Good for the Goose, Good for the Gander

The Supreme Court's redistricting decision today is really many different rulings in one. And it is clear even from a cursory read of the 132-page ruling-- six of the nine Justices wrote their own opinions-- that there is nothing close to unanimity on how to proceed in these sorts of political cases much less how to fairly or completely resolve the partisan dispute the Texas cases represent. In the end, the law of the land, as expressed today by a thin majority of the Court, is that a political party in power in a state may solidify its power in Congress by enacting intensely partisan redistricting at any time unless opponents of the power play can prove a burden on their "representative rights," whatever that means.

Justice Anthony Kennedy, who again emerged from the mist of the Court as the swing vote in the case, declared that since the Democrats had gerrymandered in Texas in the 1990s (and for generations before then) it was not necessarily unfair for the Republicans to have turned the tables on them in 2003. And he refused to apply a legal test offered by opponents of the 2003 GOP redistricting because the test would not also have dissolved the 1991 Democrat redistricting. "A test that treats these two similarly effective power plays in such different ways does not have the reliability appellants ascribe to it." Besides, Justice Kennedy noted, the Tom-Delay-inspired redistricting plan at least "closely" reflected "the distribution of state party power" as opposed to the Democrats' plan in 1991 that seemed to "entrench()" an electoral minority."

Justices Stevens, writing the main dissent, saw the case is much starker terms. It was not an arguable point, Justice Stevens said, that the 2003 redistricting effort by the GOP was motivated by "purely partisan desire to 'minimize or cancel out the voting strength of racial or political elements of voting population.'" Accordingly, he would not have required opponents of the new plan to meet some additional burden of proving that the results of the gerrymandering impacted those "representative rights" that Justice Kennedy mentioned. And he chided the Court's majority for wussing out on offering lower courts, who now surely will be innundated with gerrymandering cases, a workable legal standard.

To give you a sense of the breadth of the Court's view of the issue, two Justices, Thomas and Scalia, would have automatically dismissed the case as beyond the scope of the courts to resolve. And at least three Justices, including the two newest Justices, Samuel Alito and John Roberts, left open the possibility that the Court one day could come up with a legal test to be applied to these sorts of cases. The net result? Go to law school and become an expert in gerrymandering cases. If you do, you surely won't be out of the work for the next decade or so.

By Andrew Cohen |  June 28, 2006; 3:15 PM ET
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I think that the Supreme Court decision though, seems to make sense. From a liberal perspective, I wish that it would've invalidated gerrymandering in the middle of the decade, but what as shocking as what Delay did, the GOP was in power and the new districts more accurately represent the voting desire of the state.

If democrats take the legislatures in Michigan or Pennsylvania, they had better do the exact same thing, making the congressional districts better represent the populace.

Posted by: JC | June 28, 2006 03:46 PM

At the core of everything that is going wrong in the world today is the evaporation of democracy in america via gerrymandering, the useless electoral college and faked e-voting tallies from the republican corporations that make and subsequently hack their e-voting machines to make fake vote counts that dont match exit polls at all.
Until we dispense with the electoral college, ban gerrymandering statewide at the federal level and allow what is known as instant runoff voting for presidential elections- well.. we will be left with a non-representative group of losers pretending to be our government who kow-tow to corporations while sending the poor to fight wars for those same corporation's profits.
Fix the core of democracy and everything else will fix itself.
Leave it broken- because it IS BROKEN- and democracy will continue to be elusive and the Fascist Empire of the Bush Junta will continue to destroy the earth and murder hundreds of thousands of innocent people while they enslave thousands more that they don't kill.
Remember when Bush tells you they can't tell you anything because of national security- fascism loves the darkness and democracy is strongest in the sunshine.

Posted by: Dilbert | June 28, 2006 04:21 PM

Right on, Dilbert! Testify! You hit the nail right on the head. I hope your message isn't deleted.

Posted by: Wally | June 28, 2006 04:48 PM

Hi my name is Dilbert and I have no idea what I'm talking about.

Posted by: Dilbert Gibberish | June 28, 2006 04:54 PM

So according to Justice Kennedy two wrongs make a right? That's just the kind of clear-headed, insightful thinking we need to see from the highest court in the land. I believe the Hatfields and the McCoys can discuss the long term gains to be had from such justifications.

Posted by: AR | June 28, 2006 04:57 PM

The best way to insure representative government is (in addition to instant runoff voting -- see the federal law prohibiting multiple member districts must be repealed. This way, voters will have more choices than just republicans and democrats.

Posted by: Nat | June 28, 2006 04:58 PM

Despite the paranoia that seems to have surfaced here, the gerrymandering is a production of the Democrats. Just look at the history of this and the name. It happened in NC and happens in other states. No one side is more guilty than the other. It just looks like a crime to the losers. If the money spent fighting this case was put into the elections, the Dems may have won. Perhaps the Chinese can contribute enough this election that the Dems may win and restructure the lines.

Posted by: johnny | June 28, 2006 05:00 PM

Posted by: nat | June 28, 2006 05:03 PM


The real losers are voters who are denied meaningful choices by way of single-member districts.

Posted by: Nat | June 28, 2006 05:08 PM

So having multiple representatives to point the finger at is better than 1?

Sounds like a great way to evade accountability - you can always point to the "other" rep when you screw up.

Also, wouldn't this involve expanding the payroll - do we really want to give these folks any more money out of the federal treasury?

Back to the drawing board with this idea.

Posted by: Natty Light | June 28, 2006 05:14 PM

I am astonished at the blatant stupidity inherent in so many aspects of this case, indeed, in redistricting as allowed all over this country. One of the Texas districts, District 25, begins in Austin, a city which itself is slivered into three districts to blunt its influence, and runs hundreds of miles to the south to the Mexican border while being less than ten miles wide in several places. Who in their right mind does NOT think that this is gerrymandering? And who in their right mind is not insulted that the politicians and powers that be on both sides freely acted on the assumption that we're so stupid? They get away with it and will keep doing so as long as we keep allowing them.

Posted by: Kim | June 28, 2006 05:33 PM


I understand how you might be confused, but the seriously looney left typically huddle up for group chanting, and conspiracy theory exchange over at the Just trying to help you find your very own happy place.

Posted by: antiDilbert | June 28, 2006 05:35 PM

Setting aside the question of which party will benefit in the short term, this ruling seems like a serious mistake which builds reinforcing feedback into our political system. Once a state legislature is 'captured' by one party, they can use computer analysis of voting patterns to draw lines that all but lock-in permanent majority rule in that state. Both parties will be forced to regularly redistrict as a defensive strategy, since the winning party can transform what had previously been temporary control of the state legislature into essentially permanent control. (For those who remember Cold War game theory, this should look familiar; it's Mutual Assured Destruction in another guise.)

My question is, where will this red-blue division end? Are we going to be able to find some common ground and be able to survive as a society, or is increasing polarization going to pull the country apart at the seams?

I shudder to think what our political discourse is going to look like in 10-15 years if this practice becomes widespread. Our country is about to become more politically polarized than it's been since the (First?) American Civil War. Over time, the voting franchise will mean less and less and we may well find ourselves unable to head off a catastrophe once the system locks into this mode. We'll have become a democracy in name only, in which the choices are essentially meaningless, and even the politicians find themselves constrained by the system.

Think about it. These endless redistricting battles benefit no one and do not serve the national interest.

Posted by: BZ | June 28, 2006 05:51 PM

Dilbert's right on point.

The evidence is clear.

Posted by: Richard Katz | June 28, 2006 06:44 PM

Leaks of exit poll figures for the 2004 presidential election, mainly via the Internet, appeared to indicate a victory for John Kerry. The discrepancies between the exit poll data and the vote count that were outside of the margin of error, coupled with irregularities in the election which seem to explain the discrepancies and what many perceive as evasive tactics by the polling companies, have shed doubt on the legitimacy of that election amongst political activists and some government officials. (See 2004 U.S. presidential election controversy, exit polls for more detail.)

Posted by: Katz | June 28, 2006 06:50 PM

Posted by: Katz | June 28, 2006 07:04 PM

Any comments Aunty Dilbert?

Posted by: k | June 28, 2006 07:13 PM


Did it ever occur to you that people lie at the exit polls?

Many people think their vote is a private thing. So, when they are asked by some exit poller how they voted, they either don't answer at all or lie about how they voted.

Back to the conspiracy vault with you and this irrelevant post.

Posted by: Confused Katz | June 28, 2006 07:31 PM

Natty Light--

"So having multiple representatives to point the finger at is better than 1?

"Sounds like a great way to evade accountability - you can always point to the "other" rep when you screw up.

"Also, wouldn't this involve expanding the payroll - do we really want to give these folks any more money out of the federal treasury?

"Back to the drawing board with this idea."

The whole idea is to avoid gerrymandering. By having a single district that encompasses a single state and employing instant runoff voting (see ) one can ensure that voters have MEANINGFUL choices. Of course republicans and democrats just hate the idea of meaningful choice because they have the most to lose under such a system.

Posted by: nat | June 28, 2006 08:32 PM

You're right, I hate it.

Posted by: Natty | June 28, 2006 09:05 PM

I wonder what might shame the parties (both of them) -- or prod the states -- into adopting systems like Iowa's, where a nonpartisan body redraws electoral districts (and where the state supreme court can step in if it doesn't)?

I'm sure the system has drawbacks, but an eyeball look at margins of victory in the 2002 congressional elections did not show me any state other than Iowa where the average margin of victory in individual races was so low.

Some 425 House members ran for re-election in 2002, and if I recall correctly, all but 4 were re-elected. Like Brownie, it could be they're all doing a hell of a job, and we as individuals are angry only at OTHER PEOPLE'S members of Congress.

On the other hand, it's more than a little troubling that liberal or conservative, senior or junior, these people are returned at higher rates than if they'd been on the Supreme Soviet.

Posted by: Dave in Doubt | June 28, 2006 11:04 PM

Unfortunately this ruling comes as no surprise from a majority in the Supreme Court so full of themselves that they decided to elect the President for us. Now it seems that almost every decision they make is to justify their disastrous choice.

Posted by: PCD | June 29, 2006 01:50 PM

Setting aside the question of which party will benefit in the short term, this ruling seems like a serious mistake which builds reinforcing feedback into our political system. Once a state legislature is 'captured' by one party, they can use computer analysis of voting patterns to draw lines that all but lock-in permanent majority rule in that state.

The above comment is probably the most sensible response to the Supreme Court's ruling on the Texas redistricting issue.

The revolutionary generation did not foresee this, hence they offered no solution. It is up to us to solve this for ourselves.

It would appear that electoral commissions made up of party officials and non-partisan dignitaries, drawing the district lines under strict public guidelines and within limited period of time is an idea worth discussing.

Robert Chapman
Lansing, New York

Posted by: robert chapman | June 29, 2006 08:35 PM

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