Favorite

Legal gerrymander 

click to enlarge guest1-1.jpg

As the so-called "Fayetteville finger" redistricting plan has gathered steam in the state legislature, some — most prominently GOP state chair Doyle Webb — have suggested that they will consider taking such an obvious political gerrymander to court. They'd be smart not to waste any energy on it.

In a 2004 ruling, the U.S. Supreme Court essentially closed the door to lawsuits questioning the constitutionality of partisan redistricts (a tradition as old as the Republic). That precedent, Vieth v. Jubelirer, would drive any Arkansas case. The Vieth case emanated out of an aggressive gerrymander after the 2000 census by the Republican-controlled state legislature of Pennsylvania's congressional districts. Because the state was losing seats in Congress, the use of new technological mapping tools and the strategic pitting of Democratic incumbents against each other meant major gains for the GOP in the immediate aftermath of the redistricting. Democrats in the state cried foul and, specifically, cried that their Equal Protection rights had been violated.

The Democratic plaintiffs in the Vieth case had some hope that the Supreme Court would see things their way because of a 1986 Indiana case in which a majority on the Supreme Court had said that partisan gerrymandering did indeed raise Equal Protection concerns. Even more important, the Court majority in the Indiana case (Davis v. Bandemer) dramatically shifted from previous courts in saying that the issue was not inherently a "political question" (that is, an issue to be dealt with by elected bodies and not by courts). Thus, the Davis court gave a green light to Equal Protection litigation when persistent, aggressive partisan gerrymandering could be shown. Reformers hoped that when an aggressive gerrymander, like that in Pennsylvania, came to the Court, a new day would dawn and partisan gerrymandering would go the way of districts where urban voters were undervalued and districts driven by racial considerations.

All the justices in the Vieth case bemoaned the ugliness of the politics that had driven the redistricting process and four liberal justices actually said that the plan was unconstitutional, with different logic driving their separate decisions.

But, the decisive justices in the Vieth case said that there was simply no usable rule that could be established for gauging where partisanship in districting is bad enough to be unconstitutional. Justice Kennedy—in his usual role in the middle on the Court—said that he'd be open to such a rule being established in the future but had little hope that it could happen.

Congressional redistricting can't violate the "one-person, one-vote" rule laid down by the Supreme Court in the 1960s. And, those plans can't be driven by considerations of race or ethnicity that favor either the majority or the minority.

But, when it comes to partisan politics, the Constitution ultimately doesn't come into play. As Justice Antonin Scalia wrote in Vieth:

"Is the regular insertion of the judiciary into districting, with the delay and uncertainty that brings to the political process and the partisan enmity it brings upon the courts, worth the benefit to be achieved ... ? We think not."

The best way for Arkansas's Republicans to reshape district lines in their favor is to win control of state government by the time the next redistricting process takes place. (A more complex issue is whether they could do that before the next census, as the Texas legislature—driven by House Majority Leader Tom Delay—did in the middle part of the last decade.) For this is an area where elections truly have consequences.

Jay Barth is M.E. and Ima Graves Peace Distinguished Professor of Politics Chair of the Department of Politics and International Relations Director of Civic Engagement Projects at Hendrix College.

FAYETTEVILLE FINGER: A Democratic congressional redistricting plan that expands the 4th District by running a finger of land up to Fayetteville has riled Republicans. Below, an expert explains why "gerrymanders" drawn for political reasons are legal.

Favorite

From the ArkTimes store

Tags:

Comments

Subscribe to this thread:

Add a comment

More by Jay Barth

  • Feminism fuel

    In a rite that felt nearly religious, a year ago this week thousands of women voting for Hillary Clinton wore white to the polls mirroring the suffragists who fought for women's access to the ballot a century earlier.
    • Nov 9, 2017
  • Cotton to CIA?

    Political junkies without a real election to overanalyze fill the void with "what if?" scenarios. With the State Fair underway, consider this column a helping of cotton candy for such readers.
    • Oct 19, 2017
  • Getting to 40 percent

    As gauged by the number of weekly conversations on the topic, the hottest 2018 race in Arkansas politics is the race for mayor of Little Rock.
    • Oct 5, 2017
  • More »

Readers also liked…

  • Schlafly's influence

    Phyllis Schlafly, mother, attorney and longtime antifeminist, died recently. What Schlafly promoted was not novel or new. Men had been saying that men and women were not equal for years. However, anti-feminism, anti-women language had much more power coming from a woman who professed to be looking out for the good of all women and families.
    • Sep 15, 2016
  • Seven

    The controversy over the Ten Commandments monument on the Capitol lawn just won't go away.
    • Feb 9, 2017
  • Why a change of leadership at the LRSD now?

    Johnny Key's abrupt, unilateral decision to not renew Baker Kurrus' contract as superintendent strikes us as shortsighted, misguided and detrimental to the education of our children and the health of our community.
    • Apr 21, 2016

Most Shared

Latest in Guest Writer

  • Tax truths

    The idea that a tax cut for the wealthy will help everyone, though false, is a stubbornly marketable notion.
    • Nov 9, 2017
  • Can't afford to gut ACA

    The Affordable Care Act was passed into law with the promise that it would make insurance affordable. Because of bipartisan leadership in Arkansas, we continue to strive to achieve that goal. While rhetoric abounds, it is important to understand the Arkansas experience.
    • Sep 21, 2017
  • Tipping point

    I was extremely cautious before engaging in the educational debate about the State Board of Education's decision to take over the Little Rock School District.
    • Sep 14, 2017
  • More »

Event Calendar

« »

November

S M T W T F S
  1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30  

Most Recent Comments

  • Re: The smell of the swamp

    • I did as you suggested and read several articles about "consultant" Solution Tree and their…

    • on November 19, 2017
  • Re: The line

    • Thanks Autumn for your article and viewpoint that I totally agree with because I have…

    • on November 19, 2017
  • Re: The smell of the swamp

    • Interesting how Republicans always bleat about their support for "free market" competition, but really are…

    • on November 18, 2017
 

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation