When the Supreme Court struck down the enhanced enforcement of the federal Voting Rights Act for nine states this week, liberals howled in protest. But it struck me that we're missing something in the conversation.
Consider what got the Texas Legislature in trouble under the extra Voting Rights Act scrutiny -- a tough new voter ID law and a congressional redistricting map that helped Republicans by diluting the influence of new Hispanic voters.
Then look at Pennsylvania.
Its Republican-led Legislature enacted a tough voter ID law, and in the first election after its redistricting, Pennsylvanians cast 75,000 more votes for Democratic congressional candidates than Republican ones, but Republicans won 13 of the state's 18 seats.
In both the Lone Star and Keystone states, I think these moves were mostly the result of partisan -- rather than racial or ethnic -- motivation, though steps like these do have impacts on minorities. What we have are examples of the party in power crafting rules and boundaries to maintain and increase their majorities.
And it occurs to me that what we need, apart from just some special standards for nine states on racial discrimination, are real standards for 50 states on partisan manipulation of the election process.
It seems axiomatic that rules for voting and legislative boundaries ought to be fair and nonpartisan, but that isn't the way the U.S. Supreme Court has seen it.
The Pennsylvania case
I knew who I wanted to call about this. Jessica Ring Amunson is a Washington-based attorney who worked on the last case that brought the issue of partisan -- as opposed to racial -- gerrymandering before the U.S. Supreme Court.
I asked her about the state of federal law on partisan gerrymanding.
"The status of the law on partisan gerrymandering, essentially, is that there is no law," Amunson said.
This state of affairs was established by the case Amunson worked on, arising from a challenge to the Pennsylvania congressional maps drawn after the 2000 census. The plaintiffs said the new boundaries clearly favored Republicans.
In a 5-to-4 ruling, the justices reversed a lower court and left the Pennsylvania map intact, saying that redistricting is an inherently political process, and while some level of partisan gerrymandering might violate the constitution, the court would let the Legislature's judgment stand on this one.
The issue has never been revisited by the high court. So, Amunson says, "because the Supreme Court has failed to meaningfully address partisan gerrymandering and articulate a standard for partisan gerrymandering claims, those claims are often fought out in the context of the Voting Rights Act."
So if the courts don't want to hear that a map favors Republicans or Democrats, you can make the case that it discriminates against minorities.
Before the court's ruling this week, the nine states under extra scrutiny had to get any changes in voting laws preapproved by the Justice Department or the courts. Now they'll have the same status as Pennsylvania -- if somebody thinks a change is unfair, they can hire lawyers and sue.
There is another side
Dominic Pileggi, a Chester County Republican who is majority leader of the Pennsylvania Senate, told me when I called him about the issue in November that those complaining about Pennsylvania's congressional maps have it wrong.
He said the courts understand that politics is a part of the process, and there's an explanation for why Republicans do a little better than their numbers here.
"I think it's a byproduct of the geography of Pennsylvania," he said. "Philadelphia is a very densely populated, heavily Democratic city."
Some academics and New York Times data analyst Nate Silver also say much of Democrats' underperformance in Congress is linked to the tendency of their voters to live in concentrated communities.
Amunson strongly disputes that, and says the court's failure to deal with partisan manipulation of the election process contributes to gridlock and hyperpartisanship in Congress.
Kevin Greenberg, a Philadelphia election lawyer who leans Democratic, took some issue with my supposition that what we're seeing in places such as Texas is more partisan manipulation than racial prejudice. My thinking is that legislators who enact voter ID laws and gerrymandered boundaries have more in common with Karl Rove and Tom DeLay than Bull Connor, that this is about securing Republican political advantage.
Greenberg said the two tendencies work together. He cited polling numbers on how many Republican voters believe the president is a Muslim, and cited a Mississippi case where local officials were clearly trying to keep a white, as opposed to Republican, majority in control.
And he said the court's ruling will have a profound impact by changing the playing field on this stuff. When the feds had to preapprove changes in voting laws in those states, he said, "a lot of stupid, purely, racially motivated ideas would be stopped in their tracks and wouldn't be adopted."
Now, he said, those in control can do what they want and it's up to minorities who feel they've been penalized to raise the funds and hire attorneys for legal challenges.
Greenberg also doesn't think it would be easy for any court to come up with a standard for partisan gerrymandering.
"I don't think the court can efficiently do that," Greenberg said. "I think what could be done, as states like Iowa and Arizona and now California are now tying to do, is to remove partisan officials from the process."
Amunson says that smarter, fairer process can be adopted -- and is appearing in some places. In Pennsylvania, congressional redistricting remains firmly in the hands of the Legislature.