Politics & Policy

Don’t Get Your Robes Caught in The Thicket

The Court should leave gerrymanders alone.

Who can love gerrymanders? They are an unfair manipulation of voting district lines in order to protect incumbent politicians–or, sometimes, help certain individuals get elected who want to become incumbent politicians. But as bad as political gerrymanders are for competitive and impartial elections, if the courts get involved in determining what is or isn’t an illegal gerrymander, they will only make matters worse. If voters are sick and tired of politicians choosing their constituents instead of us choosing them, it’s up to voters to fix the problem, not judges.

Here is the issue at hand. Today the U.S. Supreme Court hears arguments in a case that examines whether the Texas legislature’s 2003 congressional redistricting plan was an unconstitutional political gerrymander. (The High Court will also examine whether the plan violated the Voting Rights Act.) The plaintiffs–a hodge-podge of various Democrat-leaning groups and individuals–contend that the legislature created an unconstitutional gerrymander designed to benefit GOP congressional candidates.

Well, there shouldn’t be any doubt about the motivation of the Texas legislature in creating new districts in 2003: They wanted more Republicans elected to Congress. And, whether we like it or not, that’s how legislative redistricting works: the party in control draws lines for their partisan advantage. That is not unconstitutional–nor should it be.

Let’s hope it stays that way. The Supreme Court would be wise to avoid getting enmeshed in what Justice Felix Frankfurter called the “political thicket” of partisan redistricting. He knew there was no good way for judges to determine what is fair and what isn’t because the Constitution offers no standards for a court to follow in making such a determination.

In any event, all “partisan gerrymanders” ought to have one thing in common–the election results in a gerrymandered plan don’t reflect the will of the voters. So, did the Texas congressional districts drawn in 2003 properly reflect the will of the voters? Yes, they did. In fact, the election results in 2004–the first election after the plan went into effect–better represented the will of the voters than the plan that was in place in 2002, which, by the way, was drawn by judges, not the legislature.

Here’s why. In 2002, Republican congressional candidates received 56 percent of the state-wide vote, but won only 47 percent of the seats. Yet in 2004, Republicans won over 60 percent of the statewide vote and won 64 percent of the seats. As out of the ordinary as the 2003 redistricting may have been, it’s “fairer” than the earlier plan.

But regardless of which plan better reflects the choices of the electorate, courts need to steer clear of getting involved in these political matters. (A dozen states now have independent or nonpartisan redistricting bodies to draw voting districts and this movement seems to be gaining ground nationally.) It’s up to Texans to pressure their representatives in Austin to implement a better way to draw voting districts than the one in place if they believe gerrymandering is a problem.

“You can’t take politics out of politics,” goes the old saying, and nothing is more political than a legislative redistricting fight. Let’s hope the Supreme Court stays away from “fixing” the Texas plan.

Edward Blum is a visiting fellow at the American Enterprise Institute in Washington, D.C., and the author of How It Works in the Real World: The Consequences of the Voting Rights Act on Voting and Elections, forthcoming from AEI Press. Roger Clegg is president and general counsel of the Center for Equal Opportunity. Blum and Clegg filed an amicus brief in the Texas cases with the Supreme Court.

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