instance," Kennedy added. If standards emerge that can measure the burden political gerrymandering puts on the electorate, "courts should be prepared to order relief."
The court's four liberal justices dissented in three opinions.
Justice Stephen Breyer wrote one of those opinions. He was joined by no one. Still, Breyer's 15-page dissenting opinion may prevail in the long run.
No standards for judging the constitutionality of political gerrymandering? Breyer said he could provide some.
The dissenting justice said there was "at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely the unjustified use of political factors to entrench a political minority in power. By entrenchment, I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power."
He added, "Where unjustified entrenchment takes place, voters find it far more difficult to remove those responsible for a government they do not want."
Whether "political gerrymandering does, or does not, violate the Constitution in other instances," Breyer said, "Gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution's equal protection clause" -- the guarantee of equal protection under the law. The guarantee that "one person, one vote" means your ballot is not worth less than someone else's.
Breyer goes into further specifics, which I won't deal with here. You can read them yourself by accessing the high court's Web site at supremecourtus.gov.
What would really make this issue interesting? Let's see if some three-judge panel weighing congressional district gerrymandering adopts Breyer's standard, and the case is inevitably appealed to the Supreme Court.
Which way will Kennedy jump then?
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(Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.)
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(Please send comments to [email protected].)
