October 27, 2004
TO THE VICTORS BELONG THE SPOILS:
Lost in the Political Thicket: The Supreme Court should find something new to say about election law—or start letting others do the talking. (Heather Gerken, Legal Affairs)
THE SUPREME COURT'S MOST RECENT VOTING RIGHTS DECISION, Vieth v. Jubelirer, suggests that the court has reached an intellectual dead end in election law. The justices' inability to resolve the case cleanly is unwelcome news in light of the presidential election. With the last election marred by Bush v. Gore, one of the most controversial decisions in the court's history, the country is already aware of how risky it is for the court to intervene in the electoral process without the guidance of a workable analytic framework.Both Bush v. Gore and Vieth are part of a story that began four decades ago. The court has long tried to use a conventional individual rights framework to resolve election-related claims that are really about the structure of the political process. An individual rights framework is suitable for addressing a concrete and personal harm, such as the disenfranchisement of a voter blocked from the polls by an illegal tax or a literacy test. But the framework does not provide adequate tools for resolving other types of election law cases, including the claim in Vieth challenging the fairness of a redistricting plan. As a result, the court now finds itself mired in a doctrinal holding pattern.
If the justices don't radically change course, we face two unappealing prospects. Either the court will withdraw from the field, leaving the fate of our democracy to self-interested legislators, or it will render more incoherent opinions that do as much harm as good. Fortunately, there are better options. Either the court should develop a new way to decide election law cases, or voters and their representatives should create nonpartisan institutions to regulate the electoral process, thus relieving the court of the need to police the politicians who now make the rules.
The fate of the Republic is supposed to be in the hands of self-interested legislators--why shouldn't the people's elected representatives determine voting districts? These are political questions in which courts have no place. Posted by Orrin Judd at October 27, 2004 11:03 AM
why shouldn't the people's elected representatives determine voting districts?
Because letting politicians choose their own voters creates absurdly gerrymandered districts that have no relation to actual geographic regions, leading to safe seats for life, which means politicians who can do what they want without consideration or compromise. I say redistricting should be in the hands of non-partisan commissions.
I'm in Nancy Pelosi's district, which has been specially designed for her by including San Francisco and jumps across the Golden Gate bridge to include parts of Marin county. If they made two districts out of Marin and SF plus some of the penisula to the south, as logic would dictate, then the ultra-liberal parts of both would be "diluted" with less liberal areas. The Democrats who drew the lines didn't want that.
Posted by: PapayaSF at October 27, 2004 12:01 PMwhy shouldn't the people's elected representatives determine voting districts?
We've got that here in California.
It's called Gerrymander for the Incumbents.
Some of our districts are literally enclaves of the incumbent's True Believers, Loyal Party Members, and welfare-bum/serfs connected by miles-long center dividers of streets.
Posted by: Ken at October 27, 2004 12:56 PMElected representatives choose their own voters, but states' direct democracy referendums are out ?
How is that consistent ?
Posted by: Michael Herdegen at October 27, 2004 01:18 PMThe system is based on representatives, not democracy.
Posted by: oj at October 27, 2004 01:58 PMOJ
It appears that the Republican Party has taken your advice and is making a major effort at getting the minority vote out
Posted by: h-man at October 27, 2004 02:04 PMThis is one of many areas which should be outside Federal Court scrutiny, unless very basic tenets like one-man, one-vote are abused. Districts should also be contiguous, if only by a bridge.
If people get annoyed enough at the gerrymandering, they'll vote the gerrymanderers out.
Posted by: Bart at October 27, 2004 02:05 PMPapayaSF;
I am sorry to be mean, but I just laugh at the idea that it is possible to construct a "non-partisan commission". If you want a solution, you need a set of rules that are enforced by the commission. In this case, the rules can be very simple, easy to understand and reasonably effective.
- Any member of the legislature can submit a redistricting plan to the commission
- The ratio of the largest to smallest district (in terms of population) can't be larger than 1.1
- The plan with the shortest total border length wins
Do as the Founding Fathers did, harness partisanship, don't delude yourself in to thinking it can be done away with.
one man one vote is anticonstitutional.
Posted by: oj at October 27, 2004 02:25 PMoj:
Under your system, we'd live in an oligarchy.
The representatives are meant to serve the public, not the other way around.
AOG:
Congress managed to do it with the base closure commission, BRAC.
Posted by: Michael Herdegen at October 27, 2004 03:11 PMMichael:
The base closure commission is an aberration, which only gained traction because Congress wanted to spend the 'peace dividend', but didn't want to vote on base closures (i.e., on specific military cuts). So they found a way to say yes or no, nothing more.
If the day comes when Congress votes yes or no on the recommendations of a SS commission (no debate and no amendments), then I might agree with you.
Posted by: jim hamlen at October 27, 2004 03:53 PMAOG: Perhaps I should have written "bipartisan" or "multi-partisan." All I meant was "not controlled by the party in power."
Posted by: PapayaSF at October 27, 2004 05:26 PMI think that the whole idea of trying to find some group of people who are somehow "above politics" to engage in districting is an illusion, and a dangerous one at that. It is like hoping that the Supreme Court will consist of 9 paladins of super human virtue instead of 9 crazy old women.
The dingbat junior assistant professor of law at Harvard law school cited:
"A more radically democratic solution . . . from British Columbia, which is redesigning its electoral process from scratch. The architects of the new design? One hundred and sixty randomly selected citizens of the province, who will spend months analyzing the current process and potentially devising an overhaul that would then be put to a referendum vote in 2005."
Either they will be clueless and incompetent or they will be lead around by the nose by the professional staff which will tout them on the virtues of the Soviet Constitution (a wondrous document far superior to the British Constitution, which has never been committed to paper). Would you rather live in Britain or Soviet Union?
The fact is that we are all human and we all have political leanings. Only a mental defective could be at all neutral as to the out come of an inherently political process such as districting. Better it be done in public by our elected representatives where we can see them and throw stones at them, than in secret by commissions composed of Richard Ben-Venality and Jamie Al GoreLicker.
Further the Supreme Court has messed up the possibility of constraining, legislators by simple rules such as county and city integrity in the futile pursuit of mathematical equality that will never be found. Frankfurter was right and the rest of those idiots were wrong. Time to admit it and be done with it.
A final note: Computers will not bail you out. I refer you to an excellent article in American Scientist by Brian Hayes titled Machine Politics found in pdf format on this page.
Posted by: Robert Schwartz at October 28, 2004 03:16 AMA particularly acute problem in Hawaii, where equal-size districts result, sometimes, in 'canoe districts' whose parts are separated by 200 miles of ocean.
The equality is ruined, becuase although each district has the same number of voters, the ones in the smaller fraction have (almost) no impact on elections.
Gerrymandering does not bother me so much.
Having a bicameral legislature, with houses of unequal size, helps.
A canoe district for state senate usually is not also a canoe district for the smaller state house seat.
This is a subject where flexibility and compromise enhances the long-term functioning of democracy; and extremism works against everybody's interests.
There comes a time in a successful democracy when most of the big issues have been solved, or at least settled to the point that they're not worth fighting over any more.
We reached that point a while back. Thus, a frozen Congress is a good thing.
Posted by: Harry Eagar at October 29, 2004 05:43 PM