A Loss for Competitive Elections

NY Times Editorial 6/29/06

The Supreme Court, in a badly fractured decision yesterday, largely upheld Tom DeLay's gerrymandering of the Texas Congressional districts. Instead of standing up for a fair electoral landscape, the court produced a ruling that did little to ensure the vibrancy of American democracy, and that itself had an unfortunate whiff of partisanship.

Given the strong negative feelings that voters have about Congress — in a recent Times poll, just 23 percent of those surveyed approved of the job lawmakers were doing — it is startling how few races are expected to be competitive this fall. This is largely because of increasingly sophisticated partisan gerrymandering that uses high-powered computers to draw lines that in many cases make voters all but irrelevant.

Texas' 2003 redistricting was an extreme case. Mr. DeLay, who was then the House majority leader, led a fierce and successful campaign to capture Texas' Legislature for the Republicans. (He is facing criminal charges of using illegal corporate campaign contributions to do it.) Then, even though Texas had already redistricted after the 2000 census, the Legislature took the rare step of redistricting again. The new lines were drawn in such a partisan way that Republicans ended up with nearly two-thirds of the state's Congressional delegation.

The Supreme Court has indicated in the past that gerrymandering can be so egregious that it violates the Constitution's equal protection clause. But the court has never set out a test to determine what constitutes such a violation, and it failed to do so again yesterday. The court has proved itself capable of thinking up elaborate tests when it wants to — it has made up standards virtually out of whole cloth, for example, to decide when Congress has infringed on states' rights. It is disappointing that the court is not as resourceful when it comes to protecting voters' rights. The court rightly struck down one Congressional district yesterday, citing the Voting Rights Act, but that did not begin to address the serious problems with the 2003 redistricting.

In this post-Bush-vs.-Gore era, the court's critics will note that it again split on partisan lines, with the most conservative justices most approving of the Texas lines. That was also true in a 2004 case in which it upheld, by a 5-to-4 vote, a pro-Republican redistricting in Pennsylvania. But that same year the court, disturbingly, affirmed a lower court's ruling striking down a pro-Democratic redistricting in Georgia as unconstitutional. It is disappointing that it could not have come up with a decision yesterday that had a greater appearance of fairness.