The Malaysian union of voters (Malvu) in its optimism to see change, recently prefaced an article on the US Supreme Court decision in Vieth v Jubelirer with the words 'Gerrymandering: the end is near!'

The case was filed by two voters against legislators in Pennsylvania claiming a redistricting exercise constitutes malapportionment and unconstitutional political gerrymander. The 4:1:4 decision was handed down on April 28.

We call redistricting, redelineation. Gerrymandering is never a genteel legal term used in legislation. It nevertheless happens for as long as redelineation is allowed under the law.

Gerrymandering is partisan redelineation. Partisan to the party in power or majority parties in power (in legislatures) because a redelineation change requires the force of law.

By manipulating the number of party members returned by particular districts, the party in power can try to maximise its own return on its votes.

It goes without saying that the person responsible for drawing up districts or constituencies has to be, or is seen to be, independent of the party which commands the majority in the legislature; the party in power.

'Gerry' and 'mander' owes an ancestry to the governor of Massachusetts, Elbridge Gerry and the salamander. The term was coined in 1812 when Massachusetts had a redistricting exercise and the district Governor Gerry was credited with forming, resembled the outline of the salamander.

Thus, gerrymandering may be indicated but not conclusive, when constituencies are shaped like salamanders, snaking and wandering all over the map.

Voting irrelevant

In theory, all voters are treated equally; one person, one vote, one value. In partisan redelineation, political opponents' voters may be ghetto-ised into a small number of safe seats, or their votes are diluted by redrawing boundaries so as to break up voting blocs into several different districts thought to be populated by a majority from the other party.

It is arguable that such a scheme penalises the voter with 'disfavoured' political viewpoints and violates the democratic principle of equal treatment of voters.

Your vote may not matter when the partisan balance of the legislature is determined long before elections by the partisan redrawing of constituencies. Partisan redelineation in effect may insulate a governing party from removal by a majority of votes.

In this way, partisan redelineation subverts the idea of majority rule or representative government, the accountability of governments and political equality of citizens.

If gerrymandering is done often enough and unchecked, it erodes confidence that citizens control the government through the ballot box. Voting becomes irrelevant. With gerrymandering, elections are more of legislative craftsmanship than popular vote.

To prove that a redelineation is in fact, 'illegal' as incompatible with representative democracy, is not a piece of cake. Unlike the US, we have not even started to shake the Election Commission's (EC) belief in the neutrality of its several re-delineation exercises, the most recent of which was in 2003.

The EC has averred to the usage of well established principles in the 2003 exercise. According to its secretary Wan Ahmad Wan Omar, these included the voter population in each constituency, accessibility and services.

Wan Ahmad welcomed counter proposals but added "that may be to their benefit and therefore, we think our recommendations are better because they take into consideration various factors".

True, neutral factors support the principle of fairness; equal numbers of individuals should have equal representation. However equal representation for equal numbers for citizens does not mean that each citizen has an equal share of political power. Instead each individual voter in a marginal constituency has a far greater chance of making a difference to the outcome than the nominally equal voter in a safe district.

Malay vote

Associate Professor Lim Hong Hai, who teaches politics at Universiti Sains Malaysia (USM), noted that the redelineation exercises for the years 1974, 1984 and 1994 were "mainly directed at reducing the electoral importance of the non-Malay vote and thus enhancing the importance of the Malay vote".

In an article entitled, 'New Rules and Constituencies for New Challenges?', Lim said the pre-1999 constituency changes benefited Umno until the general election when PAS won as many Malay votes as Umno.

Lim notes that in the 2003 exercise, no new seats were added to PAS strongholds of Kelantan, Terengganu and Kedah.

On the whole there appears to be an increase in the number of mixed seats. The EC has not released the classification used in rural-urban weightage in 1994 and has done away with the rural-urban classification in 2003.

Lim notes the difficulty of establishing gerrymandering. And that is the bottom line as gerrymanders well know.

In the US, gerrymandering is tolerated but the courts are being called since Baker v Carr in 1962 to check the practice. Evidence of gerrymandering in the US courts highlights the fact that power is not directly proportional to the number of votes (the one vote equal one value argument).

In order to gerrymander effectively, one must be able to anticipate election returns. Dr Kumar Devaraj of Parti Sosialis Malaysian contested in Sungei Siput in the 2004 general election on a Parti Keadilan Nasional ticket.

At a recent meeting, he was of the opinion that it is possible for any interested person to actually know how a constituency votes by looking at the results per 'stream'. Thus it is possible to anticipate how a constituency will vote in the next round by checking results per 'stream'.

Sea change

In the last decade or so, redistricting software has mushroomed. The Caliper Corporation of the US for example is calling a spade a spade. It has developed a software, Maptitude for Redistricting , for the 'redistricting market'.

In the Pennsylvanian congressional redistricting, Republicans used a Carnegie-Mellon super computer to gerrymander Democrats into a handful of districts and rework the rest. This sea change of advancing technology which increased the extent of successful gerrymandering has been acknowledged in the US courts.

Those in the business will tell you that sophisticated mapping software allows any person to read demographic variables and generate very accurate redistricting maps designed to concentrate or diffuse party supporters.

Organisations like the American Union for Civil Liberties (ACLU) are supporting challenges to redistricting. ACLU believes that contemporary redistricting practices are subverting American democracy unless restrained by the courts.

"It would be foolish to deny that redistricting is an inherently political process, particularly when carried out by a legislature. Judicial intervention is called for when intentional discrimination is so apparent and severe to forsake majority rule."

It filed an amici curiae brief with the Brennan Centre for Justice at NYU School of Law in the Vieth v Jubelirer case.

Equal protection

In North America, a practice has evolved where human rights organisations, law schools or persons interested in the outcome, are permitted to advise the court as an independent third party through the amicus curiae (US) or intervenor (Canada). Australia is exploring a similar procedure for third party interventions. Malaysia has not developed this procedure.

The Vieth v Jubelirer case allowed the redistricting as they could not agree on a standard for assessing gerrymandering claims. Four judges disallowed it, each proposing a different standard for adjudicating gerrymandering claims.

The ninth judge, Justice Kennedy allowed the redistricting in question. He however opened the door to the development of a criteria that would meet a constitutional discrimination standard under the equal protection clause of the American constitution.

These court developments seem beyond us at the moment. However, the mapping software is in town. In the 2003 redelineation exercise, Kedah's seats were not increased, but the redelineation map for particular Kedah constituencies, do not appear as compact or as contiguous as in 1994 (used for the 1999 polls).

ACLU notes that it would be best for legislatures and not the courts to develop alternatives to unconstitutional systems of party control. Where redistrictings are struck down, the legislature should be asked to go back to the drawing board.

This is certainly an area which requires more robust participation by political parties and civil society actors if we are going to be serious about electoral politics. In the usual course of business, redelineation proposals are between the government and the EC.

The public gets into the picture too late in the day, when it hits Parliament for passage into law. The procedure for public oversight and intervention is technically hazardous. The end of gerrymandering is nowhere near, so to speak.

The walkout by PAS and DAP MPs when the amendments had more than the required two-thirds majority vote (149 to 34) in Parliament is duly noted. It remains a protest not a strategy for change.

Note : The ACLU-NYU 30-page brief in the Vieth v Jubelirer case sets out the various tests since Baker (1962) up to Bandemer (1986). Vieth v Jubelirer is the latest case on point.