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On the same day that the Supreme Court upheld most of the recent campaign finance reform laws, the justices heard oral argument in a Pennsylvania case that could set new rules for the drawing of congressional election districts. A group of Pennsylvania Democrats claim in the case that Republicans — who controlled the state House, Senate, and governor’s mansion in 2002 — abused their power by drawing districts with the goal of maximizing the number of Republicans elected to office and eliminating as many incumbent Democrats as possible. But lawyers representing the Republican lawmakers in Vieth v. Jubelirer, No. 02-1580, told the Supreme Court that there’s nothing wrong with partisan politics in redistricting decisions, and that the case should be dismissed as nonjusticiable because courts should not be in the business of reviewing legislative decisions. Arguing for the plaintiffs, attorney Paul Smith, a D.C. partner at Jenner & Block, said, “The people should be deciding who should be representing them in Congress — not the states.” Although Democrats outnumber Republicans in Pennsylvania by a slight margin, Smith said, the newly drawn congressional districts resulted in a state delegation of 12 Republicans and seven Democrats. Before redistricting, when Pennsylvania had 21 seats, Republicans held 11 and Democrats held 10. The new map also guaranteed that several Democratic incumbents would lose by pairing them in the same district, Smith wrote in his brief, but provided “safe seats” for every Republican incumbent, and created two open seats that were “custom designed to send particular Republican state senators to Washington.” Smith said he conceded that politics will always play a role in redistricting, but urged the Court to adopt new rules that would prohibit “the most extreme cases” of partisan gerrymandering. In his brief, Smith proposed a two-prong test requiring proof of both a discriminatory “intent” and “effects.” Under the intent prong, he argued, challengers of a redistricting plan would be required to show that “achieving partisan advantage was the predominant motivation” behind the plan. And under the effects prong, the challengers would have to prove that the plan “systematically ‘packs’ and ‘cracks’ one party’s voters” and would “consistently prevent that party from winning a majority of seats even if its candidates repeatedly earned a narrow majority of votes statewide.” But within the first few minutes of his remarks, Smith was peppered with skeptical questions and comments that suggested few of the justices were on his side. By the end of the hour-long argument, only one justice — John Paul Stevens — emerged as a strong supporter of Smith’s positions, with somewhat tepid support coming from Justices Anthony Kennedy and David Souter. “Maybe the way to go is to just stay hands off these things,” Justice Sandra Day O’Connor said early in the argument. Justice Antonin Scalia noted that Article I of the Constitution appears to give broad discretion to state legislatures in their redistricting tasks. And Justice Stephen Breyer asked, “How do we do it? How do your standards possibly work?” Smith insisted that the test he was proposing is a workable one and that experts who studied a state’s voting history could determine whether a redistricting plan was designed to severely disadvantage the party not in power. Chief Justice William Rehnquist was unimpressed, saying, “You’re just pulling this thing out of your hat, so to speak.” Smith said the House of Representatives “is supposed to be a mirror of the people,” but that the new Pennsylvania map guarantees that the party garnering the minority of the votes will nonetheless enjoy a majority of the state’s seats. Such a result, Smith said, violates the constitutional principle of majority rule. But several justices expressed skepticism about the accuracy of experts’ predictions of voter behavior, because a voter’s registration is no guarantee of which ballot the voter will cast. “I don’t see how we’re going to know in advance,” Breyer said. But Smith said courts are often required to draw election maps, and do so fairly. As a result, he said, judges are capable of looking at a map and saying whether it’s discriminatory. “Certainly you will suffer some discrimination — that’s just the way legislatures go at it,” Rehnquist said. Scalia added, “Is it so easy to say unfairly discriminatory?” Justice Ruth Bader Ginsburg noted that the Republicans were not alone in passing the redistricting plan, saying it “took quite a number of Democrat votes to get this through.” But Smith said that not a single Democrat in the Pennsylvania Senate had voted for the plan, and that some of the members of the state House were swayed by the five Pennsylvania Democrats in Congress who were “very happy” with their new districts. John Krill, a partner in the Harrisburg, Pa., office of Kirkpatrick & Lockhart, argued on behalf of state Senate President Pro Tem Robert Jubelirer and House Speaker John Perzel. Krill argued that Smith’s test requires judges to make choices that are “inappropriate for the judiciary to make.” The case, Krill said, is “impossible to prove and improper to probe.” Justice Stevens interrupted early on and asked Krill whether the Democrats would have a valid case if they could prove that the redistricting plan was “drafted for maximum partisan advantage.” “I don’t think that’s a question that should ever come to trial,” Krill said. Insisting on an answer, Stevens asked if such a partisan approach to redistricting is permissible. Krill said it was. Breyer asked if the case would be valid if the Democrats were able to show that, over time, the plan was resulting in the majority party’s winning a minority of the state’s seats in Congress. “That undermines democracy,” Breyer said. But Krill said the Court should look at its 1986 case in which the justices first held that a claim of partisan political gerrymandering is justiciable — and its aftermath. The case, Davis v. Bandemer, was brought by Indiana Democrats, he said, who lodged complaints similar to those of the Pennsylvania Democrats. History has shown that the Indiana Democrats were overstating their case, Krill said, because since losing the case they have managed to win races and take control in some election cycles. “In Indiana, control has flipped back and forth ever since,” Krill said. Although the high court rejected the claim in Bandemer, Krill argued that it nonetheless set a bad precedent by allowing the case to be heard at all. In his brief, Krill argued that, under the political question doctrine, redistricting is a fundamentally political question that courts must steer clear of. “Once it is determined that the Constitution invests a co-equal branch with final discretion of the issue presented, the judiciary’s role terminates,” Krill wrote. Justice Scalia appeared to agree, saying, “It doesn’t make sense to find something justiciable if we can’t possibly design a remedy.” But Justice Stevens said he believed the courts would not be forced to intrude into the legislative process since the intent behind redistricting plans can be analyzed in court on the basis of numerous criteria. If Democrats argue that a plan is purely partisan in its intent, Stevens said, lawyers could defend the plan in court by pointing to any neutral criteria, such as aiming for compactness, contiguity, or protecting incumbents in both parties. J. Bart DeLone, senior deputy Pennsylvania attorney general, argued that the Supreme Court should uphold the decision of the special three-judge panel that heard the case in Harrisburg because the Democrats did not meet the strict requirements of Bandemer, which essentially requires proof that a party was “shut out” of the political process. But DeLone also urged the justices to overturn Bandemer on the grounds that a political gerrymandering claim is simply not justiciable. In response to a question from Stevens, DeLone said there is nothing wrong with partisan motives on the part of a party that controls both houses and the governor’s office. “No political party is worth its salt if it’s not giving itself as much advantage as possible,” DeLone said. Shannon P. Duffy is the federal courts reporter at The Legal Intelligencer, the American Lawyer Media newspaper in Philadelphia.

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