All Americans can agree with at least one simple truth: Politics is messy. The Supreme Court is finding out just how messy when wading into what Justice Felix Frankfurter called the “political thicket” of partisan gerrymandering.
Put bluntly, redistricting is, and always has been, a political act. Or to put it another way, as Justice Byron White did, redistricting is “intended to have substantial political consequences.”
What most observers of partisan gerrymandering do not recognize, is that there is not, has not, and will never be a purely principled way to prevent partisan influence in redistricting. The Founders knew, just as we know today, that if you assign a task to the political branches, political actors will act politically. This is fact. This is by design.
There is no principled way for the Supreme Court to decide the partisan gerrymandering cases before it without the justices themselves making policy and political choices that will largely benefit one party over another and deeply embroil the judiciary in every redistricting map.
In the vast majority of the U.S., Republican and Democratic voters are not distributed evenly, and do not remain politically consistent. If you draw districts that are compact, respect political boundaries and meet the other “neutral redistricting criteria” you will inevitably end up with a few districts that are heavily Democratic and a majority of districts that lean Republican, which is exactly what happened.
What a court would have to do to “fix” that “gerrymander” is to carve up the major population centers into something reminiscent of a pizza to create a “neutral map.” To see this in action simply look at the congressional districts near Chicago, drawn by Illinois’ Democratic machine, where Cook County has been carved into eleven districts when it could wholly contain seven. We only hope that the justices heed the advice of their forbearers and the Founders, and keep the judiciary out of this “political thicket.”
Jason Torchinsky, a partner at Holtzman Vogel Josefiak Torchinsky PLLC, is general counsel to the National Republican Redistricting Trust.
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