Believers in government by judicial thunderbolt should look to a case, Whitford v. Gill, making its way to the Supreme Court as a possible vehicle for judicial control of legislative gerrymandering.
The reapportionment decisions of the 1960s, unlike the British Reform Acts of 1832, 1867 and 1918, were the products of no great political movement, but of agitation by academic theorists, foundations, and liberal activist organizations. “Expert” political scientists told us that mathematically equal districts would end alleged discrimination against and under-funding of cities and promote moderate rather than conservative control of state legislatures. The dissenters, those antique fuddy-duddys Justices Frankfurter and Harlan, were derided when they predicted that mathematical districting would lead to partisan gerrymandering, as was Professor Philip Kurland when he noted that most cities had already won some additional representation and the real beneficiaries would be prosperous and reactionary suburbs. Static boundaries had the effect of rewarding economically declining areas, not necessarily a bad thing.
Undeterred, the liberals plunged on. Few now know who their state legislators are, and both state legislatures and the federal House of Representatives have become polarized between extreme groups. Connections between local and state governments have been severed. Gerrymandering has been further fostered by the Voting Rights Act. The segregation of black minorities in separate “voting rights districts” represented by what professor Lani Guinier has celebrated as “authentic” blacks those crazies and half-crazies unable to persuade their colleagues of anything. Even President Obama is said to have acknowledged that Rep. James Clyburn of South Carolina, the only member of the Congressional Black Caucus representing a majority non-black district, was its most effective member. The journalist Arthur Krock in the 1960s referred to the United States as a polity “sickened by quack cure-alls.” Reapportionment was one of them.
Because the Republicans were more respectful of and interested in state government, they were first in the field in exploiting the new possibilities. Accordingly, the Democrats and their foundation friends have gone in search of another quack cure-all—the “nonpartisan” districting commission. These bodies are designed to be as naive and insecure as possible; the one in California was selected from the citizenry at large by sortition. Once chosen they will predictably be dependent upon the advice of academics styling themselves “political scientists.” (Some of the older colleges and universities still have “Government” rather than “Political Science” departments, a relic of the era in which the neighboring disciplines were thought to be history, economics, and social psychology, not mathematics.)
These expert creatures are Democrats in politics and in political philosophy of the Jacobin rather than Burkean persuasion. The lines that they draw in their zeal to combat the evil Republicans will further diminish the representation of local interests and their enthusiasm for the Voting Rights Act will lead to proportional representation not only of blacks, who are no longer the largest minority, but of Hispanics and Asians as well. Legislative extremism will not be abolished but will be given a different character, that found in countries like Israel and the French Third and Fourth Republics distinguished by increasingly faction-ridden and geriatric legislatures chosen for party loyalty.
In order to induce legislatures to surrender their self-protective redistricting powers to the filiae aurorae and their liberal foundations, judicial interference is needed. Hence a new theory providing for the measurement of so-called “wasted votes” has been propounded. As litigation in Arizona and other places has already shown, the cure is likely to be worse than the disease, and each new census will invite the resumption of judicial warfare. Thus, while the Republicans have schemed to capture state legislatures, the Democrats will scheme to capture state courts. Political partisanship rather than knowledge of the civil and criminal law will be the indispensable qualification for appointment or election to the higher judiciary.
The road back to sanity is to be found in a little-noticed 1983 Supreme Court decision, Brown v. Thomson (1983). In that case a majority of the Supreme Court began to recognize that the appropriate way to test redistricting was not by strictly measuring disparities between the largest and smallest districts but by calculating the minimum population necessary to elect a majority of the members of the legislative body. Where this percentage results from the application to pre-existing subdivisions of a uniform formula and 45 percent of the electorate is needed to elect a majority of a House, the existence of a few separately represented subdivisions that are small in population should disturb no one.
The effect of such a standard is that in most states, seats can be allocated to counties or pre-determined groupings of counties according to the method of “equal proportions” used in allocating seats in the federal House of Representatives among states without violating the 45 percent rule. Groupings will be needed in states like Texas and Georgia with large numbers of counties. As Professor Michael McConnell has pointed out, rural districts will typically be both the most “under-represented” and the most “over-represented” since some districts will fall short of the average population while other counties with a population not quite entitling them to a second or third representative will be “under-represented.”
Under such a system, boundaries of the less populous districts will remain constant over decennial reapportionments; the gerrymandering that takes place will be within counties and can be further curbed by allowing states to apply mathematical compactness tests comparing the length of outer district boundaries to that of a circumference of a perfect circle with the same land area.
The introduction or reintroduction of such a system requires the repudiation by the Supreme Court of its standard of absolute equality for congressional districts and a maximum percentage deviation of 10 percent to 20 percent between largest and smallest districts in state legislatures in favor of a “minimum necessary to control” standard. The change might alternatively be fostered by simple legislation by Congress under section 5 of the 14th Amendment: “A Congressional or legislative redistricting allocating seats among counties or predetermined groups of counties according to the method of equal proportions shall be deemed valid if counties with at least 45 percent of the population are needed to elect a majority of the legislative body.”
The repeal or invalidation of the Voting Rights Act in its application to districting would be helpful; this was very nearly accomplished by the recent Supreme Court decision in Cooper v. Harris (2017) impugning racial gerrymandering. The rise of new ethnic minorities renders it a recipe for racial strife, as Justices Douglas and Goldberg recognized in a concurring opinion in Wright v. Rockefeller (1964) more than fifty years ago, cautioning that ethnic quotas for legislators would lead the United States down the path followed in Cyprus and Lebanon; subsequent events in those countries have confirmed their judgment.
The remedy for reapportionment problems is thus to be found in the Supreme Court’s partial withdrawal from the political thicket, not in further incursions into it. The re-legitimization of county lines ensures that voters will again be able to identify their representatives, that local politics will be rendered more important and the mass media less so, that there will be better coordination between local and state governments, and that political extremism and ethnic strife will be minimized.
George W. Liebmann, a Baltimore lawyer and participant in several rounds of reapportionment litigation, is the author of Fifty Years of Reapportionment.