by Matt Barr

Gerrymandering

I offhandedly mention below that Edward Lazarus' Findlaw column has some good points about gerrymandering. Turns out a lot of people are talking about that these days: David Broder, Professor Bainbridge, referencing a subscription-only WSJ piece (link via Asymmetrical Information), Daily Thoughts.

The latter includes the odd assertion that gerrymandering results in your getting a Representative who matches your views. As a resident of the district they concocted to get rid of Jim Traficant (back before everyone knew he'd so that by himself), but which unaccountably includes mostly the Mahoning Valley where Traficant used to reign as well as parts of Akron and little ol' us in a strip roughly the width of I-76 in between, I have to vigorously disagree. My creampuff Congressperson, Democrat Tim Ryan, isn't going anywhere for at least six more years (he's roundly unqualified for any job beyond the House, and won't get a statewide office or appointment because the Republicans are in control). He doesn't match my views. I dutifully vote for his Republican opponent -- me and twelve other people.

The idea was to pit Akron Congressperson (and Modern Day Warrior) Tom Sawyer against Traficant in the primary, and count on the Akronites and the more sensible Mahoning Valleyites picking the one with all his marbles. Even if they didn't, of course, they squished two Democratic incumbents into a contest for one seat, regardless.

But Traficant got himself into trouble after redistricting but before the primaries, so Ryan took on Sawyer and beat him -- quite an upset, at the time. And there he stays, with, as Broder puts it, "more job security than the queen of England -- and as little need to seek [his] subjects' assent."

But enough about me. I'm troubled by Lazarus' assertion that "an alert, vigilant Supreme Court is all that is needed" to remedy the problem of gerrymandering; while technically true:

As I discussed in a previous column, last year in Vieth v. Jubelirer, the Supreme Court had the opportunity to set limits on political gerrymandering in a case arising from Pennsylvania. There, state Republicans had helped themselves to two extra safe House seats by drawing electoral districts in a crazy quilt fashion.

Unfortunately, by a 5-4 vote, the Justices refused to declare even such blatant political gerrymandering unconstitutional....

Justice Anthony Kennedy provided the crucial fifth vote for the majority. But he also wrote separately -- holding out a ray of hope that the Court would someday revisit the issue. Justice Kennedy suggested that for the Court to change its mind, and intervene more often and more firmly, what is needed is a set of principles for identifying how much partisanship is too much, when it comes to redistricting. Without such principles, he feared that the Court's intervention, itself, would be unprincipled.

So indeed, the Court might deign to somehow swoop in and invalidate states' autonomy in drawing their Congressional districts; what troubles me is that's true. I would love to be rid of gerrymandered districts, as would, I'm sure, Democrats in Texas, but the last thing I want to do is run to the Supreme Court about it.

In Vieth, Mr. Justice Scalia, writing for the majority, correctly said: "the Framers provided a remedy for such practices in the Constitution. Article 1, sec. 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to 'make or alter' those districts if it wished." Art. I Sec. 4 says:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

So, Congress can do something about it -- and should (as suggested by some of the less reflexively judicial activist commentators than Lazarus). Why would Congress do something that's against its own members' interest? Because the President takes the lead on it -- proposing it, perhaps, in his State of the Union address -- and gets the American people behind him.

Browse books from Amazon.com: