Divided Supreme Court Upholds Pennsylvania Gerrymandering

WASHINGTON —  A deeply divided Supreme Court refused Wednesday to restrain state lawmakers from drawing electoral districts in a way that favors their political friends and punishes their political foes.

Partisan gerrymanders have been a fact of life throughout American history, said Justice Antonin Scalia, and there is no way for judges to decide when this inherently political process becomes too political.

He spoke for the court’s conservative bloc in concluding that judges should never get involved in these intensely political battles.

In a separate opinion, Justice Anthony M. Kennedy agreed that Pennsylvania’s Republicans did not go too far in 2002 when they redrew the districts in a way that favored GOP candidates and ultimately gave Republicans 12 seats and the Democrats seven in the state’s congressional delegation.

The 5-4 ruling is a major disappointment for liberal reformers who had hoped that the court would insist on fairness and equality in the political process.

They argued that elections are being “rigged” across the country so that politicians pick their voters, instead of the other way around.

During the 1970s and 1980s, Democrats used their majorities in state legislatures to ensure that their party would maintain a majority in the U.S. House of Representatives. Typically, they would draw district lines in a way that would lump Republicans into a few districts, leaving most with a comfortable majority of Democratic voters.

In recent years, and particularly since the 2000 census, Republicans have done the same. And thanks to more sophisticated computers, reformers say, state party officials can engineer the results long before the voters go to the polls.

Lawyers challenging this process had hoped the Supreme Court would rule that democracy requires elected representatives to reflect the will of most voters, not the line-drawing skill of the state lawmakers who control the process.

“Today’s decision means that the courts have given up on trying to curb even the most outrageous partisan gerrymanders,” said Tom Gerety, executive director of the Brennan Center for Justice at New York University Law School. He cited Pennsylvania, Georgia, Florida, Michigan and Texas as examples of overly partisan line-drawing.

While the framers of the Constitution envisioned the House of Representatives as reflecting the will of the people, political scientists say that, today, it rarely reflects democracy in action. In 2002, for example, 99% of the House incumbents who sought reelection won.

By contrast, senators must run statewide, so their reelection races are often competitive.

The two Washington lawyers who brought the Pennsylvania redistricting case to the Supreme Court said they did not view the outcome as a total defeat.

In his key separate opinion, Kennedy left the door open to a later ruling that would strike down an extreme instance of partisan gerrymandering.

“Today’s decision is a warning shot to legislators who care more about partisan greed than democracy and majority rule,” said Paul Smith and Sam Hirsch, the lawyers for several Pennsylvania voters who said they were disgusted with the process. Democrats have a slight lead in voter registration in the state.

Wednesday’s ruling highlights the conservative-liberal difference on matters of race and partisanship.

During the 1990s, the court’s conservative majority, in a series of 5-4 rulings, struck down moves by Southern legislators to create a small number of black majority districts. In North Carolina, for example, state lawmakers drew the lines so that only two of the 12 congressional districts had black majorities.

The high court struck down those “racial gerrymanders” as unconstitutional because they reflected race-based decision-making. The liberal bloc dissented, saying the states were seeking to give minorities a more equal share of representation.

In the Pennsylvania case, the two sides reversed field. The court’s conservative majority said the justices should not strike down “partisan gerrymanders” that reflect politics, while the liberals said the court should intervene to limit “partisan manipulation” of the process.

Scalia’s opinion in the Pennsylvania case of Vieth vs. Jubelirer was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas. Kennedy concurred in the result to form the majority.

The dissenters were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.