The Texas election law case has the most bite in that Tom DeLay was intimately involved in the whole matter, knowing that control of state legislatures leads to de facto heightened control of federal re-districting. Congress has the power pursuant to Art. I, sec. 4 to "make or alter" regulations respecting the elections of members of its own body, but generally the states are given broad discretion respecting "time, place and manner" rules.
This includes dividing states into congressional districts pursuant to lines drawn by state legislatures or (in a few cases) special bodies set up for that purpose. Modern computer models provide a means to micromanage this task while modern political practices only encourage an "anything to get ahead" policy, including mid-decade redistricting that was basically unheard of in the 20th Century. Close party control furthers the temptation since a little nudge can mean a lot.
The Supreme Court has been very hesitant to target "political gerrymandering," namely dividing political lines basically for the gain of a particular political party. Four justices firmly have argued that this practice violates equal protection by wrongly burdening certain groups, which also has clear associational harms as well. Thus, it is a First and Fourteenth Amendment problem.
Justice Kennedy previously voiced some sympathy, especially for the former, but basically is unsure of how to go about setting forth guidelines. So, technically such a claim is possible, just not likely to be win. In this very case, Kennedy's plurality accepted politics played a role ... just not enough to be unreasonable, except in a narrow fashion which harmed the voting rights of a particular racial group. Thus, though Roberts/Alito again (as with the campaign finance case) decided not to require firm lines yet, the leaning is clear.*
An amicus brief [h/t] argued for a somewhat different emphasis -- voting rights. The Constitution gives "the People" the power to choose members of the House (Art. I, sec. 2), while state power over only "time, place and manner" of elections. Taking various dicta (?) into consideration, the brief argues such power does not include the ability "to design congressional districts for the purpose and effect of destroying the electoral accountability between representatives and citizens that is essential to representative democracy."
And, this is just what partisan gerrymandering (sometimes with each side making a devil's wager to share the spoils) does these days. This connects to the pro-democracy goals of the First Amendment -- which honors speech, association, and petition rights that are at their core during elections. If the elections are "hollow rituals," such rights are equally hollow.* Sounds good and all, but Justice Kennedy did not reference the argument, and in fact suggests states have pretty broad powers here.
Thus, the brief sees the matter as a "structural" one that furthers republican principles. After all, the bare text ("the people" still vote, "manner" is a rather open-ended term) only takes one so far. The argument calls to mind a comparable law review article that approaches things in a similar fashion, tossing in security of a republican form of government set forth in Art. IV, the so-called "Guarantee Clause": "The United States shall guarantee to every State in this Union a Republican Form of Government ..."
This has long been deemed a "political question," so it is not surprising that the justices did not take-up the election clauses approach suggested here, even if a few opinions in recent years did suggest Art. IV should be considered a "justiciable" question in some fashion. The article took a half-way approach: the courts would only decide the current practice was illegitimate, tossing it to Congress for relief. Likewise, perhaps, if an independent commission set districts, it would be a sign of good faith.
The brief argued that mid-decade redistricting would be in most cases a sign of bad faith. The temptation for political gerrymandering and violation of the people's rights as discussed would be too great -- evidence is shown to back this up. The dissents basically argue that in this case that the practice can be used to prove illegitimate intent, especially since the original plan was fully appropriate, perhaps even slightly pro-Republican.
Overall, here, there were various reasons to be suspicious. The majority is not as supportive, especially given the problems with so determining. The brief goes a step further: it sets forth a clear statement sort of rule, a bit of judicial doctrine, which it deems a pragmatic necessity. It surely at least is quite arguably a policy one -- even if the case is not clear enough for judicial relief, political/legislative relief is justified.
But, self-dealing legislators are in no rush to bite the hand that feeds them -- as noted, in some cases, both parties benefit. Justice Stevens' dissent cited history that pointed to how Texas Democrats in the past illegitimately benefited from the practice. It just argued the "solution" (payback?) was not constitutionally valid. So, again, this is in no way some sort of anti-Republican screed.
Perhaps, hopeless as it seems, the solution cannot at this time be achieved in the courts. The current Supreme Court if anything wants to do less, at least in some areas. So it goes -- the brief provides a different approach to the problem, a "republican" one that looks toward the sanctity of the election system as a whole, not individual rights per se.
This seems like a sound approach given the breadth of the matter, even if the Supremes do not quite want to take up the mantle. It also possibly has a better shot at success -- the Court here only granted relief respecting a violating of the voting rights of Latinos, who cross party lines, but it still seems to be a special interest group matter. Political gerrymandering overall pursuant to the dissents' strategy disfavors one party or the other -- again, a special interest flavor. The brief, however, looks to the election regime as a whole. The people as a whole. [Justice Breyer might sign on here; see his book Active Liberty, which in part looks structurally to promote democracy.] And, in certain states, this has received some traction, such as calls for independent election commissions.
Basic republican principles are threatened these days in various ways. Reality dictates that debates often will suggest it is just a battle of group power, Democrats, e.g., not really caring about executive overreaching -- only this President's actions. Such cynicism is overblown ... neutral principles are at stake too. This brief provides a useful approach in that respect as well. Rejection invites just what some claim: tit for tat Democratic responses.
Darn if that would at the end of the day truly be depressing. After all, currently, we realize the limits of party control. The Republicans, once losing power, will once again win. But, such a dog eat dog world, apparently is to be considered quite ideal. So some think.
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* Justice Stevens' discussion of the problems of excessively "safe seats" (footnote 10) underlines the point. "One justification for majority rule is that elected officials will generally 'take the minority’s interests into account,' in part because the majority recognizes that preferences shift and today’s minority could be tomorrow’s majority."
Such seats, especially if blatantly formed to favor a political party, points to a different reality. Self-dealing will always occur, but there should be limits. Thus, the brief notes even the "Solid South" days of the early 1900s had more incumbent turn around then these days.
He then underlines what went on here. The original districting plan was somewhat Republican friendly, if any party was favored (so said the state's own expert), but ticket splitting and so forth (Texas Democrats can be rather conservative) allowed Democrats to win a few "Republican" seats. This could not stand, so a more blatant party protection racket system was formulated via mid-decade redistricting, made more blatant because a plan was already in place.