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Legal gerrymander

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As the so-called "Fayetteville finger" redistricting plan has gathered steam in the state legislature, some — most prominently GOP state chair Doyle Webb — have suggested that they will consider taking such an obvious political gerrymander to court. They'd be smart not to waste any energy on it.

In a 2004 ruling, the U.S. Supreme Court essentially closed the door to lawsuits questioning the constitutionality of partisan redistricts (a tradition as old as the Republic). That precedent, Vieth v. Jubelirer, would drive any Arkansas case. The Vieth case emanated out of an aggressive gerrymander after the 2000 census by the Republican-controlled state legislature of Pennsylvania's congressional districts. Because the state was losing seats in Congress, the use of new technological mapping tools and the strategic pitting of Democratic incumbents against each other meant major gains for the GOP in the immediate aftermath of the redistricting. Democrats in the state cried foul and, specifically, cried that their Equal Protection rights had been violated.

The Democratic plaintiffs in the Vieth case had some hope that the Supreme Court would see things their way because of a 1986 Indiana case in which a majority on the Supreme Court had said that partisan gerrymandering did indeed raise Equal Protection concerns. Even more important, the Court majority in the Indiana case (Davis v. Bandemer) dramatically shifted from previous courts in saying that the issue was not inherently a "political question" (that is, an issue to be dealt with by elected bodies and not by courts). Thus, the Davis court gave a green light to Equal Protection litigation when persistent, aggressive partisan gerrymandering could be shown. Reformers hoped that when an aggressive gerrymander, like that in Pennsylvania, came to the Court, a new day would dawn and partisan gerrymandering would go the way of districts where urban voters were undervalued and districts driven by racial considerations.

All the justices in the Vieth case bemoaned the ugliness of the politics that had driven the redistricting process and four liberal justices actually said that the plan was unconstitutional, with different logic driving their separate decisions.

But, the decisive justices in the Vieth case said that there was simply no usable rule that could be established for gauging where partisanship in districting is bad enough to be unconstitutional. Justice Kennedy—in his usual role in the middle on the Court—said that he'd be open to such a rule being established in the future but had little hope that it could happen.

Congressional redistricting can't violate the "one-person, one-vote" rule laid down by the Supreme Court in the 1960s. And, those plans can't be driven by considerations of race or ethnicity that favor either the majority or the minority.

But, when it comes to partisan politics, the Constitution ultimately doesn't come into play. As Justice Antonin Scalia wrote in Vieth:

"Is the regular insertion of the judiciary into districting, with the delay and uncertainty that brings to the political process and the partisan enmity it brings upon the courts, worth the benefit to be achieved ... ? We think not."

The best way for Arkansas's Republicans to reshape district lines in their favor is to win control of state government by the time the next redistricting process takes place. (A more complex issue is whether they could do that before the next census, as the Texas legislature—driven by House Majority Leader Tom Delay—did in the middle part of the last decade.) For this is an area where elections truly have consequences.

Jay Barth is M.E. and Ima Graves Peace Distinguished Professor of Politics Chair of the Department of Politics and International Relations Director of Civic Engagement Projects at Hendrix College.

FAYETTEVILLE FINGER: A Democratic congressional redistricting plan that expands the 4th District by running a finger of land up to Fayetteville has riled Republicans. Below, an expert explains why "gerrymanders" drawn for political reasons are legal.

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