by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Wisconsin Democrats complain that the percentage of seats the GOP wins in legislative races exceeds the percentage of the total votes their candidates receive statewide. They say this is unconstitutional because it violates Democrats’ First Amendment right of association, as well as the equal protection clause of the Fourteenth Amendment–that the district lines punish certain voters because of their political affiliation.
The constitutional arguments are preposterous. Our basic law says absolutely nothing about proportional representation. Congressional and legislative representatives have always been decided by who wins the most votes. The Wisconsin government isn’t harassing Democrats who participate in the political process or forcibly preventing Democrats from voting. …
… The High Court would be foolish in the extreme to rule in favor of the Wisconsin plaintiffs and embroil itself in the messy, detailed business of determining legislative and congressional districts. This isn’t a task for unelected judges. The litigation would be endless, with dissatisfied parties and candidates filing suits. If voters feel that a redistricting has been unfair, they can pressure legislators or, in many states, push for a referendum to create a commission to try to draw relatively neutral boundaries.
But a majority of the Supremes may not be able to resist the temptation to play God instead of appreciating the wisdom of our founders, who concluded that most issues are best left to the normal give-and-take of everyday politics, untidy, unedifying and seemingly inefficient as the process may be. After all, despite more than two centuries of gerrymandering, American politics has been anything but static.