Have you ever really looked at a voting district map? Each voting district has seemingly random lines defining the district’s boundaries. But these lines are often the result of calculated decisions by the legislature--political gerrymandering.

Political gerrymandering1 occurs when the legislature controls the time, place, and manner of voting to create voting districts that artificially enhance the voting strength of one political party over another

The term “gerrymander” began in 1812 after Massachusetts’s governor Eldridge Gerry signed a voting district plan that created districts that resembled salamanders. Political gerrymandering continues to this day, sometimes more blatantly than others: “We are going to shove it [the map] up your f----- ass and you are going to like it, and I’ll f--- any Republican I can.”2

Both political parties engage in gerrymandering. A recent study found that, in 2002 Republicans captured 67% of the House seats in states where they controlled the redistricting process, even though two years earlier, President George Bush only received 51% of the popular vote in those states. By way of comparison, the same study estimated that Democrats captured 57% of House seats in the states where they controlled the redistricting process, despite Al Gore only receiving 51% of the popular vote in those states.3

With this evidence it is surprising that courts have been traditionally reluctant to address political gerrymandering and its Constitutional implications. All citizens must be permitted to participate equally in the election process.4

To ensure that a voting district complies with this requirement, two factors are considered. First, each voting district must have “substantial equality of population.” Second, the district lines must not be drawn in such a way as to invidiously dilute the voting strength of a particular political element of the voting population.5 Note, that Washington has enacted the Washington State Redistricting Act.6 The Act prohibits redistricting plans from being drawn purposely to favor or discriminate against any political party or group.7

The first requirement is fairly simple. Federal voting districts must be precisely equal in population, while state voting districts may deviate from strict equality requirements to effectual legitimate, rational state policies.8 Even with a rational basis for population inequality, there must be substantial equivalency.9 This requirement ensures that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.10

The second requirement, however, is more difficult to address. In Davis v. Band-emer,11 the Court stated, “the question is whether a particular group has been unconstitutionally denied its chance to effectively influence the political process.” But the Court held:

In a challenge to an individual district, this inquiry focuses on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate. Statewide, however, the inquiry centers on the voters’ direct or indirect influence on the elections of the state legislature as a whole. And, as in individual district cases, an equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.

This standard is incredibly difficult to meet, particularly if the majority of voters in a district are happy with the results of the election.

However, all of this may be made moot by the recent decision in Veith v. Judelirer.12 There, the Supreme Court held that all political gerrymandering cases are not justiciable, reasoning that there are not judicially discernible and manageable standards for determining whether such claims actually exist. The Court determined that it was simply too difficult to articulate a standard to measure the effect of a political gerrymander and, therefore, it is impossible to determine whether any constitutional violation exists.

The Veith decision removes political gerrymandering from the realm of judicial regulation and prevents the citizens from challenging the legislature’s redistricting decisions. So the question remains, does your vote really count?