Here's an important question raised by yesterday's election: Do the results vindicate the Supreme Court's reluctance to get involved in claims of partisan gerrymandering?
I have generally been skeptical of the Court's hands-off approach. If there is one situation in which courts are justified in reviewing the acts of a democratically-elected majority, it is when the majority has insulated itself from challenge by restricting the political process. But the Court has preferred to stay out of these cases, stating that it will strike down partisan gerrymanders only if they consistently degrade the influence of a group of voters over time. Several justices have gone further, arguing that the courts lack jurisdiction over these cases because there is no manageable standard by which to resolve them. The solution to partisan gerrymandering, these justices have suggested, is for voters to reject the officials who design them.
That always seemed naive to me, especially as politicians became more adept at the use of gerrymandering to create safe seats. But yesterday's results may lead me to rethink my views. Nineteen Republican incumbents in the House were voted out of office, leading to a substantial shift of power in Congress. Moreover, the Democrats made significant gains in state legislatures across the country and now control more state houses than the Republicans. This is important because state legislatures draw the districts for congressional elections. So if Democrats hold on to these gains until the next census, they will be in a position to redraw electoral districts in their favor.
Of course, partisan gerrymandering is still a serious problem. Although 19 House incumbents lost, scores more coasted to victory or faced no challenge at all. And in Texas, where Republicans implemented a controversial redistricting plan several years ago, only one seat changed hands -- that of Tom Delay, who orchestrated the plan. Still, the shift of power in Congress is a promising sign that the political process can still work and that voters will still hold accountable politicians who abuse their authority. Maybe the Court's approach is not so naive after all: give politicians enough rope and they will eventually hang themselves.