The Supreme Court just handed down its opinion in the Pennsylvania redistricting case (Vieth v. Jubelirer). Surprise, surprise: it is a 5-4 decision (actually a 4-1-4 opinion)which helps Republican electoral prospects. The Court (Scalia writing, joined by Rehnquist, Thomas, and O'Connor, with Kennedy concurring) overruled Davis v. Vandemer which had held that there is a cause of action for extreme political gerrymandering. The Court today says nope.
Bottom line: while winning this case was always the longest of longshots, even with an honest broker Court, the Court went beyond what they had to do to defeat the claim (i.e. say "you haven't met the strict Davis test so you lose") to eliminate all judicial redress for gerrymandering. Therefore, it is now critical that the Dems retake the state legislatures in Florida, Pennsylvania, Michigan, and Ohio or get those states to district via an independent commission.
The excerpts provided are as follows: (sorry I don't know how to use the gray box)
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. They would therefore overrule Davis v.
Bandemer, 478 U. S. 109, in which this Court held that political
gerrymandering claims are justiciable, but could not agree upon a standard
for assessing political gerrymandering claims. Pp. 4_37.
(a) Political gerrymanders existed in colonial times and continued through
the framing. The Framers provided a remedy for the problem: the
Constitution gives state legislatures the initial power to draw federal
election districts, but authorizes Congress to 'make or alter' those
districts. U. S. Const., Art. I, §4. In Bandemer, the Court held that the
Equal Protection Clause also grants judges the power_and dutyto control
that practice. Pp. 4_7.
(b) Neither Art. I, §2 or §4, nor the Equal Protection Clause, provides a
judicially enforceable limit on the political considerations that the
States and Congress may take into account when districting. Pp. 7_37.
(1) Among the tests for determining the existence of a 'nonjusticiable' or
'political' question is a lack of judicially discoverable and manageable
standards for resolving the question. Baker v. Carr, 369 U. S. 186, 217.
Because the Bandemer Court was 'not persuaded' that there are no such
standards for deciding political gerrymandering cases, 478 U. S., at 123,
such cases were justiciable. However, the six_Justice majority in Bandemer
could not discern what the standards might be. For the past 18 years, the
lower courts have simply applied the Bandemer plurality's standard, almost
invariably producing the same result as would have obtained had the
question been nonjusticiable: judicial intervention has been refused.
Eighteen years of judicial effort with virtually nothing to show for it
justifies revisiting whether the standard promised by Bandemer exists. Pp.
7_11.
(2) The Bandemer plurality's standard
that a political gerrymandering
claim can succeed only where the plaintiffs show 'both intentional
discrimination against an identifiable political group and an actual
discriminatory effect on that group,' 478 U. S., at 127has proved
unmanageable in application. Because that standard was misguided when
proposed, has not been improved in subsequent application, and is not even
defended by the appellants in this Court, it should not be affirmed as a
constitutional requirement. Pp. 11_14.
(3) Appellants' proposed two_pronged standard based on Art. I, §2, and the
Equal Protection Clause is neither discernible nor manageable. Appellants
are mistaken when they contend that their intent prong ('predominant
intent') is no different from that which this Court has applied in racial
gerrymandering cases. In those cases, the predominant intent test is
applied to the challenged district in which the plaintiffs voted, see,
e.g., Miller v. Johnson, 515 U. S. 900, whereas here appellants assert
that their test is satisfied only when partisan advantage was the
predominant motivation behind the entire statewide plan. Vague as a
predominant_motivation test might be when used to evaluate single
districts, it all but evaporates when applied statewide. For this and
other reasons, the racial gerrymandering cases provide no comfort. The
effects prong of appellants' proposal requires (1) that the plaintiffs
show that the rival party's voters are systematically 'packed' or
'cracked'; and (2) that the court be persuaded from the totality of the
circumstances that the map can thwart the plaintiffs' ability to translate
a majority of votes into a majority of seats. This standard is not
discernible because the Constitution provides no right to proportional
representation. Even were the standard discernible, it is not judicially
manageable. There is no effective way to ascertain a party's majority
status, and, in any event, majority status in statewide races does not
establish majority status for particular district contests. Moreover, even
if a majority party could be identified, it would be impossible to assure
that it won a majority of seats unless the States' traditional election
structures were radically revised. Pp. 14_21.
(4) For many of the same reasons, Justice Powell's Bandemer standard
a
totality_of_the_circumstances analysis that evaluates districts with an
eye to ascertaining whether the particular gerrymander is not 'fair'_must
also be rejected. 'Fairness' is not a judicially manageable standard. 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. Pp. 21_22.
(c) Writing separately in dissent, JUSTICES STEVENS, SOUTER, and BREYER
each propose a different standard for adjudicating political
gerrymandering claims. These proposed standards each have their own
deficiencies, but additionally fail for reasons identified with respect to
the standards proposed by appellants and those proposed in Bandemer.
JUSTICE KENNEDY concurs in the judgment, recognizing that there are no
existing manageable standards for measuring whether a political
gerrymander burdens the representational rights of a party's voters. Pp.
22_37.
(d) Stare decisis does not require that Bandemer be allowed to stand.
Stare decisis claims are at their weakest with respect to a decision
interpreting the Constitution, particularly where there has been no
reliance on that decision. P. 37.
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.
Courts confront two obstacles when presented with a claim of injury from
partisan gerrymandering. First is the lack of comprehensive and neutral
principles for drawing electoral boundaries. No substantive definition of
fairness in districting commands general assent. Second is the absence of
rules to limit and confine judicial intervention. That courts can grant
relief in districting cases involving race does not answer the need for
fairness principles, since those cases involve sorting permissible
districting classifications from impermissible ones. Politics is a
different matter. Gaffney v. Cummings, 412 U. S. 735. A determination that
a gerrymander violates the law must rest on something more than the
conclusion that political classifications were applied. It must rest
instead on a conclusion that the classifications, though generally
permissible, were applied in an invidious manner or in a way unrelated to
any legitimate legislative objective. The object of districting is to
establish 'fair and effective representation for all citizens.' Reynolds
v. Sims, 377 U. S. 533. It might seem that courts could determine, by the
exercise of their judgment, whether political classifications are related
to this object or instead burden representational rights. The lack,
however, of any agreed upon model of fair and effective representation
makes the analysis difficult. With no agreed upon substantive principles
of fair districting, there is no basis on which to define clear,
manageable, and politically neutral standards for measuring the burden a
given partisan classification imposes on representational rights. Suitable
standards for measuring this burden are critical to our intervention. In
this case, the plurality convincingly demonstrates that the standards
proposed in Davis v. Bandemer, 478 U. S. 109, by the parties here, and by
the dissents are either unmanageable or inconsistent with precedent, or
both. There are, then, weighty arguments for holding cases like these to
be nonjusticiable. However, they are not so compelling that they require
the Court now to bar all future partisan gerrymandering claims. Baker v.
Carr, 369 U. S. 186, makes clear that the more abstract standards that
guide analysis of all Fourteenth Amendment claims suffice to assure
justiciability of claims like these. That a workable standard for
measuring a gerrymander's burden on representational rights has not yet
emerged does not mean that none will emerge in the future. The Court
should adjudicate only what is in the case before it. In this case, absent
a standard by which to measure the burden appellants claim has been
imposed on their representational rights, appellants' evidence at best
demonstrates only that the legislature adopted political classifications.
That describes no constitutional flaw under the governing Fourteenth
Amendment standard. Gaffney, 412 U. S., at 752. While the equal protection
standard continues to govern such cases, the First Amendment may prove to
offer a sounder and more prudential basis for judicial intervention in
political gerrymandering cases. First Amendment analysis does not dwell on
whether a generally permissible classification has been used for an
impermissible purpose, but concentrates on whether the legislation burdens
the representational rights of the complaining party's voters for reasons
of ideology, beliefs, or political association. That analysis allows a
pragmatic or functional assessment that accords some latitude to the
States. See, e.g., Eu v. San Francisco County Democratic Central Comm.,
489 U. S. 214. Pp. 1_13.
SCALIA, J., announced the judgment of the Court and delivered an opinion,
in which REHNQUIST, C. J., and O'CONNOR and THOMAS, JJ., joined. KENNEDY,
J., filed an opinion concurring in the judgment. STEVENS, J., filed a
dissenting opinion. SOUTER, J., filed a dissenting opinion, in which
GINSBURG, J., joined. BREYER, J., filed a dissenting opinion.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA