Supreme Conundrum

 

William Raspberry

Monday, December 15, 2003; Page A31

You think last week's U.S. Supreme Court decision on campaign fmance pleased no one, just wait until the justices weigh in on congressional redistricting

The specific issue on which the court heard arguments last Wednesday is the 19-district map of Pennsylvania, drawn up in 2002 by the Republican-controlled state legislature. Democrats, with a statewide voter edge of 445,000 over Republicans, hold only seven of the 19 seats.

 

The reason is obvious - and admitted. The Republicans drew the district boundaries to maximize their political advantage. The court, which has long held that it's perfectly fine to take politics into account in drawing congressional and other districts, is being :asked by Democrats to say the Pennsylvania plan is too political.

It is, of course, but it's hard to see how the court could bring itself to do anything about it.

 

Which doesn't mean it won't try. Asked a decade ago to consider whether the North Carolina legislature was too race-conscious in producing a districting map that gave the state its first black U.S. representatives since Reconstruction, the court said yes. The shape of the district from which Mel Watt (D) was first elected -- in some places no wider than Interstate 85 was, to Justice Sandra Day O'Connor's mind, unconstitutionally "bizarre

 

Subsequent clarifications seemed to say that while legislatures are forbidden to engage in racial gerrymandering, they may draw districting maps calculated to satisfy any number of interests, including partisan advantage and protection of incumbents

 

What the court seems not to have counted on is the increased sophistication of computers, which now are capable of slicing and dicing states, as National Public Radio's Nina Totenberg put it the other day, "block by block and even house by house. . . [based on] party registration, previous voting patterns, income, charitable contributions, subjects of interest and even buying patterns of the people who live in those houses.

 

The result is that the designer can tell with near certainty which way those voters will cast their ballots," Totenberg said “.Will the court tell legislators they can't use this powerful information?

 

A couple of states have tried to reduce blatant partisanship by giving the redistricting task to either nonpartisan (Iowa) or bipartisan (New Jersey) commissions. Both try to keep districts reasonably compact. Iowa tries where possible to respect county lines

 

 But these efforts at bipartisanship and civility are not easily written into a judicial decree. Give the district-drawing power to politicians, and you've got to expect a political result.

 

It's worse than that. Staff the commissions with politically neutral paragons, and the problem remains. Should new districts, drawn after each decennial census, be as little changed as possible from the old? Should there be a requirement to draw them in a way to elect representatives in proportion to statewide party registration? Should community of interest be an overriding concern, and if so, is race a proxy for community of interest

 

These questions suggest a standard when there is none. Some of the justices, to judge from -their-questions during oral argument, seemed to think there .should be. Justices Stephen G. Breyer and John Paul Stevens seemed uncomfortable with the inability of a party with a clear majority to win a majority of the seats. Florida, for instance, has enough of a   Democratic edge that it can elect two Democratic senators. But republicans, who drew the district maps, hold an 18-7 advantage in the congressional delegation.

 

Unfair? Arguably. But as Justice Antonin Scalia put it, "How unfair is unfair?" Is it finally a matter of politics, and no concern of the courts? Can the Supreme Court deliver self of an opinion that reasonable people can follow, or will it get stuck in the role of supreme mapmaker? Can partisan heavy-handedness reach the point where the Supreme  Court will find it a violation of its own one-person, one-vote dictum?

 

And will whatever the court decides in the Pennsylvania case save it from having to deal with-equally problematic Texas, where outnumbered Democratic legislators twice absconded from the state to prevent a quorum and, temporarily, block a redistricting ill?