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

Sign up for the Daily Update email

Tags:

Comments

Subscribe to this thread:

Add a comment

More by Jay Barth

  • Medicaid favor

    Arkansas's distinctive form of Medicaid expansion has been precarious since its creation in 2013 by a bipartisan coalition.
    • Apr 26, 2018
  • On institutions

    American conservatism has taken many often contradictory, but more often overlapping forms over recent decades.
    • Apr 12, 2018
  • Fixing the city

    Across neighborhoods, social classes and races, there is a growing consensus that Little Rock's city government is not as healthy as it should be and that its persistent underperformance in meeting the needs of the state's capital city makes the future of a promising city fragile.
    • Mar 29, 2018
  • 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
  • Another Jesus

    If you follow the logic of Jason Rapert and his supporters, God is very pleased so many have donated money to rebuild a giant stone slab with some rules on it. A few minutes on Rapert's Facebook page (if he hasn't blocked you yet) also shows his supporters believe that Jesus wants us to lock up more people in prison, close our borders to those in need and let poor Americans fend for themselves for food and health care.
    • Jul 20, 2017

Latest in Guest Writer

  • Living in poverty

    To successfully raise children as a single mother living in poverty in Central Arkansas requires a staggering amount of resilience, a significant amount of support from loved ones and the community, and at least a little bit of luck.
    • Apr 26, 2018
  • No different

    We were leaving Southwest Little Rock heading north on Interstate 30. There were four of us — four black male teenagers. I was in the backseat. There was a BB gun that resembled a handgun inside the car.
    • Apr 12, 2018
  • Keeping a millionaire

    How do you get more millionaires to live in your state? You tax them fairly and equitably. And you use that money to pay for investments that improve quality of life, like education and infrastructure that produce successful businesses. The wealthiest people might not be excited about their tax rates, but research shows that nearly none of them will be bothered enough to leave.
    • Apr 5, 2018
  • More »

Most Viewed

  • Living in poverty

    To successfully raise children as a single mother living in poverty in Central Arkansas requires a staggering amount of resilience, a significant amount of support from loved ones and the community, and at least a little bit of luck.

Most Recent Comments

  • Re: Week That Was

    • The other worrisome one is the one with the email of 'zyklonwolf', which any historically…

    • on April 23, 2018
 

© 2018 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation