Leave electoral fairness questions to the voters, not the courts

To almost no one’s surprise, on Monday the Supreme Court avoided ruling on the constitutionality of gerrymandering by state legislatures. By so doing, the Court avoided, at least for the time being, straying even more deeply into the political thicket of voting and representational equality first entered under Chief Justice Earl Warren in the 1960’s. Then the Court found that the 14th Amendment, adopted in the 1860’s after the Civil War, required that electoral districts be roughly equal in population. It held that if a state legislature created districts unequal in population, it denied its citizens “the equal protection of the law” guaranteed by the 14th Amendment.

{mosads}In this week’s case, plaintiffs argued that Wisconsin denied them equal protection by drawing district lines that favored one political party over another. That, of course, is the purpose of gerrymandering, a practice as old as the Constitution, named after a notably aggressive partisan electoral district line drawer, Elbridge Gerry, a delegate to the Constitutional Convention and signer of the Constitution.

That gerrymandering is as old as our Republic doesn’t mean it is right or fair. It isn’t. But not every wrong can be effectively remedied by a U.S. Supreme Court decision, and the court was right to sidestep an issue that is properly a matter of legislative rather than judicial jurisdiction.

First of all, political parties are diverse and shifting coalitions, and any district line that may benefit one party at one time may end up disadvantaging the same party at another. Not to mention the fact that many districts’ populations are hardly static from one re-districting to the next.

Second, partisan political gerrymandering isn’t the only kind of gerrymandering going on. For example, County Board member districts are often drawn to advantage rural voters over city voters, or vice versa. ln states like Wisconsin, County Boards are elected on a non-partisan ballot but this doesn’t mean the votes of city and of country residents are equal in determining County Board representation.

Third, equal representation on the basis of one person-one vote rests on the accuracy of the census. But census tallies can wildly distort voter representation since they count every person in a particular area even if they do not — or cannot — vote.  Those under 18, for example, can’t vote yet they are counted, to the relative disadvantage of communities with few children, like Sun City, Ariz. Prisoners generally cannot vote but are counted by the census, giving greater weight to voters who live nearby. The same is true when it comes to counting those who are undocumented and resident non-citizens. Residents of college towns may benefit if the census includes students in the town population total who are not eligible to vote there.

Rather than attempting a court-based solution to gerrymandering that will inevitably spawn more grievances than it resolves, I vote to leave the search for the Holy Grail of electoral fairness to the messy but more democratic legislative process.

Thomas E. Petri (R-Wis.) served in the House of Representatives from 1979-2015. He is a senior advisor to Council for a Strong America.