This April, in the case of Vieth v. Jubelirer, the Supreme Court came close to burying any hope of curing one of the worst diseases in our ailing democracy–the partisan gerrymander. Finding a cure is still possible but like so much else, it depends on the upcoming election.

In a 4-1-4 decision, the Court let stand Pennsylvania’s 2002 Congressional redistricting, in which a state that is evenly divided between Republicans and Democrats was gerrymandered to elect twelve Republicans and seven Democrats to Congress. Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas argued that the courts shouldn’t touch partisan redistricting because there were no “judicially manageable standards” for unconstitutional discrimination; Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer disagreed and would have overturned the redistricting; Justice Anthony Kennedy, though unwilling to accept the dissenters’ suggested criteria, refused to abandon the quest for an acceptable rule and raised the possibility that the First Amendment prohibited discrimination against voters because of their political views and affiliation.

The Supreme Court first turned to partisan political gerrymandering in 1986. In Davis v. Bandemer, six Justices agreed that severe partisan political gerrymandering violated the equal protection clause of the Constitution. They could not, however, agree on a workable set of standards for deciding when it would be unconstitutional. Left largely on their own, the lower courts have since required challengers to a redistricting plan to show that it shut them out of the electoral process so completely that, as Justice Byron White’s plurality opinion put it, they couldn’t even “participate in party deliberations in the slating and nomination of candidates…[or] register and vote.”

Partisan gerrymandering isn’t intended to go that far. It is designed to nullify just enough opposition votes to enable a party to elect more candidates than its electoral strength would warrant. Because the Bandemer test is so unnecessarily stringent, not a single instance of political gerrymandering, no matter how egregious, has been struck down in the eighteen years since it was issued. Meanwhile, computer technology, voter polarization and a decline in ticket-splitting have made identifying and locating voters so easy that politicians can readily shape electoral outcomes [see Sasha Abramsky, “The Redistricting Wars,” December 29, 2003].

In Pennsylvania for example, the Republicans used a Carnegie-Mellon super-computer to “pack” most of the Democrats into a few districts where the Democrats already had solid majorities, “crack” the rest into districts that were safely Republican, and “pair” Democratic incumbents against each other to make up for Pennsylvania’s loss of two seats; just one weak Republican candidate unexpectedly lost. All nine Justices in the Vieth case did agree on the “incompatibility of severe partisan gerrymanders with democratic principles.” They apparently agreed also that the appropriate test for an unconstitutional political gerrymander required the challengers to show that those who drew up the redistricting intended to severely disadvantage the other side, and that the plan worked.

The agreement stopped there. Scalia, for the four conservatives, threw up a barrage of questions and comments to argue that courts could not come up with workable standards for deciding which intent and effects should be made illegal, how those issues could be proved and how to remedy the problem. The four dissenters responded with several options they considered workable.

Most of Scalia’s questions are bogus and have already been answered. Even under Bandemer, judges had no trouble finding the requisite intent. One reason is that politicians who gerrymander are not shy about it. In Illinois, a Democratic legislator declared, according to the Harvard Law Journal, “We are going to shove [this map] up your f—— ass and you are going to like it and I will f—— any Republican I can.” The Texas Republicans made no secret of what they were up to, nor did the Pennsylvanians.

There are also several well-established neutral districting principles, such as contiguity, compactness, community of interest among those in the district, and adherence to municipal and county lines. Where these are ignored and districts are shaped like dragons and snakes and wander all over the map, the purpose is almost always partisan advantage.

The real problem has been the the Bandemer ruling that for redistricting to be unconstitutional, it must result in the near-total exclusion of voters from the electoral process. Once that is abandoned, as all the Justices in Vieth agreed it should be, the problems become manageable. The new district maps usually reveal the intended and near-certain outcome. Remedies are not hard to find, including the appointment of an independent commission if need be, as in Iowa. Nor will the courts be overloaded with suits challenging severe partisan gerrymanders. These are possible only when one party commands all the branches of government, which doesn’t happen too often. The more common problem is the bipartisan gerrymander, designed to protect incumbents of both parties. But that was not involved in Vieth and raises different issues.

Many problems with our electoral system are not easily remedied, but this one can be. Thanks to Anthony Kennedy and the Court’s unanimous rejection of the Bandemer tests, lawyers and the lower courts can still attack severe partisan gerrymandering and now have a promising First Amendment approach. If President Bush is re-elected, however, and is able to appoint Justices like Scalia and Thomas, his favorites, that opportunity will evaporate.