The political drama surrounding the case is well-known even to people who don’t follow politics. Former House Majority Leader Tom DeLay (R-Texas) engineered a Texas state legislative majority in part through fundraising activities that later resulted in his indictment and the loss of his leadership position. Thanks to the new Congressional map, the Republicans went on to gain House seats in the 2004 election. In addition, the map change removed a few conservative Democrats who helped make up the shrinking ideological center in the House.
Everyone can see the embarrassment of the grandchildren beating on each other. In the ruling, the kindly grandparents on the Supreme Court have told the grandchildren to play nice. But the grandchildren know that grandma and grandpa will not really punish them so they will continue to do whatever they want.
Associate Justice Anthony Kennedy is the swing vote on partisan gerrymandering and the author of the majority opinion. The partisan intentions revealed by replacing a constitutionally acceptable map mid-decade with a partisan map does not provide a standard, because, Kennedy reasons, there is no federal constitution or statutory limit on mid-decade redistricting. A properly applied standard must address directly the effects of partisan gerrymandering, not intentions.
Alas, if only Kennedy could decide on a standard for partisan gerrymandering. Several have been offered that measure the effects of excessive partisan gerrymandering, but Kennedy continues to balk. Without guidance from the court, we continue in a twilight zone where the court says excessive partisan gerrymandering is impermissible but is unable to say under what circumstances.
Meanwhile, nevermind the mess the grandchildren are making of democracy.
Pushing partisan (and incumbent-protection) gerrymandering to extremes has contributed to a reduction in electoral competition to the point where we are wondering if the Democrats will win the 15 seats they need to gain majority control the House, despite President Bush’s approval rating dropping to the 30s. Voters are not engaged in predetermined legislative elections. We have little accountability, which emboldens politicians to push gray areas of law into the black pit of corruption. We have no ideological center left in politics that might be induced by some competitive districts, which not only fuels partisan bickering but also shuts out representation for the real majority in the country, moderates.
Since the grandparents on the Supreme Court are willing to indulge the grandchildren, it is up to the parenting of the state courts and voters to reprimand the bad children.
Roughly half of the states have limits on mid-decade redistricting, either through explicit constitution or state statutes or through state Supreme Court interpretations of such language. There are other states with language similar to these states that has not been tested in state court, so it is unknown exactly how many states forbid the practice as a matter of law.