Partisan (Gerrymandered) Re-Districting: Is the Florida Ruling a Game Changer?

Washington State Does It Better

A few days ago, a Florida Circuit judge ruled that Republican legislators had drawn state legislative district lines illegally, giving their party an unfair advantage in U.S. Congressional elections. He ordered them re-drawn. The judge ruled the Republican re-districting plan violated a 2010 ballot measure passed in Florida, called the Fair Districts Amendment, which tried to eliminate districts that purposefully favored one party over the other.

I am usually cautious about calling any single, confined legal event like this a game-changer, but this one has real possibilities. You can read about the details here and here. Even though the Florida ruling applies right now to just one state, and can still (of course) be overturned, it is hard to overstate its intellectual and symbolic importance.  It has been buried on page 7,  but not this Page Seven,

I would say the same thing if Democrats had been accused of rigging Congressional elections. And they have been. Newt Gingrich famously said D’s were able to retain control of the U.S. House of Representatives for decades (before his 1994 engineered revolution) with the help of districting schemes that favored Democrats.

Partisan redistricting is  (to me) so plainly unjust and a violation of the “equal protection clause” of the U.S. Constitution, and similar provisions in state constitutions, that it’s miraculous it has survived this long.  Former Justice John Paul Stevens agrees, but the High Court has never gotten into the fray. Even the “Warren Court,” which struck down insidious practices to rig elections using districts with blatantly unequal populations, stopped short of declaring partisan gerrymandering unconstitutional.

A main reason for that has been the reluctance of federal courts to take on the messy job of deciding whether or not state districting plans are biased; much less how to make them fair. One way for federal courts to address the issue without getting terribly enmeshed in politics or geographic information systems, is to require proof that the process of drawing district lines in a state has been insulated (to a reasonable degree) from politics.  That can be done if the lines are drawn by non partisan, independent commissions. California and Washington State perform redistricting in this manner. That’s not a perfect solution, but it sure beats D’s or R’s gathering in a hotel room in Kingsman, or a boat thirty miles out at sea,  to figure out how to screw the other party (and the voters).

Democrats have virtually no chance of winning back control of the House of Representatives in 2014. Chances are, they will lose additional seats. Democrats who think they will regain control of Congress in 2016 or (especially) 2020, after another decennial census is completed (triggering another round of re-districting), are also in fantasy land….unless something changes.

As along as state legislatures across the country hold onto their state Houses, and thus control over decennial census redistricting, Republicans will rule the U.S. House of Representatives for a very long time — or at least until demographic changes make some of the safe Republican districts created after the 2010 Republican landslide more competitive. This kind of control is self perpetuating, unless lawsuits, such as the one in Florida, are successful in state or federal courts.

If the issue ever reaches the current U.S. Supreme Court, we know how the vote of at least eight justices would turn out. It would again hinge on Justice Kennedy.  Justice Roberts could surprise, as he did in the Affordable Care Act (ACA) case. He would need to believe the reputation of the “Roberts Court” in history is seriously at stake.  Roberts’  switch in time in the ACA case succeeded in deluding at least one highly distinguished constitutional lawyer and historian, Laurence Tribe of Harvard, into believing there is much less partisanship on this High Court than most people think.  Huh?   See a review of Tribe’ new book here.  Sorry for the digression.

In any event, keep an eye on the Florida case and its progeny.

Aside from the toxic role of money in politics, the weakening of the 1965 Voting Rights Act, and the de (and non) regulation of the broadcast and print media, such that most Americans today receive “news” in the form of propaganda, there is nothing that undermines democracy more than the rigging of House congressional elections through gerrymandering.