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Published: Tuesday, 5/11/2004

Protecting the 'gerrymander'

RARELY has the United States Supreme Court so shamefully dodged its responsibility to right a constitutional wrong as in the Pennsylvania congressional redistricting case decided April 28.

The court, in one of its trademark 5-4 swing-vote rulings, held that the partisan gerrymandering perpetrated in the Keystone State after the 2000 census was part of the political process and therefore outside the judiciary's responsibility.

In so doing, the Supreme Court refused to set foot in what Justice Felix Frankfurter famously referred to in a 1946 redistricting case as "the political thicket," a perilous realm where justices must not tread.

Never mind that subsequent courts, both liberal and conservative, have assumed the activist role and charged right into the undergrowth of politics when it suited them.

One of the most famous is Baker vs. Carr (1962), in which the court enunciated its "one man, one vote" precedent, which resulted in equally populated congressional districts under the doctrine of equal protection of the law. Bush vs. Gore (2000), which halted the Florida presidential recount and gave George W. Bush the White House, is another.

The Pennsylvania case presented the court with an opportunity to install a measure of equity into the process of drawing political maps, now practiced mostly for partisan advantage. Although Republicans were responsible in this instance, it's a bipartisan problem that has left the choice of members of Congress not to the voters but to the political operatives who draw the district lines using ultra-sophisticated computer software.

Before the 2000 census, Pennsylvania had a Republican governor and an 11-10 Democratic majority in its congressional delegation. After redistricting, a Democratic governor was elected in 2002 but the congressional delegation shifted to 12-7 Republican, even though Democrats comprise more than half of the state's registered voters.

It was a classic case of failure to ensure Pennsylvanians equal protection under the law, but the court turned back an appeal, saying that "political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist."

Translated, that's judicialese for "Yes, gerrymandering is unfair, but we don't have the political will or imagination to deal definitively with the issue."

The swing voter, Justice Anthony Kennedy, sided with the majority, but said that he could envision a redistricting case in which the political shenanigans were so outrageous that he might vote the other way.

Gerrymandering is almost as old as the nation, but it thwarts the will of the American voter as never before. Members of the U.S. Senate are elected on an equitable basis, but members of the House of Representatives get into office more with the click of a computer mouse, the exact opposite of what the Founding Fathers foresaw in the bicameral system of representative government.

The right combination of case facts, political circumstances, personal energy, and whatever else drives the Supreme Court doesn't come up regularly, perhaps as often as a Johnstown Flood. It's safe to say the court passed up a rare chance to distinguish itself.



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