The Living Constitution: Gerrymandering

You might think that “one man, one vote” is a venerable constitutional principle, but you would be wrong; it only dates back to the 1962 Supreme Court decision of Baker v. Carr. In Baker, a majority of the Court held that voting district boundaries which overwhelmingly favored rural over urban interests as a result of population shifts in the state of Tennessee could be reviewed as a violation of equal protection. The dissenters argued that the Court was essentially trying to create a remedy in a purely political field in which there were no agreed-upon neutral standards based on historical practice. The decision might well have been different if Tennessee had provided some sort of direct democracy remedy for the aggrieved urban residents, but it did not, so the system would likely have been self-perpetuating for the indefinite future in the absence of judicial action.

Today, we are in a very analogous situation with gerrymandering. Litigation is bubbling its way up through the system, and the Supreme Court is bound to decide one of the cases sooner or later. Will we get a Baker v. Carr for the 21st century?

I very much doubt it, and not just because the Court has a right-wing majority. Boundary issues are very complex, and are best addressed by bipartisan commissions and standards created through legislation. Democrats and Republicans alike have had some success modifying egregious systems through referenda in several states. There is no historical basis for saying that the Founding Fathers were appalled by gerrymandering; after all, Gerry himself, as I recall, was one of them. The legislative history of the Fourteenth Amendment doesn’t include any references to gerrymandering. As a result, don’t look for any revolutionary changes in the jurisprudence on this issue in the foreseeable future.