The dog ate my congressional district

About 160 miles away, a two and a half hour drive, is Garrett County, Md. The median home there costs $169,000. Less than one in five adults has a bachelor’s degree. It’s rural, and it would be accurate to call it Appalachia.

So what does Garrett County have in common with these most affluent parts of Bethesda and Potomac? Nothing — except a creative act of geometry that has drawn them into the same congressional district. It’s part of a grander scheme concocted by Democrats in the state to make sure there will never be more than one Republican representing a congressional seat in the state. Adjacent to that district is the one that extends from the Village of Chevy Chase, which abuts the District of Columbia and has an average home value of $1.5 million, all the way to rural Pennsylvania.

Those districts are weird enough, but they are actually two of the more normally shaped districts. The third district is technically all contiguous, but some parts of it can only connect to other parts of it by boat.

There’s an area just outside the Beltway where you can cross through four congressional districts during a 20-minute walk. At that point, a wart on the back of the 8th District sticks into the tail of the Baltimore-based 7th District, alongside a narrow isthmus connecting the two totally separate parts of the 4th District, right next to the northern proboscis of the 5th District, which in turn stretches two hours south to the mouth of the Potomac.

In other words, Maryland’s map is an abomination, worse than any other state’s in America, which is why some Republican voters sued. Almost any map randomly drawn by a child who had dipped his or her fingers into a pot of paint would be better than the one in place now. But the point here isn’t that there’s a good way to draw the map, although there are clearly better ways that have been devised in Maryland. The point is that legislatures have the power to draw the district lines — they always have — and they must retain that power if the rule of law is to be respected until Maryland changes its law or constitution.

We would like to see legislators in all 50 states adopt new rules that limit how much one party can skew the redistricting process to their benefit. Some already forbid the splitting of counties except where unavoidable. Some create specific standards for compactness and for keeping communities of interest together. Many states have even adopted constitutional amendments that place the whole process in the hands of a nonpartisan commission, although as Arizona’s experience demonstrates, this doesn’t guarantee a fair outcome.

But this issue is entirely one for each state’s legislature, and thus for voters. No court, especially no federal court, should ever force a state legislature to enact such rules to predetermine a partisan election result that judges decide would be “fair.” This would be worse than having courts tell legislatures to adopt particular tax rates or a speed limits on their roads. It is a form of the judicial tyranny that has overturned so many democratic decisions on flimsy or nonexistent legal grounds, creating widespread distrust in our legal system.

In Pennsylvania, an elected, partisan Democratic court has made a partisan ruling to help Democrats by redrawing the congressional map. The pearl in the dung heap of that process is that the court was at least a state court taking that action under what it claimed were state rules. If Keystone State voters don’t like it, they can vote for new judges next time. But if federal courts start imposing arbitrary redistricting rules designed to help Democrats — that is the aim of most current litigation on this subject, including a separate Supreme Court case argued in October — then they will be acting without any sanction from the federal Constitution.

The Constitution plays a critical role in racial fairness, and this is why courts at times intervene where maps might diminish one racial group’s political power. But the Constitution clearly offers no basis for claiming that excessive partisanship is in and of itself unconstitutional. The Constitution does not even mention political parties or the concept of partisanship. To assert that either party or any voter has a right to a particular partisan election outcome, or that the Constitution has anything to say about partisan outcomes, is fabricated whole cloth from thin air.

This is especially true of legal theories that invoke the so-called “efficiency gap.” By this standard, some votes are deemed “wasted” because they don’t help a party win any seats. But this is a backward way of looking at elections. It assumes, incorrectly, that a vote for one member of a party is equivalent to a vote for any member of that same party, which is not true. It also assumes that voters for each party can simply be counted up before an election based on previous voting, with the aim of deciding what range of outcomes is fair. This would render elections unnecessary in the first place.

Gerrymandering is massively overrated as a problem, both in its power to determine election outcomes in the House and in its effect on the national political climate. But it’s perfectly appropriate for activists to take their complaints about it to their state capitols, to influence legislators and to force referenda on the subject. Federal courts should not be touching maps, let alone redrawing them in either party’s favor just because the current ones look like a dog’s breakfast.

Speaking of which, one of Maryland’s districts looks rather like a puppy.