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The Washington Post 

Supreme Court Upholds GOP Redistricting in Pennsylvania
By Charles Lane
April 29, 2004

A deeply divided Supreme Court yesterday upheld a redistricting plan that sought to give the Republican Party an edge in races for Pennsylvania's 19 congressional seats but refused to close the door on court challenges to such "partisan gerrymandering" in future cases.

A five-justice majority ruled that there is no objective way to determine whether the 2002 Pennsylvania redistricting plan, which a Republican-dominated state legislature devised and which produced GOP victories in 12 of the 19 districts, was so unduly influenced by politics that it denied Democrats their constitutional right of equal treatment under state law. As a result, the majority said, the court must bow out.

The Pennsylvania case had drawn the attention of politicians nationwide because it arose at a time of intense partisan debate over post-2000 Census redistricting plans in several states, including Texas -- where Democratic legislators temporarily fled the state in an ultimately failed attempt to block the Republican-controlled legislature from drawing new congressional districts that create a GOP-majority state delegation in the U.S. House. Appeals of Texas's new districts are pending.

No "judicially manageable standards for adjudicating political gerrymandering claims have emerged," Justice Antonin Scalia wrote in an opinion that was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas. Though a decision by the court in 1986 opened the door to court challenges against alleged partisan gerrymandering, Scalia wrote, the past 18 years of experience, in which no court has upheld such a challenge, shows that "political gerrymandering claims are nonjusticiable and that [the 1986 decision] was wrongly decided."

The fifth member of the majority, Justice Anthony M. Kennedy, agreed with Scalia that the Pennsylvania Democrats, who noted that the state now has a Republican-majority House delegation even though Democrats got most of the statewide vote for Congress, had failed to show how a court could decide that they had been the victims of unconstitutional gerrymandering.

But he said that did not mean a court could never figure out how much political gerrymandering is too much, and he refused to overrule the 1986 decision.

"I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases," he wrote.

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented, offering their views of how courts could formulate intelligible definitions of excessively partisan redistricting.

In his opinion, Stevens emphasized that, together with Kennedy, the dissenters formed a five-vote majority for the proposition that "political gerrymandering claims are justiciable," at least in theory.

He criticized Scalia for what he called "a failure of judicial will to condemn even the most blatant violations of a state legislature's fundamental duty to govern impartially."

Sixty-one Democratic Texas state representatives and five Democratic members of the U.S. House filed a friend-of-the-court brief noting that advances in computer technology have greatly enhanced the capabilities of would-be partisan redistricters, and urging the court to rein in what they called "an increasingly bare-knuckled and irregular process."

Other critics of the current redistricting process, such as the Brennan Center for Justice at New York University Law School and the American Civil Liberties Union, which also filed briefs in the case, charge that both parties are using computer-aided redistricting to entrench incumbent House members.

But yesterday's outcome, which left future lawsuits against political gerrymanders hanging on the theoretical possibility of winning Kennedy's vote, seemed to signal a shift of the debate from the courts to the political process.

"With the courts out of the picture, it is up to citizens and legislators to fix a redistricting process that in too many states has corroded democracy rather than serving it," Tom Gerety, executive director of the Brennan Center, said in a statement.

"The political gerrymandering claim is not legally dead, but it's on permanent life support," said Michael Carvin of the law firm Jones Day, who has represented Republicans in numerous redistricting cases. "There's no real-world theory [of redistricting that is unconstitutionally partisan] that this majority is going to accept. They are extraordinarily skeptical that any kind of political redistricting would violate the constitution."

But Sam Hirsch, who represented the Democratic plaintiffs in the Pennsylvania case, said that "the search for a standard goes on, but partisan gerrymanders remain subject to judicial attack. Today's decision is a warning shot to legislators who care more about partisan greed than democracy and majority rule."

The case is Vieth v. Jubelirer, No. 02-1580.

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