Thorny First Amendment questions with redistricting

Two of the cases at the Supreme Court this term involve redistricting. Can a state draw district lines in a way that favors the politically powerful party? Or are some districts so blatantly discriminatory that they violate the First Amendment. I don’t have fully formed views on Gill (Wisconsin) and Benisek (Maryland), but here are some initial thoughts.

First, there are difficult line-drawing problems with most cases. Yet the line-drawing problem in this case seem particularly challenging. As the Chief Justice noted during oral argument in Benisek, nearly everyone would agree that some degree of politics is acceptable in redistricting decisions. How political is too political? How is the Court supposed to police the line?

Second, there are quite a few things that alter voter efficacy. Wyoming and California both get two senators. Because there are more people in California, the average voter in California has less say on who gets elected than her counterpart in Wyoming. Under this system, some people’s vote matters more, yet few would say that this raises constitutional concerns.

On the other side, though, it seems that blatant forms of political redistricting call for redress. Consider a state with 100 residents — 30 Republicans and 70 Democrats. Could the state make a district for each Republican and just one for all 70 Democrats? Nor do the problems go away with proportional representation. If the state had a district for every 10 residents, a creative redistricting Republican-leaning commissioner could draw districts in a way to give the Republicans even numbers in the legislature despite being outnumbered 30 to 70. (Five districts with 10 Democrats; five districts with 6 Republicans and 4 Democrats). This seems like a classic political process failure that demands judicial intervention.

The redistricting cases are some of the hardest cases this term. We’ll see what the Court does before July.



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