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The rejection of the legislature's near-perfect plan has thrown Pennsylvania's political establishment into chaos. The primary election scheduled for May 21 — five weeks from Tuesday — may be rescheduled to September if the legislature cannot meet the court's three-week deadline to draw up a new plan. Congressional campaigns have ground to a halt just weeks before the election, as incumbent Democratic congressmen who had already announced their retirement mull comeback bids and others, mostly Republicans, consider withdrawing their candidacies rather than running in radically altered districts. This is political bedlam brought to you by partisan and capricious judges — and it is utterly unnecessary. It's difficult to imagine a map more rigid in its adherence to the constitutional mandate for equally sized districts than the law which was just struck down. Until recently, the technology didn't even exist to sort people so precisely into evenly balanced political districts, and modest differences — up to 1 percent of a district's population — were routinely upheld by the courts. The plan just struck down as unconstitutional was itself a 46-fold improvement upon the accuracy of the 1991-92 Pennsylvania congressional redistricting, where the disparity between the largest and smallest district was 891, and where no more than three districts came closer to the benchmark achieved by the 19 new districts under the stricken plan. To get a sense of just how trivial the court's hair-splitting decision is, consider that these population counts are based on decennial Census data that's already over two years old. Even if the data were perfectly accurate to begin with, significant population shifts have occurred since the 2000 Census, making identically sized districts impossible. Even the most "equitable" plan would require creating districts that have already drifted significantly apart in population — in some cases, to the tune of 20,000 people or more. Nobody is arguing that we shouldn't rely on the 2000 Census in drawing district lines, but the ephemeral nature of the decennial results should instill in these jurists a healthy dose of humility. Redistricting is an inexact science at best, and flexibility should be embraced in drawing the lines when it's clearly in the public interest. Legally, the decision hinges upon an improbably strict reading of the Supreme Court's ruling in Karcher v. Daggett, a troublesome 1983 decision which held that state legislatures must justify any reason for drawing any district that deviates even slightly from the average. Possible justifications include preserving geographic compactness and keeping political units — counties, townships, precincts — together in the same district. In Pennsylvania, creating mathematically perfect districts that conformed to the arbitrary "ideal" meant taking the extreme step of dividing precincts in two. As it was, the rejected map divided six precincts across the state. Going from a deviation of 19 down to zero would have required splitting up 20 more, creating confusion and imposing needless costs on local taxpayers. Pennsylvania Republicans thought that by avoiding this added complexity and expense, they had more than justified the minuscule deviation. But Judges Richard Nygaard and Sylvia Rambo disagreed. The Karcher framework has wrought a state of affairs where virtually every redistricting decision is subject not only to proper constitutional review — but to judicial micromanagement by robed masters with motives that are potentially every bit as political as the state legislatures'. Most troubling still is the court's insistence on incumbent protection as a legitimate reason for striking down Act 1, another import from Karcher. In their opinion, Judges Nygaard and Rambo bemoan the fact that, "[i]n contrast to its treatment of Democratic incumbents, no Republican congressmen are forced to run against each other," and argue that the Republican plan "fails most miserably" in "avoiding contests between incumbent representatives," a redistricting guidepost endorsed in the Karcher decision. In both Karcher and Vieth, the courts are usurping a political decision that belongs solely to the people and their elected representatives. By favoring redistricting criteria that explicitly protect incumbents, the courts are arbitrarily tailoring laws in favor of a certain class of individuals, individuals who happen to be incumbent representatives. They are elevating incumbent protection, and implicitly in Vieth, the reelection of Democratic incumbents, to high constitutional principle. Nobody argues that Pennsylvania's Act 1 wasn't a partisan Republican effort. Indeed, it was one of the Republicans' shrewdest re-mapping operations in the nation. Pitting as many Democratic incumbents against one another as possible, Republicans successfully forced the retirement of Democratic Rep. Robert Borski and put Reps. John Murtha and Frank Mascara into a primary against each other. But a vital difference must be observed: While elected legislatures are free, within constitutional limits, to take partisan politics into account, the courts are not. The courts are not allowed to use policy minutiae or political considerations as a basis for deciding constitutional issues, as the Pennsylvania court clearly did in Vieth. Judges are only empowered to strike down laws which have clearly overstepped that bright constitutional line. The extent to which states break up precincts into census blocks for the purposes of redistricting, the issue at stake here, would not have concerned James Madison. It is not a constitutional issue. There's one final myth underlying the Vieth ruling that needs to be dispelled: that Act 1 unfairly favored Republicans. While Republican legislators were certainly very effective at zeroing out the current crop of Democratic incumbents, their overall plan actually crafted districts that closely mirrored the political divide in Pennsylvania. In a state Al Gore won by four percent, ten of the new congressional districts favored Gore in the presidential race, compared with nine for Bush. Michigan's Republican bias in redistricting was actually much more conspicuous. Gore won the state by five points, and yet he managed to capture just five of the fifteen newly designed congressional districts. Despite this notable difference between the two states, the seats created by GOP legislators in both actually leave ample room for strong Democratic challengers to potentially capture many of the new marginally Republican districts. Eight of Michigan's new congressional seats gave Bush a majority ten points or less; in four of them, the victory was by five points or less. Republicans will have to fight to win the 13-6 or 14-5 seat majority critics say is assured if some semblance of Act 1 passes judicial muster in Pennsylvania. Suburban Philadelphia's new sixth congressional district, a seat nicknamed "the Gerlach district" after favored Republican State Sen. Joseph Gerlach, may actually turn out to be more of a swing seat than Republicans bargained for: Gore won it by 0.6 percent in 2000. Moreover, the conventional redistricting math always ignores the split-ticket voting prevalent in the region. In 1988, suburban Bucks County voted 60 percent to 39 percent for George Bush, and also sent liberal environmentalist Peter Kostmayer to the U.S. House. In an era when blue-collar Delaware County was more Republican in presidential politics than it is today, the area elected Democrat Bob Edgar to Congress for several terms on end. (Now that the county votes Democratic in presidential elections, the local congressman-for-life is a Republican, Curt Weldon.) The lesson here is never to underestimate the chances for electoral upheaval, especially when redistricting unseats large numbers of incumbents, as it will do in Pennsylvania if an easy way can be found around this judicial roadblock. Don't trust the wild claims that Pennsylvania's new districts will necessarily skew the state — and the battle for Congress — towards Republicans. Vieth v. Pennsylvania is not certainly not the only redistricting case in this cycle where judges have blatantly disrupted the electoral process. One hopes that it will be the last. While there is a fair chance that the Republican legislature will approve a simpler alternative that keeps the old plan's contours roughly intact, one almost hopes that the district court continues on its hostile, rejectionist path. For one thing, such an action would give Pennsylvania a chance to appeal the faulty decision to the U.S. Supreme Court. Then, the Court would have the chance to modify the unworkable aspects and overtly pro-incumbent overtones of the Karcher decision in the hopes of shutting down this activist mischief in 2011 and beyond. — Mr. Ruffini is a writer living in Washington, D.C. He maintains the website PatrickRuffini.com. |
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