Gerrymandering goes to court: this fall the U.S. Supreme Court will consider a little known case that could change the way legislative and congressional districts are redrawn.

Rarely does such a potentially landmark court case get so little press. But most people outside of Pennsylvania have never heard of Veith vs. Jubilirer, which will likely be argued before the U.S. Supreme Court early next year. Observers say it could have the same force as a Class 5 hurricane, altering the landscape of state legislatures in a way not seen since Baker vs. Carr in 1962.

It is yet another in a long series of redistricting cases to make it to the high court in the past 10 years. If plaintiffs are successful, the days of gerrymandering legislative and congressional districts for partisan advantage may be numbered, and many district plans currently in place will come under swift legal attack.

On June 27, the last day before it recessed for the summer, the U.S. Supreme Court agreed to a hear on appeal a lawsuit charging that the Pennsylvania General Assembly unconstitutionally redrew the state's 19 U.S. House seats by producing a plan that put the Democratic party at an unfair advantage. The Pennsylvania plan for the 2002 congressional elections (that was slightly altered during the legislature's 2003 session) paired six Democratic incumbents in the same districts. Before that election, Republicans held 11 U.S. House seats, and Democrats had 10. The new plan resulted in 12 Republicans and 7 Democrats being elected. (Pennsylvania lost two seats in Congress through reapportionment following the 2000 census due to slow population growth.)

A group of Pennsylvania Democratic voters asked the Supreme Court to review whether the new congressional plan went too far in electing Republicans--was it an unconstitutional partisan gerrymander?

It has been 17 years since Davis vs. Bandemer, and no partisan gerrymander plans have been successfully challenged in any federal court. So why did the Supreme Court take this case when it seemed that Bandemer was a dead letter? Law professor and redistricting expert Nathaniel Persily from the University of Pennsylvania thinks it may have something to do with the headlines. "My guess is that the redistricting dramas in Texas and Colorado made some of the justices reconsider whether maybe they should get more involved in partisan gerrymandering cases."

The Colorado legislature adopted a new congressional plan in the waning days of its 2003 session to replace one that had been written by a federal court. Most observers agreed that the plan strengthened the prospects for Republicans to win more congressional seats. The new district lines are currently under court challenge.

At press time, the Texas Legislature is deadlocked over a proposed congressional redistricting plan to replace the one used in 2002. As was the case in Colorado, a federal court adopted the 2002 Texas congressional plan when the Legislature failed to enact one. Democratic lawmakers from Texas have twice left the state to prevent votes on the plan that could send more GOP candidates to Congress.

In the Pennsylvania case, the Supreme Court will be looking at whether it is ever possible to prove an unconstitutional gerrymander under the rules spelled out in Bandemer. The Court will also consider whether partisan goals must be balanced with traditional redistricting criteria, such as compactness of districts and preserving city and town boundaries. And does an egregious partisan gerrymander violate Article I of the U.S. Constitution by sending one political party's members to Congress even when that party consistently receives fewer total statewide votes?

Persily is skeptical that the Court will throw out the Pennsylvania plan. "Ultimately, I do not think they will strike down the Pennsylvania plan as unconstitutional," he says.

"In the event the Court gives teeth to the partisan gerrymandering cause of action, I suspect it will be open season on the 2002 plans. If the Court opens up the door, plaintiffs from both political parties will be running through," he says.

If the Supreme Court decides to wade further into the political thicket of redistricting by trying to limit partisan gerrymandering or even end it, legislatures could be fundamentally and dramatically altered. As every legislator knows, the political demographics of a district are a predominant factor in which party captures the seat. If the Court decides to limit gerrymandering, many districts could get far more competitive and running for re-election will never be the same.

Or the Court may find that the Constitution does not offer the protections being sought by Pennsylvania Democrats. In other words, the hurricane may head out to sea and fade away quietly. Keep an eye on the long range forecast.

GERRYMANDERING HAS LONG HISTORY

Most readers of State Legislatures are well acquainted with the term gerrymandering. It has been going on in North America for at least 300 years, and took its name from an 1812 legislative districting plan supported by Massachusetts Governor Elbridge Gerry. Painter Gilbert Stuart used the shape of one Massachusetts Senate district in Essex County to form the infamous dragon-like creature that a newspaper editor subsequently dubbed the "gerrymander." The district had been devised in order to elect Gerry's fellow Democrats at the expense of the Federalists. The plan worked, sending three Democrats to the Massachusetts Senate from Essex County when there had previously been none.

Gerrymandering was born and thrived unchallenged in the United States for almost 200 years until 1986 when the U.S. Supreme Court ruled in an Indiana legislative redistricting case, Davis vs. Bandemer, that partisan gerrymandering was "justiciable." In other words, federal courts could hear cases and consider whether a gerrymandered redistricting plan was an unacceptable intrusion on a voter's, or group of voters,' rights. However, the court set a standard for showing a violate gerrymander that proved to be unreachable.

Tim Storey is NCSL's redistricting expert.