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Fight to end partisan gerrymandering far from over

Justin Leavitt

Justin Leavitt

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Thursday, June 21, 2018

Add one to the growing list of disappointments. The Supreme Court had the opportunity Monday to take a massive step toward more reasonable elections — and punted. The decisions postpone a national reckoning with the escalating pace of partisan warfare.

But just because the court kicked the can of partisan gerrymandering down the road does not mean those who hope for change are at a loss. In fact, there are plenty of other opportunities for victory on the horizon.

The two cases that the Supreme Court decided this week had to do with the districts we use to elect legislators. Every 10 years, we redraw federal, state and local districts to keep them roughly the same size. The district lines determine which voters elect which representatives, elevating some interests and burying others.

In most of the country, sitting legislators draw lines for the districts they call their own or for the districts they hope to have someday. Unlike most other democracies, we let incumbent politicians pick their own voters. The past few cycles have seen increasingly brazen efforts to promote personal and partisan interest over the public interest.

This is wrong, ethically and legally. In 2004, every single Supreme Court justice agreed that an excessive injection of politics into the redistricting process was unlawful. But they could not agree how to tell what was excessive. That disagreement did not condone the crime, but it effectively took the police off the beat.

Enter this week's opinions, confronting a Republican gerrymander in Wisconsin and a Democratic gerrymander in Maryland. (The 2010 elections gave Republicans more opportunities to rig the lines, but both parties have taken advantage when they've had the chance.)

The fundamental question was whether state power can be deployed to discriminate based on partisan affiliation. The usual answer is clearly "no." For redistricting, we have to settle for "we'll see." The court punted each case on procedural grounds. And while there are other cases in the works, for now, federal courts rarely offer relief when the officials we pay work to entrench some of us against others of us, on the basis of the parties we prefer.

Fortunately, we can look elsewhere. Each state has its own constitution. State courts in both Florida and Pennsylvania have recently invalidated partisan gerrymanders. More will be asked to do the same.

There is also life beyond litigation. Ten years ago, California took the pen from politicians , joining Arizona, Idaho, Montana, Washington and Iowa (sort of) in asking a balanced commission of independent citizens to draw district lines. New York and Ohio followed suit with promising changes of their own.

In fact, citizens may have measures on the ballot this fall in at least five other states, changing the process in places such as Arkansas and Utah. At least where the initiative is an option, voters ticked off by politics as usual may draw extra courage from the court's determination to be meek.

And we shouldn't stop there. Some smaller American towns — and many other countries — have election systems that lower the partisan temperature on district lines, with protections for majorities and minorities alike. If district lines are less vital for partisan gain, there is less temptation to abuse them for partisan mischief, no matter who draws the lines or which courts are watching.

And finally, there are the elections themselves. Partisan gerrymanders flourish when a single political party controls all of the levers of the redistricting process. In 2018, there are 15 gubernatorial races and more than 2,000 legislative races that could change the partisan lineup of state and federal redistricting decisions, leaving control either unified or split. Past gerrymandering has left a sea wall that is formidable but not insurmountable. The elections for the redistricting pen have already begun.

The Supreme Court passed up an opportunity to affirm basic principles about government of the people for the people. Thankfully, in many states, the people still have the chance to affirm those principles for themselves.

Justin Leavitt is a law professor at Loyola Law School at Los Angeles, a former official at the Justice Department and runs the All About Redistricting website.

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