Can the Supreme Court define political communities?

A court case on partisan gerrymandering will test if the justices want the courts, rather than voters, to define the identity of voting districts.

Actor and former California Governor Arnold Schwarzenegger speaks outside the Supreme Court Oct. 3 after oral arguments in the Gill v. Whitford case and to call for an end to partisan gerrymandering in electoral districts.

On Oct. 3, the Supreme Court heard oral arguments in a case that could produce the most important ruling of its term: Can a state legislature, dominated by one party, draw voting districts with the intent to ensure election victories for that party? 

From the questions asked by the justices, it is clear why the high court has long avoided a ruling that would put it in the business of deciding how legislators should group people into political communities. They differ widely on this core aspect of democracy.

The court has already ruled that states cannot create districts according to race, a negative bias that is clearly unconstitutional. But what is a “workable standard” to divide up voters using neutral or positive criteria, such as party affiliation, geographic proximity, school districts, employment patterns, or other shared interests?

The justices could again decline to rule on the common practice of partisan gerrymandering, as they have in the past. The courts may not be the best branch to define the intimate contours of each society in particular states. That could easily lead the high court to act as a referee in many disputes between Republicans and Democrats.

In a democracy, citizens retain the right to determine their collective identity by promoting candidates for office and then electing the ones that best define the common good. Some states let a “citizens commission” draw up districts using criteria such as the compactness of a district. But in most states, voters still prefer to elect legislators who draw the voting boundaries after each census.

At heart, elections are really an invitation for voters to confirm the bonds of community and imagine a different future together. “No society can survive,” writes British philosopher Roger Scruton, “if it cannot generate the ‘we’ of affirmation: the assertion of itself as entitled to its land and institutions.”

The ballot box is the best way for Americans to create and affirm their values – and determine how to draw voting districts. And those values should include a respect for the views of other citizens, a humility to listen, and an honoring of the democratic process. If more voters elected representatives with those values, the Supreme Court would not be faced with such a hard decision.

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