Since at least 2004, when the Supreme Court rejected a challenge to Pennsylvania's congressional district boundaries because there was not a good enough way to quantify gerrymandering, the problem facing would-be reformers is this: How do you measure something that's best understood by how it affects other things?
Last year, reformers thought they had solved that conundrum. Armed with a new metric called the "Efficiency Gap"—a formula that claims to demonstrate how gerrymandering makes congressional races less competitive—they asked the Supreme Court to toss out Wisconsin's congressional map.
The court refused, emphatically. In a unanimous ruling, the nine justices agreed that the Supreme Court would not be responsible "for vindicating generalized partisan preferences." The court could, however, be interested in adjudicating specific cases of disenfranchisement as a result of unfairly drawn districts, Chief Justice John Roberts wrote at the time.
Enter Faulkner Fox, a plaintiff in League of Women Voters v. Rucho, a new gerrymandering case that will go before the Supreme Court this spring. Fox is a progressive activist from Durham, North Carolina, who says that state's unfair congressional districts have made her work "almost irrelevant."
In some ways, she's right. Despite being a purple state, Republicans have held 10 of North Carolina's 13 congressional seats since a GOP-controlled redistricting prior to the 2012 election. But again, that merely describes an effect of gerrymandering and not the thing itself.
By arguing that specific plaintiffs, like Fox, have had their political voices silenced by tilted congressional districts, reformers hope to give Roberts what he implicitly requested last year: specific cases of disenfranchisement.
Unfortunately, while trying to follow the roadmap outlined in his opinion, the League of Women Voters seems to have gotten a bit lost.
On its face, Fox's argument is unconvincing. Even if it could be proven that gerrymandering was uniquely to blame for the loss of her activist mojo, wouldn't any other activist on the losing side of an election have a similar claim? Any Republican in Philadelphia or Washington, D.C., knows the sting of irrelevant political work, but that doesn't mean the Supreme Court should step in.
This latest effort to get a high court ruling on gerrymandering would appear to move the debate further from objective, quantifiable judgments. Indeed, Fox's argument seems better suited to the arena of politics, not law. She should make her case to state policy makers, who ultimately control redistricting. States can and should reform district boundaries, either by setting new state-specific rules or by offloading the process to commissions that involve the public, as some states have done with mixed success.
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