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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Missed Opportunity of Vieth

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June 22, 2004

When the case of Vieth v. Jubelirer was pending before the U.S. Supreme Court earlier this year, some observers hoped that it would be an antidote for one of the most debilitating ailments to inflict American politics in recent years: the Hyperactive Gerrymander Syndrome. This malady is marked by two distinguishing features: first, the calculating use of increased computer power to determine exactly what district lines will give one political party the greatest possible electoral advantage over the other; and second, the redrawing of these district lines every year rather than every decade. The consequence of this disease is that American politics have become much more ideologically polarized and polemical than previously, with moderate swing voters unable to control the outcomes in most districts.

By a 5-4 vote, however, the Supreme Court refused to offer a remedy. Essentially, the Court said that it could discern no democratic principle for determining when a gerrymander might be impermissible. The Vieth plaintiffs had proposed a test that would require proof of two facts: first, that the redistricting was motivated primarily by the desire to keep one political party in power even when that party had lost its support from a majority of the voters; and, second, that the redistricting was effective in achieve this purpose, with the consequence that the majority of voters were unable to implement their will through the political process.

One would have thought that the basic democratic principle of majority rule would have been enough to convince the Court to adopt this test. But the Court professed that it knew no way to determine whether the intentional and successful frustration of majority rule had occurred. This professed ignorance is remarkable in light of the many parallels between the proposed test in Vieth and other areas of law. One such parallel was offered by Harvard professor Einer Elhauge, in "a friend of the court" brief, where he observed that this proposed test is the equivalent anti-monopolization rule for the operation of the political process that the Court has long enforced for economic markets through antitrust laws.

Vieth is a far cry from the 1964 decision of Reynolds v. Sims , where the Court articulated the one-person-one-vote principle in the face of naysayers who claimed that the Court had no business interfering with malapportioned legislatures, even when a city of a million citizens would receive the same amount of representation as a rural county of 10,000. The lesson of history is that the Court was right to intervene in Reynolds , reinvigorating political processes that had become incapable of self-correction. Forty years from now, Vieth will be viewed as a painful mistake, where the Court missed an easy opportunity to follow in the footsteps of Reynolds . A political process that has become so stricken by extreme gerrymandering that it is unable to heal itself democratically by the ordinary operation of majority rule requires judicial medicine to remove this cancer from the body politic.