Supreme Court will not second-guess partisan gerrymandering

There are two kinds of constitutional cases: those that adjudicate individual rights and those that clarify the ground rules for governance. The first category of cases usually gets more attention than the second, as more people are interested in the rights of flag burners than issues relating to the separation of powers. But the decision handed down yesterday on the constitutionality of legislative districts and gerrymandering is pretty important, because it affects who represents us in Congress.

The case is RUCHO v. Common Cause, issued on June 27. The Court decides 5-4 that the federal courts have no oversight into how state legislatures apportion congressional districts. Here's some background: each state gets a certain number of seats in Congress, depending on population. New York, California, Florida and Texas get many seats, as they are the most populous states. Wyoming, Alaska, etc. get fewer seats. Overall, there are 435 seats in the House of Representatives, and that number remains static. So the number of congressional seats for each state is a zero-sum game. What one party gets in the way of a congressional seat is taken away from the other party.

In Virginia, the state legislators who drew up the congressional district boundaries told their mapmakers they wanted more Republican seats than Democratic seats. This was pure partisanship. The Republicans then manipulated the boundaries to ensure they got more seats than the Democrats even thought he Democrats got more votes statewide than the Republicans. As Jeff Spicoli said in discussing the American Revolution, this may be bogus way to run the government. But Chief Justice Roberts said the constitutional framers did not envision any federal court oversight into this process and that they themselves futzed around with legislative districts. "To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers' decision to entrust districting to political entities." Partisan gerrymandering, therefore, is now considered a "political question" that extends beyond the reach of federal court jurisdiction.

I don't mean to be cynical here, but the five justices who signed onto this ruling are Republicans, the same party that is now benefiting from the partisan gerrymandering. The four dissenters are Democrats, now on the losing side of this issue, even though the Democrats control the House of Representatives at the moment.

Justice Kagan dissents. She says that partisan gerrymanders deprive citizens of their right to participate equally in the political process, and that the lower courts have devised ways for the courts to resolve these issues under constitutional guidelines. She really attacks the majority's reasoning here. She concludes, "of all the times to abandon the Court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent."