Redistricting and Recall

Campaign finance was not the only election issue decided by the Court.  In 2001, following the decennial census, most states redistricted their state legislatures as well as their congressional seats. In several states the losers in this redistricting went to court to try to block the plan, although most met with little success.  Only one case managed to get full Supreme Court review. The high court declined to review a lower court decision upholding the controversial Texas plan, which practically guaranteed Republicans control of the state's congressional delegation at the next election.

It also refused to hear an appeal from a lower court decision that voided the Democratic-controlled assembly's plan that favored rural and inner city areas (predominantly Democratic) at the expense of suburban areas around Atlanta (overwhelmingly Republican). A three-judge panel, frequently citing the Supreme Court's one-person, one-vote dictum, threw out the legislative plan, denouncing it as pure and simple gerrymandering to favor one party over the other.  It then produced a legislative map more favorable to the Republicans.  On appeal to the Supreme Court, eight of the justices voted not to hear the case, although not citing reasons why the lower court should be affirmed.  Only Justice Scalia dissented, saying he though the case had merits worth examining.

The decision left many questions unanswered.  First of all, the Court had in the past indicated the purely political reasons for drawing legislative districts would not be subject to Fourteenth Amendment standards.  (The two justices who in the past have held that partisan gerrymandering is unconstitutional, John Paul Stevens and Stephen Breyer, signed a concurring opinion saying they believed the plan drawn by the Georgia legislature did not meet constitutional standards.) The Court had also indicated that states could have up to a ten percent deviation in population among districts, a "safe harbor" that the lower court ruling seemed to take away.

On the same day that the Court handed down its decision upholding the campaign finance law, it hear oral argument in Vieth v. Jubelirer, a case challenging the Pennsylvania redistricting plan. A group of Pennsylvania Democrats claimed that the Republicans in control of the legislature 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 registered Democrats slightly outnumber Republicans in the state, the new map resulted in a state delegation to the House of Representatives of 12 Republicans and 7 Democrats.  Before the redistricting, when Pennsylvania had 21 seats, Republicans held eleven and the Democrats ten. The new map ensured that several Democratic incumbents would lose by pairing them in the same district, while at the same time providing safe seats for all the Republican incumbents.

Lawyers representing the lawmakers told the Court that there is nothing wrong with partisan politics in redistricting decisions, and that the case should be dismissed as nonjusticiable, because courts ought not to be involved in reviewing legislative decisions..

What worried many people is that with new census figures and computer ability, it is possible, as NPR's Nina Totenberg noted, to slice up states into "block by block, even house by house... [based on] party registration, previous voting patterns, income, charitable contributions, subjects of interest and even buying patterns of the people who live in these houses. The result is that the designer [of the plan] can tell with near certainty which way these voters will cast their ballots."  According to the American Civil Liberties Union, both parties have taken advantage of sophisticated software to gerrymander for their own benefit.  As a result, fewer than one in ten congressional districts in any given year are now considered competitive. "At this point," according to ACLU legal director Steven Shapiro, "elections are less a reflection of popular opinion than of legislative craftsmanship." But does this ability create a constitutional impediment to the resulting plan?

By a 5-4 vote, the Court said no, although it did not rule out future challenges to political gerrymandering. Speaking for the majority, Justice Antonin Scalia noted that political disputes over district boundaries date back to the eighteenth century, and that "it was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength." Scalia tried to overturn a 1986 decision, Davis v. Bandemer, that supported a claim against gerrymandering, but on that point he only had the votes of Chief Justice Rehnquist and Justices O'Connor and Thomas.  Justice Kennedy, who joined the rest of Scalia's opinion, wrote separately to say that while correcting district boundaries drawn for partisan reasons would "commit federal and state courts to unprecedented intervention in the American political process," the courts had to remain open to challenges to plans that might be unconstitutional.

In what was surely one of the more bizarre political happenings of the year, California voters recalled Governor Gray Davis, and at the same time chose former body-building champion and action movie actor Arnold Schwarzenegger to be the state's new governor. Between the time advocates of recall managed to get the requisite number of signatures to put the issue on a special ballot and the election itself in October, the nation was presented with a political and judicial carnival of the first order.

Recall, along with the initiative and referendum, was part of a package of tools adopted by many states during the Progressive Era, tools designed to make the political system more directly responsive to the will of the people.  Although initially aimed at ultra-conservative judges, recall could theoretically remove an unpopular governor from office.  In fact, in 1921 a group called the Independent Voters Association, after two years of campaigning, managed to recall Governor Lynn Joseph Frazier of North Dakota, along with Attorney General William Lemke, and John Hagan, who along with Frazier and Lemke made up the state's powerful Industrial Commission.  Aside from that instance, no governor had ever been removed from office by recall.

Davis, who just won re-election the year before, had run into a series of problems, including persistent power shortages.  Never a charismatic figure, by the summer of 2003 he may have been the most unpopular political figure in the state.  A petition to have him recalled easily gathered the necessary signatures, and some ninety or so "candidates" presented themselves as possible successors, including actor Gary Coleman and porn star Mary Carey. In the end most of the would-be governors left the field to Lieutenant Governor Cruz Bustamante, a Democrat, and Schwarzenneger, a Republican who is married to Maria Shriver of the Kennedy clan. The actor could not seem to make up his mind whether to run, and then on Jay Leno's "Tonight Show" announced he would.  In the ensuing election he won easily.

Before that could take place, however, Davis and others tried to nullify the recall and, failing that, cancel the election on the grounds that the old punch-card machinery in use by many of the counties violated the standards established in Bush v. Gore (2000). A panel of the Ninth Circuit Court of Appeals did, in fact, vote to delay the vote, but then the entire court, meeting en banc, allowed it to go forward.  Various appeals to the Supreme Court were all turned down.

Although Justice Ruth Bader Ginsburg, a dissenter in the 2000 case, told a law school audience in San Diego that Bush v. Gore was a "one of a kind case," and that she doubted that it would ever be cited as precedent, in fact the judges of the Ninth Circuit cited it repeatedly in their opinions on the recall.  

As the 2004 presidential election approached, both parties had clear memories of the Florida impasse and Bush v. Gore. With pundits and pollsters predicting that the race between President Bush and challenger John Kerry could be as close as the 2000 vote, both sides began lining up legal teams to go into court should there be problems with the balloting or recounts. In a program called Protect and Promote the Vote, the Democrats were lining up thousands of volunteer lawyers as poll watchers in hotly contested states, and they will be prepared to go to court immediately if they find any voting discrepancies or inappropriate behavior by state election officials. "We will have trial lawyers in every target state," said one member of the project. Another declared that "I never want to see the tragedy again that occurred in Florida."

The Republican project is called the 72-Hour Plan, because the last three days of a campaign are the most crucial. Although the GOP declined to go into details, it noted that it, too, would be ready to go to court if necessary.

And necessary it may be, since many states are still using outmoded voting machinery that is certain to create problems. Although Congress had set aside $2.3 billion to help states revamp their voting system, precious little of that money has actually been distributed.

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