About 10 years ago, the justices of the Supreme Court took a good, hard look at the way politicians bend, tweak and manipulate electoral boundaries in order to protect themselves and punish their enemies — and threw in the towel. The Constitution, Justice Antonin Scalia wrote for a plurality in Vieth v. Jubelirer , does not provide “a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting.” In other words, politics is politics. It’s the court’s duty to decide what the law is, Scalia said, but sometimes the answer is that it is none of the court’s business. Scalia acknowledged that the Supreme Court had previously ruled otherwise. But “18 years of essentially pointless litigation” had convinced Scalia and others on the court that it was impossible to come up with a test to decide when partisan gerrymandering amounted to a constitutional violation. The political parties have been running through that green light ever since.
But a judge in Tallahassee has blown the whistle, and thrown Florida politics into turmoil. Judge Terry Lewis found that two of the state’s 27 congressional districts were unconstitutional and wants a new congressional redistricting plan drawn in time for November’s election.
Though the Supreme Court seemed to throw its hands up a decade ago, the ruling left states free to act on their own. And Florida voters in 2010 wrote a prohibition on partisan gerrymandering into the state constitution, which is what Lewis ruled the state’s Republican leaders violated with their plan.