Votelaw, Edward Still's blog on law and politics

The Supreme Court has affirmed the decision in Vieth v. Jubelirer. The plaintiffs had claimed that the congressional redistricting plan adopted by the Pennsylvania General Assembly was a political gerrymander.

Here are excerpts from the syllabus:

Justice SCALIA, joined by THE CHIEF JUSTICE, JUSTICE O’CONNOR, and JUSTICE THOMAS, concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist.

JUSTICE KENNEDY, while agreeing that appellants’ complaint must be dismissed, concluded that all possibility of judicial relief should not be foreclosed in cases such as this because a limited and precise rationale may yet be found to correct an established constitutional violation.

More when I read the decision.

UPDATE: If you want a quick analysis of Vieth, take a look at Rick Hasen's "initial thoughts." As Rick says, Justice Kennedy's concurring opinion is generally to be considered the controlling authority. So, let's start with that opinion. Here are a few thoughts:

1. Would anyone who has read that tell me what the heck he decided, other than the appellants lose? Do you see a standard in that opinion? Is there anything to guide the lower courts in dealing with these political gerrymandering claims in the future?

2. Justice Kennedy says (p.3 of his opinion), "The ... parties have not shown us, and I have not been able to discovery, helpful discussions onthe principles of fair districting discussed in the annals of parliamentary or legislative bodies." Justice Kennedy probably does not count citizen initiatives as "parliamentary or legislative bodies," but he ought to take a look at Arizona's constitutional standards which require certain objective criteria be used (but note that the choice among those criteria can be quite subjective) and "to the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals."

3. As usual in discussions of the fairness of redistricting, Justice Kennedy ignores the elephant in the room. It is very hard to make a plan with winner-take-all voting into a "fair" plan -- just take a look at the problems Arizona has had. The Arizona Commission used a measure called AQD (a predictive measurement based on voting for certain statewide offices) and found the statewide spread to be 5.6% in favor of the Republicans. The plan just approved by the Independent Redistricting Commission and the Superior Court has 14 districts with a solid GOP majority, 9 with Democratic majorities, and 7 competitive districts. For the Democrats to win a proportionate share of the districts, they have to win the 9 with Democratic majorites and 5 of the 7 competitive districts. How likely do you think that will be? The answer, of course, is some form of proportional or choice voting. See the Center for Voting and Democracy website for a general, and many specific, explanations.