High Court Revives Political Remapping Case

In a surprise move, the U.S. Supreme Court announced Monday that it would take another look at a claim by California Republicans that the Democrats have unconstitutionally gerrymandered the boundaries of the state’s 45 congressional districts.

On Oct. 3, this long-running case seemed to have died a quiet death. That was the day the high court dismissed the Republicans’ appeal “for want of jurisdiction.”

But on Monday, the high court granted “a petition for rehearing.” The announcement means only that the justices will again discuss the California case--probably in early January--and decide then whether to hear it.

Since 1983, the Republicans have been complaining that the zig-zag boundary lines drawn up by the late Rep. Phillip Burton (D-San Francisco) lumped Republicans into a few districts and preserved a majority of seats for Democrats. Though about half of Californians vote for Republican representatives, the Democrats hold a 27-18 advantage in the state’s congressional delegation.

But in April, a three-judge panel in San Francisco, on a 2-1 vote, dismissed the Republicans’ suit without a trial. Judge Cecil Poole, a Democratic appointee to the bench, said that the Republicans were not “shut out” of the political process and, therefore, had no basis for challenging the 1983 redistricting. The dissenter, Judge Robert H. Schnacke, a Republican appointee, said he would file a written dissent but did not.

When the case came to the Supreme Court, attorneys for the Democrats pointed out that the lower court opinion was not final because Schnacke’s dissent was missing. Because of that procedural defect, the high court may have chosen to ignore the case.

However, on Oct. 11, Schnacke filed a two-page dissent in the case. If the Burton plan is left intact, Schnacke wrote, “we can anticipate that reapportionment plans universally will be drawn to secure decade-long terms for favored representatives through the 1990s and thereafter. In my view, this is a sufficiently serious concern to require intervention by the federal courts.”

With Schnacke’s belated dissent in hand, attorneys for the Republicans asked the justices to reconsider their dismissal.

“It made my day,” said Washington lawyer Michael A. Hess, representing the Republicans, of the court’s announcement. He added that he now believes that there is “a strong possibility” that the high court will enter the case (Badham vs. Eu, 87-1818).

Looking to the 1990 census and the subsequent reapportionments in California and elsewhere, the Republicans are anxious to have the high court declare the Burton plan unfair and unconstitutional. “State legislators are going to be looking at this (Burton plan) as either a blueprint for the 1990s or a warning,” Hess said.

Kathleen Purcell, a San Francisco lawyer representing the Democrats, said that she did not consider the court’s announcement as particularly meaningful. “I don’t make anything much out of it. I think there is a fair likelihood they will consider again with the same result,” she said.

Throughout the court battle, the Democrats have argued that the drawing of district boundaries involves a fundamentally political dispute that should be settled by politicians, not judges.

In 1986, the Supreme Court ruled for the first time that courts could enter disputes over alleged gerrymandering, but the justices failed to set clear rules for deciding what is constitutional. The high court opinion said only that a redistricting plan that “consistently degrades” the opposition is unconstitutional.

In October, Justices Byron R. White and John Paul Stevens voted to hear the California dispute, but it takes at least four votes to schedule a case for argument.