A Flaw in Our Constitution?
The Supreme Court decided today that in all but one instance, Tom Delay's mid-decade Texas redistricting plan does not violate the Equal Protection Clause of the U.S. Constitution. In theory, the decision opens the possibility that each time a new party comes into power, that party can redistrict in a way that sharply increases the chances that it will remain in the majority. To the victor go the spoils.
As many journalists and legal scholars predicted from oral argument, Justice Kennedy was bugged by the lack of a workable standard for determining whether a given redistricting plan is a proper change to reflect changing demographics or an unconstitutional gerrymander. And I agree with him; the Constitution doesn't establish a standard, and there's no obvious, commonsense metric, either. So the Court said that without a workable standard, we're better off leaving the issue to elected politicians than to unelected judges.
But this issue seems especially ill-suited to be a political question. There's a terrible moral hazard problem. For a number of reasons, voters are best served by having districts in which elections are close. (You might argue--not unpersuasively--that if one party dominates a district, that party's primary will serve as the competitive election so important to a republic. But that practice effectively disenfranchises voters in the other party.) But each elected legislator has a strong incentive to fix the rules of the game so that she can win future elections easily. To solve this moral hazard problem, we need our redistricter to be free from the incentives that face elected politicians.
I see two clear alternatives. Judges could do it. See John Hart Ely, Democracy and Distrust (1980) (arguing that the role of unelected judges should be to reinforce democratic representation). The problem with this approach is 2-fold: (1) as Justice Kennedy noted, there's no law to apply, so judges are deciding cases in uncharted territory, and (2) unelected judges have political interests and preferences, so their decisions will be and/or will appear to be political. Of course, the Supreme Court's legitimacy is high, so perhaps the justices could do it without creating a huge backlash.
The other alternative is for the people to do it. A constitutional amendment specifying the methodology for redistricting would avoid the moral hazard problem and would give judges a standard for deciding future cases. The problem with this approach is that Article V of the Constitution requires the approval of two-thirds of each house of Congress, and both houses are currently dominated by one party. Thus, the GOP could set up an amendment that favors their insulation from political competition. The ideal timing for such an amendment would be when neither party dominates and thus both have similar interests. For example, 2 years ago was an optimal time for a constitutional amendment allowing naturalized citizens to become president because both parties had potential future naturalized presidential candidates (Schwarzenegger and Jennifer Granholm).
So how do we fix this problem? I don't know.
On a side note, the plaintiffs in the case (challenging the redistricting plan) argued that the highly irregular geographic shapes of some of the districts were clear evidence of a sleazy gerrymander. I don't see any reason (other than perhaps convenience) why districts ought to be based on geography.
Click here to read the Court's opinion.
As many journalists and legal scholars predicted from oral argument, Justice Kennedy was bugged by the lack of a workable standard for determining whether a given redistricting plan is a proper change to reflect changing demographics or an unconstitutional gerrymander. And I agree with him; the Constitution doesn't establish a standard, and there's no obvious, commonsense metric, either. So the Court said that without a workable standard, we're better off leaving the issue to elected politicians than to unelected judges.
But this issue seems especially ill-suited to be a political question. There's a terrible moral hazard problem. For a number of reasons, voters are best served by having districts in which elections are close. (You might argue--not unpersuasively--that if one party dominates a district, that party's primary will serve as the competitive election so important to a republic. But that practice effectively disenfranchises voters in the other party.) But each elected legislator has a strong incentive to fix the rules of the game so that she can win future elections easily. To solve this moral hazard problem, we need our redistricter to be free from the incentives that face elected politicians.
I see two clear alternatives. Judges could do it. See John Hart Ely, Democracy and Distrust (1980) (arguing that the role of unelected judges should be to reinforce democratic representation). The problem with this approach is 2-fold: (1) as Justice Kennedy noted, there's no law to apply, so judges are deciding cases in uncharted territory, and (2) unelected judges have political interests and preferences, so their decisions will be and/or will appear to be political. Of course, the Supreme Court's legitimacy is high, so perhaps the justices could do it without creating a huge backlash.
The other alternative is for the people to do it. A constitutional amendment specifying the methodology for redistricting would avoid the moral hazard problem and would give judges a standard for deciding future cases. The problem with this approach is that Article V of the Constitution requires the approval of two-thirds of each house of Congress, and both houses are currently dominated by one party. Thus, the GOP could set up an amendment that favors their insulation from political competition. The ideal timing for such an amendment would be when neither party dominates and thus both have similar interests. For example, 2 years ago was an optimal time for a constitutional amendment allowing naturalized citizens to become president because both parties had potential future naturalized presidential candidates (Schwarzenegger and Jennifer Granholm).
So how do we fix this problem? I don't know.
On a side note, the plaintiffs in the case (challenging the redistricting plan) argued that the highly irregular geographic shapes of some of the districts were clear evidence of a sleazy gerrymander. I don't see any reason (other than perhaps convenience) why districts ought to be based on geography.
Click here to read the Court's opinion.
posted by Garrett at 3:30 PM
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