Twice in the past six weeks the US Supreme Court has declined to enter the political thicket to resolve one of the thorniest problems confronting American democracy - how to redraw congressional districts.
In April, the court balked at offering clear constitutional guidance to state lawmakers in a Pennsylvania case. And on Monday it refused to take up a Colorado case examining the role of state courts in policing partisan gerrymandering.
Now, all eyes are on Texas and a case that could propel political gerrymandering to an entirely new level. "If the Texas case goes unreviewed, you can almost be certain that the Republicans will maintain control of the House of Representatives until 2010," says Nathaniel Persily, an election-law expert at the University of Pennsylvania Law School in Philadelphia.
In an era of technological advances that permit voting districts to be drawn and redrawn almost house to house within moments on computer screens, Republicans and Democrats at the state legislative level are becoming increasingly adept at organizing voters in clusters that favor one party over the other.
Such efforts suggest a level of political manipulation more befitting a dictatorship than President Lincoln's ideal of a government of and for the people. But at least so far, the US Supreme Court has been unwilling or unable to act.
In the Pennsylvania case, the high court examined whether partisan manipulation of voting districts could ever become so extreme and unfair as to violate the constitutional mandate of one person, one vote. In late April, the court announced that it was unable to answer that question, revealing that no more than four justices on the splintered court could agree on a common approach to the problem.
Their approach was to leave a highly partisan process to elected officials to resolve. Justice Anthony Kennedy gave force to this plurality opinion by providing some support for it, but he suggested that at some point a case might arise requiring court action to strike down an unconstitutional political gerrymander.
This week, the Supreme Court rejected a Colorado case in which they were asked to decide whether state courts in Colorado had usurped the legislative power of elected officials when they struck down the state legislature's redistricting plan in favor of a plan drawn by a judge.
The Colorado General Assembly wanted the US Supreme Court to take up the case and declare that the Colorado Supreme Court had violated a US constitutional requirement that the state "legislature," not a state court, must draw voting-district lines. Only three justices agreed with the position.
"There must be some limit on the state's ability to define lawmaking by excluding the legislature itself in favor of the courts," Chief Justice William Rehnquist writes in a dissent to the court's refusal to take up the Colorado case. His dissent was joined by Justices Antonin Scalia and Clarence Thomas.
The dissent has drawn scrutiny because similar reasoning was offered by the same three justices in Bush v. Gore, the case that ended and thus decided the 2000 presidential election.
"This is Bush v. Gore redux," says Richard Hasen, a law professor at Loyola Law School in Los Angeles. "This is not about Colorado redistricting. This is about whether the concurrence in Bush v. Gore is correct." Professor Hasen says it is significant that neither Justice Kennedy nor Justice Sandra Day O'Connor joined the Colorado dissent. "So nothing has changed," Hasen says.
But the high court's refusal to hear the Colorado case does not end the court's possible involvement in setting national rules for redistricting. Recently the justices asked for opposition briefs in a case from Texas that examines whether state lawmakers are permitted to draw new district lines only once every 10 years following the new census and apportionment of congressional seats, or whether lines can be redrawn as often as lawmakers choose.
Like the Colorado case, the Texas case involves an effort by the state Legislature to replace a judicially drafted redistricting plan with one drawn up by state lawmakers. But unlike Colorado, the case was litigated in the federal courts where judges agreed with the Legislature. Those newly drawn districts will be used for this year's election and are expected to produce seven more Republican members of Congress than are likely to have been elected had the court plan been used.
"The real issue is Texas," says Professor Persily. "If legislators are allowed to continuously redistrict throughout the decade, you are going to have no way of using elections to remove unpopular officeholders because the lines will be redrawn to ensure their reelection."
The stage is set for serious behind-the-scenes political brawls in key battleground states. Currently, Republicans control the redistricting process in Florida, Ohio, and Pennsylvania. Democrats control it in Michigan and Georgia.