Court throws power to draw political districts to elected officials

In upholding Pennsylvania's district lines, the Supreme Court defines more precisely what is a viable challenge.

A sharply splintered US Supreme Court has set the stage for what will be one of the most politically bruising rounds of congressional redistricting ever.

In upholding a Pennsylvania redistricting plan that gives a clear advantage to Republican candidates in a state with an evenly split party registration, a four-judge plurality of the nation's highest court said it is up to elected political leaders - not judges - to determine how congressional election districts should be drawn.

But the court came one vote shy of barring judicial oversight in such cases. While the plurality justices declined to enter a political fray over highly partisan efforts to draw congressional districts that favor one party over another on election day, Justice Anthony Kennedy refused to go that far.

The Constitution does not provide "a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting," writes Justice Antonin Scalia, in the plurality decision joined by Chief Justice William Rehnquist, Justice Sandra Day O'Connor, and Justice Clarence Thomas.

The decision will do little to quell similar political brawls over congressional redistricting in Texas, Colorado, and Georgia. And it will likely spark more intense battles elsewhere, including efforts to redraw district lines every two years rather than the customary practice of every 10 years following the Census.

Political analysts say the ruling will only accelerate the trend toward noncompetitive races for congressional seats.

"It takes the ref off the field," says Norman Ornstein, a political scientist at the American Enterprise Institute. "What they've done with this opinion is to leave the floodgates open for a kind of process that ... has led to the destructive, acrimonious, partisan politics and frequent gridlock that we now have."

Jack Krill, the Harrisburg, Pa., lawyer who argued to uphold the Pennsylvania plan, said the decision should help reduce the litigation over redistricting after every Census. "Even though we didn't get a full majority..., the net result will be to put to rest claims of too much politics in what is essentially a political process," he says.

In reaching its decision, the four-justice plurality said it would overturn an 18-year high court precedent holding that, under certain circumstances, political gerrymandering could go too far by violating constitutional principles underlying the concept of one person, one vote. The plurality said the goal of achieving "fairness" had proved impossible for courts to enforce.

"Fairness is not a judicially manageable standard," Justice Scalia writes. "Some criterion more solid and more demonstrably met than that is necessary to enable state legislatures to discern the limits of their districting discretion, to meaningfully constrain the courts' discretion, and to win public acceptance for the courts' intrusion into a process that is the very foundation of democratic decisionmaking."

In a dissent, Justice John Paul Stevens calls the plurality's opinion "a failure of judicial will."

"The concept of equal justice under law requires the state to govern impartially," he writes. "Today's plurality opinion would exempt governing officials from that duty in the context of legislative redistricting and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification."

Justice Kennedy concurred in the judgment upholding the Pennsylvania plan, but refused to say that no role exists for judges in policing political gerrymanders. Justices David Souter, Stephen Breyer, and Stevens suggested possible standards that could be applied in gerrymandering cases. But no single set of standards was endorsed by a majority.

The decision stems from a challenge to redistricting plans in Pennsylvania in which Democrats complained that Republicans had locked up a majority of congressional districts by packing Democratic voters into a few heavily Democratic districts while spreading Republican districts more widely across the state.

The Democrats said the redistricting plan would guarantee Republican dominance of the congressional delegation for the next 10 years even if more Democrats than Republicans vote in congressional elections.

At issue in Vieth v. Jubelirer was whether such political gerrymandering violates constitutional principles.

The issue arises at a time when party officials are able to use sophisticated computer information to assemble election districts that favor their party and disadvantage political challengers.

The case was being closely watched because with the nation itself sharply divided between Democrats and Republicans, both parties are looking for any advantage over the other to gain or hold control of Congress.

Because of population shifts identified in the 2000 census, Pennsylvania was slated to lose two of its 21 congressional seats in the state's redistricting effort. In 2001, the state was represented in Congress by 11 Republicans and 10 Democrats.

But the 19 new districts were drawn in such a way as to give Republicans at least a 12-to-7 advantage over Democrats, even though there were more registered Democrats in Pennsylvania than Republicans.

Ultimately the courts upheld the redistricting plan, ruling that while the partisan gerrymandering used to redraw the district lines offered an advantage to Republicans, it did not "shut out" Democrats from the political process and thus could not be held a violation of constitutional principles.

• Linda Feldmann contributed to this report.