WASHINGTON -- The U.S. Supreme Court yesterday voted 5-4 to uphold Pennsylvania congressional districts drawn by the Republican-controlled Legislature to put Democrats at a disadvantage, but it left open the door to future lawsuits alleging gerrymandering.
Read the Supreme Court opinion in Vieth v. Jubelirer as an Adobe Acrobat document, which requires the free Adobat Acrobat Reader software. |
Four justices, led by Antonin Scalia, would have used the Pennsylvania case to declare that complaints of partisan redistricting could never be brought before federal courts, no matter how much a new configuration favored one party or the other.
Scalia, Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas would have overturned a 1986 decision in which the court held that some partisan gerrymandering could be so extreme as to violate the "equal protection of the laws" guaranteed by the 14th Amendment.
But Scalia couldn't persuade a fifth justice to sign his opinion, so yesterday's ruling goes into the Supreme Court record as a so-called "plurality" opinion, with limited application as a legal precedent.
Justice Anthony Kennedy did provide a fifth vote to uphold the Pennsylvania map but wrote a separate opinion that said future allegations of partisan gerrymandering might be taken up by the courts under "workable standards" not yet devised -- perhaps originating in the First Amendment's protection of free speech and political association.
Four other justices -- John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter -- agreed that, whatever the validity of the Pennsylvania map, allegations of gerrymandering could still give rise to litigation under the Constitution.
Paul Smith, a Washington attorney who argued in the Supreme Court on behalf of a group of Pennsylvania Democratic voters, said the fact that five justices still believe that gerrymandering can be challenged in court is a "warning shot" to legislatures tempted to manipulate boundary lines for partisan advantage.
In his plurality opinion, Scalia explicitly called for overturning the 1986 Davis v. Bandemer case from Indiana, in which the court held that allegations of gerrymandering could give rise to lawsuits.
Echoing comments at oral arguments by O'Connor, who dissented in the 1986 ruling, Scalia said: "No judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided."
Scalia conceded that the court often reviews allegations of gerrymandering based on race. But policing gerrymandering to favor a political party is harder, he said, because "a person's politics is rarely as readily discernible -- and never as permanently discernible -- as a person's race."
Speaking after Scalia, Stevens replied that "racial gerrymandering is only one species of political gerrymandering." He proposed a test in which courts would determine whether a legislature allowed partisan considerations "to dominate and control the lines drawn, forsaking all neutral principles."
Souter, in one separate dissenting opinion also signed by Ginsburg, proposed a five-part test for determining whether unconstitutional gerrymandering had occurred. In another dissent, Breyer suggested this definition of unconstitutional gerrymandering: "the unjustified entrenchment in power of a political party that the voters have rejected."
States must redraw boundaries at least every 10 years to reflect population shifts. Pennsylvania lost two congressional districts after the 2000 census, setting off a fierce battle between Democrats and Republicans over how to draw a new, 19-district map.
In Western Pennsylvania, the post-2000 map carved out a district now represented by Republican Rep. Tim Murphy of Upper St. Clair and led to a primary contest between two incumbent Democratic House members, John Murtha of Johnstown and Frank Mascara of Charleroi. Murtha defeated Mascara in the 2002 Democratic primary and went on to win in his new district.
Republicans now hold a 12-7 advantage in House seats in Pennsylvania, even though Democrats outnumber Republicans in the state. Republicans had held an 11-10 advantage when the state had 21 seats.
