As an election-law professor, the most common question I have received this past week is whether the Kentucky legislature's redistricting is unlawful.
"It is obvious that they drew the lines and moved incumbents to different districts for political reasons," people say. "Isn't that wrong?"
It may be wrong — but it is perfectly legal. Redistricting is an inherently political enterprise. No matter how a legislature draws lines, there will be political implications, because including some populations in one district or another can lead to differences come Election Day.
Given this, a majority of justices on the U.S. Supreme Court has held that claims for partisan gerrymandering are "political questions" that courts are ill-equipped to decide because they involve issues best suited for a legislature.
In cases from 2003 and 2006, five justices on the Supreme Court ruled that there are no judicially manageable standards for determining when considering politics in redistricting goes too far. The four dissenting justices offered various tests for when redistricting becomes too political.
Justice Anthony Kennedy, as a fifth vote joining the majority in the result, stated that although he could not conceive of a plausible standard that would be judicially manageable for those cases, he did not want to foreclose the possibility that one might be out there.
Therefore, the hurdle for plaintiffs who want to challenge Kentucky's redistricting as unlawful partisan gerrymandering is to come up with a standard that will satisfy Kennedy and the other four justices who were in the dissent. No matter what, redistricting decisions have political implications, so the key is to create a standard that identifies when political considerations go too far.
Otherwise, those who draw the lines are allowed to consider politics as much as they want in determining where to place districts.
But such is the result of having the legislature draw the districts, because lawmakers have an obvious incentive to create districts favorable to their side. This is why many states, such as California, have moved toward having an independent commission draw new lines.
Gov. Steve Beshear has floated this idea for the next redistricting cycle, and it is one that makes a lot of sense. If the courts will not step in to prevent blatantly partisan gerrymandering, then states should do what they can to remove politics from the picture by having an independent group complete the task.
It is impossible to eliminate all political considerations, even with an independent commission, but taking the process out of the hands of those who benefit directly is a good start.
Although there could be other possible legal challenges to Kentucky's redistricting, the most obvious — partisan gerrymandering — is probably unavailable. Until the Supreme Court adopts a standard for these kinds of claims, partisan gerrymandering remains the name of the game.