Editorial | No decision in map-drawing fight

Editorial | No decision in map-drawing fight

Sometimes, the most significant rulings the U.S. Supreme Court makes are its non-rulings.

For the second time in a month, the U.S. Supreme Court has confronted major constitutional issues by deciding the case before them while punting on the key question presented to them.

Earlier this month, the court settled the gay marriage cake case by deciding that the deeply religious owner of a Denver bakery who refused to create a wedding case for a same-sex couple had been shabbily treated by the Colorado Human Rights Commission. The baker won the case even as the court declined to settle the question of whether a baker could be compelled by law to create the cake.

On Monday, the high court took similar evasive action on the question of the constitutionality of legislative gerrymandering. It held that a group of Wisconsin Democrats who objected to Republican-drawn state legislative maps lacked the legal standing to sue because they had not shown they were injured by the partisan map drawing.

So while the issue remains alive in the Wisconsin federal courts, so do the Republican-drawn maps. The court also declined to decide a similar case from Maryland, where Republicans alleged that Democrats unconstitutionally gerrymandered a congressional district to gain a political advantage.

The court's decision highlights two key issues that it has confronted on the gerrymandering question.

For starters, is gerrymandering — the practice of the majority party drawing legislative map lines in ways that give it a political advantage — unconstitutional? Politicians have been drawing legislative districts to give themselves an advantage since the early days of the republic. It's certainly obnoxious, the motivating theory being that to the victor go the spoils.

But unconstitutional? That's a difficult argument to make.

Further, if it is unconstitutional, what's the solution?

It seems clear that Justice Anthony Kennedy — the swing judge on the nine-member court — would like to rule the practice out of legal bounds. But he's understandably paralyzed by the duty of coming up with an effective judicially imposed solution.

A panel of district judges in Wisconsin was sold on the idea of something called the "efficiency gap," meaning that each political party is entitled to win roughly the same percentage of legislative seats that is reflected by its statewide vote total.

But treating district elections as if they are really at-large elections represents an unworkable inconsistency, a cure potentially far worse than the disease.

Gerrymandering is a bipartisan tradition — Ds do it to the Rs when they have the chance and vice versa. That's why the political reality is that Democrats and Republicans are far more offended by gerrymandering done by the other party.

Many Democrats in Illinois are thrilled to have House Speaker Michael Madigan draw map lines that give his party large permanent majorities in the state House and Senate.

Similarly, Wisconsin Republicans aren't crying themselves to sleep at night over concerns that Democrats are under-represented in the GOP-controlled state Legislature.

In neither case are voters outraged by the political gamesmanship involved, although citizens across the country have indicated they'd prefer a bipartisan solution to this extremely partisan problem.

The best solution would be for the people and the legislators in the various states, not the courts, to settle this problem of democracy by democratic means — either legislatively or through amendments to state constitutions.

Some states, most recently Ohio, have passed ballot questions to de-politicize the issue by assigning redistricting authority to bipartisan commissions. Others, like Iowa, have addressed the question with legislative reforms that generate more competitive elections and give voters greater choice.

Iowans, for example, simply take it for granted that their congressional and state legislative districts will be drawn in an above-board manner. At the same time, Illinoisans take it for granted that the self-serving politicians who run this state will look out for their own, not the public's, interests in all issues, especially redistricting.

The Wisconsin case created the possibility that the Supreme Court would change the rules of the game. Democrats there will have to conjure up a new argument that will allow them to return to the Supreme Court for a second bite of the apple.

In the meantime, the status quo in states like Illinois and Wisconsin remain undisturbed, although in desperate need of revisions that allow citizens to elect their legislators and disallow the current practice of authorizing legislators to select their constituents.

Sections (2):Editorials, Opinion