A Standard District

The question before the Supreme Court in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland) isn’t really whether partisan gerrymandering is unconstitutional, but whether there is a standard they can set forth that will be effective. Such a standard does not explain how states should develop their districts, but only how to tell if they have not done their job with fidelity to the law.

The best fix, as usual, would be for states and congress to work the problem out. But given the problem is that we can’t elect moderate representation (due to gerrymandering), it quickly becomes a chicken-egg paradox.

Although there are various suggested standards to use, it is likely none of them are ideal enough for the members of the court who don’t want to have to go ten rounds on the subject. But that should not stop them from imposing an imperfect standard. There are plenty of instances where the court had to refine itself in case after case. And there is always the opportunity for interplay between the federal and state legislatures on the matter.

Consider tea. People add milk and sugar (or other sweeteners) to make it taste better. Some like tea stronger, some weaker. There is no perfect cup of tea. But when you order tea from a restaurant, or you buy a canister or bottle of tea from a vendor, they have normalized the tea. They are producing a product that, on average, will not be perfect tea for anybody, but will be acceptable tea for everybody.

Now, they could punt. They could rule per curiam and open the floodgates to hear challenges on every district until a standard is found. If they believe that these particular districts are unconstitutional, justice demands at least that.

But even that ruling must articulate a why that points to the future grounds where some standard would be built. The basic shape of partisan gerrymandering is non-compactness, is choosing to shift pockets of voters either to concentrate or dilute them. The standard, therefore, must be to the strength of the tea. Nobody buys watery tea, and nobody wants it too strong.

Thus, in comparing districts, they should each be tea and not tea concentrate and not water with tea flavor. If quality control lets a few stronger or weaker through, that’s tea for you. But if quality control misses the basic task, that violates the constitution. Toss it and the QC inspector in the harbor.