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The U.S. Supreme Court yesterday rejected a challenge to Pennsylvania’s newly drawn congressional boundaries brought by Democrats who claimed that Republicans abused their power in the redistricting process by setting out to maximize GOP wins and eliminate as many Democratic incumbents as possible.

But with its splintered opinions in Vieth v. Jubelirer, the high court didn’t go as far as Republicans had asked because it left the door open to future claims of “partisan gerrymandering.”

Five of the justices wrote opinions, totaling 110 pages, none of which commanded a majority.

A plurality of four led by Justice Antonin Scalia said they would have dismissed the case on the grounds that such claims are “non-justiciable” because “no judicially discernible and manageable standards for adjudicating such claims exist.”

Scalia, who was joined by Chief Justice William H. Rehnquist, Sandra Day O’Connor and Clarence Thomas, said the court should overturn its 1986 decision in Davis v. Bandemer in which the justices first held that a claim of partisan political gerrymandering is justiciable.

Four dissenters, in three separate opinions, said they would have revived the case. Each of the three dissents proposed different standards to be used by the lower court.

Justice Anthony Kennedy provided the swing vote, saying that he rejected Scalia’s call to overturn Bandemer and therefore sided with the dissenters on the threshold issue of justiciability but that he sided with Scalia and the plurality on the court’s ultimate conclusion that the case should be dismissed.

Kennedy said he agreed that there are “weighty arguments” for rejecting partisan gerrymandering claims as non-justiciable, and said “those arguments may prevail in the long run.”

But Kennedy said the arguments “are not so compelling that they require us now to bar all future claims.”

In the suit, a group of Pennsylvania Democrats claimed that Republicans – who controlled both houses of the Legislature and the 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.

Although Democrats outnumber Republicans in Pennsylvania by a slight margin, the suit 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.

Plaintiffs’ attorney Paul M. Smith of Jenner & Block argued in his brief that the new map also guaranteed that several Democratic incumbents would lose by pairing them in the same district 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 argued that lower courts have struggled with the Bandemer decision because it set too strict a standard – one that essentially requires proof that one party was “shut out” of the political process. He urged the court to adopt new rules that would prohibit “the most extreme cases” of partisan gerrymandering.

But Scalia said he drew a different conclusion about the difficulty lower courts have had in applying Bandemer.

“Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims,” Scalia wrote.

“No judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are non-justiciable and that Bandemer was wrongly decided.”

In dissent, Justice John Paul Stevens criticized Scalia for ignoring a long line of cases that recognized that the courts have the power and ability to rectify illegal gerrymandering and that Scalia failed to show why the court should overturn Bandemer and thereby single out political gerrymandering as non-justiciable.

“State action that discriminates against a political minority for t he sole and unadorned purpose of maximizing the power of the majority plainly violates the decisionmaker’s duty to remain impartial,” Stevens wrote.

“The critical issue in both racial and political gerrymandering cases is the same: whether a single non-neutral criterion controlled the districting process to such an extent that the Constitution was offended,” Stevens wrote.

The “danger of a partisan gerrymander,” Stevens said, “is that the representative will perceive that the people who put her in power are those who drew the map, rather than those who cast ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all.”

The problem, Stevens said, “is that the will of the cartographers rather than the will of the people will govern.”

Stevens said he believes the court’s decisions in racial gerrymandering cases “supply a judicially manageable standard for determining when partisanship, like race, has played too great of a role in the districting process.”

Race “can be a factor,” Stevens said, “but cannot dictate the outcome of the districting process.”

If the Democratic plaintiffs are correct that the “sole justification” for the “bizarre” shape of at least one of Pennsylvania’s districts was to “discriminate against a political
minority,” Stevens said, “that invidious purpose should invalidate the district.”

Professor Richard Hasen of Loyola Law School said the ruling is bad news for Democrats in Texas and others who want to pursue political gerrymandering cases.

“It was already extremely difficult. Now it is even more difficult, because you have four justices saying the door is completely closed,” Hasen said.

Several appeals over new Texas boundaries are pending at the Supreme Court.

The Associated Press contributed to this report.

(Copies of the 110-page opinion in Vieth v. Jubelirer, PICS No. 04-0670, are available from The Legal Intelligencer. Please refer to the order form on Page 7.)

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