More effective, but a longer term solution - eliminate gerrymandered districts
A-fuckin'-men.
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This may be a great thing that the new Supreme Court could do.
The Supreme Court has tried to deal with it in the past, most recently in the case of Vieth v. Jubelirer. The first problem has to do with justiciability, that is, whether the Court even has jurisdiction over matters set by local legislatures. Suffice it to say that it's a serious separation of powers issue and call it a day on that one. But even for the Justices who do believe it's a justiciable issue, none of them could agree on how it's to be done.
In Vieth, a minority (of four) did not believe partisan gerrymandering to be a justiciable issue. The remaining five members couldn't agree among themselves on what the standards for a gerrymandering claim should be. Briefly:
Stevens: he'd let the plaintiffs win if they "could show that the legislature allowed partisan consideration to dominate and control the lines drawn, forsaking all neutral principles." So if the only possible explanation for a district's bizarre shape is a naked desire to increase partisan strength, Stevens would find the partisan-drawn district to be a violation of equal protection.
Souter: he proposed a five-element standard for a prima facie case of gerrymandering. For example, he would require the plaintiffs to show that the district in which they resided "Paid little or no heed to those traditional districting principles like contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains." The plaintiffs would also have to establish "specific correlations between the district's deviations from traditional districting principles and the distraction of the population of his group. For example, if a Democrat-plaintiff brought the claim that the lines were drawn in a way that split particular towns and/or communities he would have to show that "Democrats tended to fall on one side and Republicans on the other."
Kennedy: he couldn't say what the prcise standard ought to be but thought that a standard based on the First Amendment might work better than one based on the Equal Protection clause. That is, he thought the Court should try to use First Amendment free-association principles to protect the disfavored voter's rights not to be discriminated against on account of their association with the disfavored political party.
So following Vieth, it's hard to see how plaintiffs in a partisan-gerrymandering case can ever convince a majority of the Court to agree on one standard, if at all.
It's important to note that this wasn't necessarily a liberal v. conservative dilemma on the Court, although Scalia argued that no justiciable solution existed. That might indicate on first blush that it was a conservative against liberal decision, but O'Connor concurred in the decision and Souter dissented (generally). So you had a pretty mixed bag.
And if you look at the ideas that Souter, Kennedy, and Stevens had, it's pretty easy to see how each idea in turn could be defeated simply by those who believe it's non-justiciable combined with the disagreements by the other Justices who believe it is something for the Courts to decide, but don't agree on how it should be done.
The Court could say that partisan gerrymandering has taken place, but they have to lay down a reasonably precise workable standard for it, so that the offending district can be remedied. Without at least five of them agreeing on that standard, the plaintiff's case is lost, and then another party in another district is going to have to bring a different case and hope that by that time the Court can reach an agreement.
This^ is the situation in a nutshell.
