A Supreme Court decision that relatively few people have heard of continues to haunt American politics. A decade ago, in the case of Richard Vieth et al. v. Jubelirer, a group of Pennsylvania voters challenged a partisan gerrymander that Republicans had engineered in the state after the 2000 census. By a five-to-four margin, the Court’s conservative majority ruled against the plaintiffs and found, in effect, that state representatives had free rein to draw district lines—even when they were designed solely to protect members of their political party.
With that green light from the Justices, partisan gerrymandering has become more of a blight in the past ten years. Armed with sophisticated software, state lawmakers can draw districts with ever-greater precision to include or exclude voters of one party or another. The result is that the vast majority of seats in the House of Representatives (and state legislatures) are not competitive. The constituents don’t pick their representatives; rather, the representatives pick their constituents. Both parties engage in the practice, but Republicans have had better opportunities in recent years, especially since 2010, when the census coincided with a Republican landslide. The G.O.P. locked in gains in a range of states, including Pennsylvania (again), Ohio, and Florida.
The redistricting behavior of state legislators has become so craven that a modest political backlash has developed, and a few hopeful signs have emerged. One came last month, in Florida. The Supreme Court had ruled out challenges to partisan redistricting under the United States Constitution, but states remain free to limit the practice under their own laws. In 2010, Florida voters passed an amendment to the state constitution that banned the creation of legislative districts “with the intent to favor or disfavor a political party or an incumbent.” Republicans in Tallahassee fought to keep the law from going into effect, but the state Supreme Court rejected their efforts, and then a group of voters, in a case led by the lawyers David King and John Devaney, challenged the congressional lines that the Republicans drew in 2010.
The plaintiffs had the extreme good fortune of having Judge Terry Lewis randomly assigned to their case. Judge Lewis, of the trial court in Tallahassee, had an earlier brush with history, when he heroically supervised a recount of the state’s Presidential vote, in 2000. That recount was cut short by the Supreme Court’s lamentable decision in Bush v. Gore. (I wrote about Lewis in my book about the recount, “Too Close to Call.”) Lewis is scholarly, fair minded, fearless, and a good writer—as illustrated by the legal thrillers that he writes in his spare time.
In a forty-one-page ruling, handed down on July 10th, Lewis blasted Republican politicians and political consultants for doing precisely what the voters prohibited: drawing district lines for partisan advantage. Worse, the authors of the plan tried to cover their tracks by deleting e-mails that revealed their political agenda. As Lewis wrote, these operatives “made a mockery of the Legislature’s transparent and open process of redistricting” while “going to great lengths to conceal from the public their plan and their participation in it.” In other words, the Republicans in Florida did what politicians always do when they are left to their own devices in redistricting.
The remedy Lewis ordered was fairly modest. He directed that only two congressional districts be redrawn. Tallahassee Republicans said that they accepted the judge’s ruling—but then demanded that the changes be kicked down the road, to the 2016 election, instead of being implemented in time for this November’s races. The timing is still being fought over. Still, the Florida case is a rare thing when it comes to the dismal story of partisan manipulation of redistricting: a step in the right direction.
There is hope for reform in the work of several states besides Florida. Redistricting will never be perfectly fair, or divorced from political considerations, but the best solution, by far, seems to be vesting the power to draw lines in bipartisan commissions. They have the greatest chance of creating electoral districts that are reasonably compact and competitive, instead of the attenuated jigsaw pieces that are drawn to bring certain voters in and keep others out. California, Colorado, Missouri, and Washington have moved in this direction. Iowa has long had a model plan. (The National Conference of State Legislatures put together an exhaustive review of redistricting in all fifty states.) None of these states is set to turn into a political paradise, but they will at least guarantee a modicum of fairness in this critical aspect of democracy.
It is a measure of the degradation of our political system that the effects of partisan redistricting hardly merit notice any more. It’s taken for granted that only a tiny fraction of congressional seats will truly be up for grabs in any given election. But the Framers designed the House of Representatives to reflect, with real precision, the will of the people every two years. That can’t happen—and it doesn’t happen—in most years and for most seats. Judge Lewis’s courageous opinion may insure that the House serves its original purpose—at least, in part of the Sunshine State.