Everyone knows that partisan legislatures frequently draw absurdly shaped election districts to benefit their own party. This kind of political gerrymandering has long been held constitutional despite the clear requirement of the Fourteenth Amendment that no state shall deprive any person of “the equal protection of the laws.” Advocates and scholars have long argued that when a partisan legislature redraws the lines of legislative districts to favor its own party, it is depriving the opposing party of “equal protection,” since those opposition voters will not be equally powerful in electing their favored candidates.

Racial gerrymandering, on the other hand, has been unconstitutional since the Supreme Court’s 1960 decision in Gomillion v. Lightfoot, where it struck down the Alabama Legislature’s plan to redraw the regular, square shape of the city limits of Tuskegee into a 28-sided polygon to exclude almost all the African-American voters and ensure a white electoral majority. This decision, reinforced by the Voting Rights Act of 1965, has resulted in the powerful enfranchisement of minority voters, who are protected from adverse racial gerrymandering.

However, disenfranchising members of the opposition party has not, until now, been held to violate their constitutional right to “equal protection.” In 2004 the court held (5-4), as Justice Antonin Scalia stated in the majority opinion, that “political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for such claims exist. ‘Fairness’ is not a judicially manageable standard.” But in a concurring opinion, Justice Anthony Kennedy added: “That a workable standard for measuring a gerrymander’s burden on representational rights has not yet emerged does not mean that none will emerge in the future.”

A decision invalidating political gerrymandering may very well occur this spring, and it could shift control of the U.S. House of Representatives from the Republicans to the Democrats.

The Supreme Court has heard arguments in two cases of quite clear partisan gerrymandering: one involving state legislative districts in Wisconsin favoring the Republicans and one involving congressional districts favoring the Democrats in Maryland.

While it considers those cases, it has put on hold an additional case involving congressional districts favoring Republicans in North Carolina, and it has already let stand a Supreme Court of Pennsylvania decision that held that the Republican-gerrymandered congressional districts violate that state’s constitution.

In the next few months the Supreme Court may very well announce the “workable standard” sought by Justice Kennedy, who is likely to cast the decisive vote, but I fear the proposed “efficient algorithm” proposed by the Democrats in the Wisconsin case (referred to by Chief Justice John Roberts as “gobbledygook”) is simply too difficult to understand and apply.

This is crucial because any decision concerning boundary lines will apply not just to congressional and state legislative districts but also to those within cities and for school boards and other local commissions. Thus, the “workable” standard will have to be understood and applied not just by lawyers and statisticians but also by those drawing electoral boundaries at every level of government.

Instead, it would be better for the court to insist that districts be drawn in nonpartisan or bipartisan fashions. Lines established by an independent redistricting commission – rather than the state legislature – were unanimously approved by the high court in 2016, and similar independent commissions are now used in six states (Alaska, Arizona, California, Idaho, Montana and Washington – a mix of “red” and “blue” states).

The mandate for the Arizona commission, upheld two years ago, was the first to create districts of equal population in a gridlike pattern across the state. These grids could be adjusted slightly to maintain geographic compactness and continuity; to show respect for “communities of interest” to follow locality boundaries; to use clear geographic features, and to favor political competitiveness.

The Arizona Independent Redistricting Commission consisted of five members: two nominated by the Republicans; two by the Democrats and a fifth chosen by the other four commissioners.

While independent commissions may be the best method to end the grotesque political gerrymandering now rampant throughout the country, a constitutional alternative might be a bipartisan rather than an independent plan. This could occur when the state legislative houses were controlled by opposite parties or perhaps when the governor was of a different party.

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