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Ruling could prove political earthquake

By
MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, April 28 (UPI) -- A Supreme Court plurality, in a Pennsylvania case that may change the political landscape of the United States, said Wednesday that the courts cannot rule on challenges to political gerrymandering.

The decision could affect similar disputes in Texas and elsewhere and is expected to benefit the Republican Party. It could also open the floodgates to politically gerrymandered redistricting wherever one party has firm control of a state legislature.

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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 more votes statewide, Republican candidates could win significantly more of the state's congressional elections.

But a four-justice plurality led by Justice Antonin Scalia ruled that political gerrymandering claims are "non-justiciable" because no standards for judging such claims exist.

The 2000 census showed that Pennsylvania was entitled to 19 House members, down from 21. The GOP controlled a majority of the state's General Assembly, as well as the governor's office.

"Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere," Scalia said.

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Democrats filed suit against the redistricting, alleging that it violated the one-person, one-vote requirement of the Constitution and the equal protection under law guarantee of the 14th Amendment.

Eventually, a three-judge federal panel approved a modified redistricting plan and dismissed the Democratic challenge. The Democrats then appealed to the Supreme Court.

In his plurality opinion, Scalia said political gerrymandering has existed since colonial days, and 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.

The justice was joined by Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas.

Scalia's plurality was joined by Justice Anthony Kennedy to form a five-member majority on the nine-member Supreme Court, though Kennedy did not sign on to Scalia's opinion.

Kennedy agreed with the Scalia bloc in dismissing the Democrats' suit, but he said all judicial relief should not be closed off.

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Kennedy's concurring opinion may provide some restraint on state legislatures eager to redraw the congressional map.

"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 each filed a dissenting opinion.

Dissenting Justice John Paul Stevens said, "The concept of equal justice under law requires the state to govern impartially. ... Today's plurality opinion would exempt governing officials from that duty in the context of legislative redistricting and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification."

Dissents were also filed by Justices David Souter and Stephen Breyer.

Stevens said one Democratic plaintiff pointed out that the redistricting plan splits Pennsylvania's "Montgomery County alone ... into six different congressional districts."

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"The new District 6 'looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks counties,'" Stevens said.

"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," he added.

In his dissent, Souter said, "The Constitution guarantees both formal and substantive equality among the voters." He was joined by Justice Ruth Bader Ginsburg.

"The use of purely political considerations in drawing district boundaries is not a 'necessary evil' that, for lack of judicially manageable standards, the Constitution must tolerate," Breyer said in his dissent. Breyer then proceeded to offer 15 pages illustrating what he said were possible standards.

State Legislatures Magazine reported after the 2002 elections that Republicans had firm control of 21 state legislatures and Democrats firmly controlled 16. Partisan control is divided in 11 legislatures; the remainder are effectively deadlocked.

Political gerrymandering is espoused by such national figures as House Majority Leader Tom DeLay, R-Texas, and it is expected to spread after Wednesday's ruling.

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(No. 02-1580, Vieth et al vs. Jubelirer, president of the Pa. Senate, et al.)

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(Please send comments to nationaldesk@upi.com.)

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