Hold the Line
The Texas redistricting case is not a winner for Democrats.
More election-related activism is potentially on the way: The court this term will hear two campaign-finance cases, which could potentially open the door to its throwing out longstanding limits on corporate and union participation in the political process. And it's widely expected that the court will consider a major constitutional challenge to Congress' power to renew those provisions of the Voting Rights Act that come up for renewal in 2007.
The alternative to all this election-law activism is a more modest Supreme Court that acts only to preserve core equality rights, like the right to vote without having to pay a tax. When the court acts in a contested area like partisan gerrymandering, it imposes a one-size-fits-all solution on the entire nation that cannot be changed without a constitutional amendment. Rather than intervening, the court should be willing to let the political process work things out. Congress can pass legislation putting the brakes on partisan gerrymandering (at least when it comes to congressional redistricting) and states with the initiative process can enact redistricting reform. The political process is not, in other words, "stuck" in this area, as it was when the Warren Court set out the one person, one vote standard. Then, state legislatures had no incentive to reapportion grossly malapportioned districts that favored farm areas over urban and suburban areas. In contrast, election reform is now a common ballot topic in the 24 states with initiatives; some redistricting-reform initiatives pass and other fail. More states now have redistricting commissions, which generally seems like a good idea. But the commission structure and criteria for redistricting differ from state to state, and appropriately so.
There are other ways for the Supreme Court to decide the Texas case in favor of the Democrats without creating a broad right to contest partisan gerrymandering. It could craft a special rule for mid-decade redistricting. Or it might find a Voting Rights Act violation based on allegations that the plan discriminated against minority voters. We learned from documents recently leaked to the Washington Post that career attorneys at the Justice Department believed the Texas redistricting violated minority voting rights, and for this reason the Texas re-redistricting should have been denied preclearance under the Voting Rights Act, a determination later overruled by Bush administration political appointees. Although the DOJ decision itself is not before the Supreme Court, concerns about minority voting rights alone could provide a narrower basis for the Supreme Court to overrule the Texas case.
But Democrats claim grandly that they want standards to rein in partisan gerrymandering. They should be careful what they wish for. If the court strikes down the Texas plan as an unconstitutional partisan gerrymander, Democrats might not be as happy when the see the next election-law rulings by the Supreme Court. As the Roberts Court begins its foray into the political thicket, we should all hope it moves slowly and cautiously.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.