I predicted that this cycle, like the 2002 cycle, would produce significant gains for Republicans. Their success in electing governors and legislators in 2010 gave them control in big states like Texas, Florida, Pennsylvania, Ohio, Michigan, Georgia and North Carolina. And voters in Democratic California approved a ballot measure turning redistricting over to a nonpartisan commission.But it turns out Republicans will probably only gain 1 new seat in Congress as a result of all this.
In the [some] big states... Republicans concentrated on bolstering incumbents rather than creating new districts. Big Hispanic population increases in Texas and Florida forced Republicans to create new Democratic districts.
It is said that partisan redistricting can swing dozens of seats the way of one party through the creation of grotesquely shaped districts. But most grotesque districts in the current cycle owe their shape to the Voting Rights Act. Otherwise partisan districting has produced pretty clean lines.
And when voters change their minds, redistricters can turn out to be too clever by half. Many districts designed to elect Republicans elected Democrats in 2006 and 2008. Many districts designed to elect Democrats elected Republicans in 2010.
The less aggressive redistricting plans adopted this cycle show that even strong partisans have absorbed the lesson that if you create a bunch of 53 percent districts you can lose them when your side’s support goes down by 4 or 5 percent.Justice O'Connor said it best in the original political gerrymandering case, Davis v. Bandemer:
[T]here is good reason to think that political gerrymandering is a self-limiting enterprise. See B. Cain, The Reapportionment Puzzle 151-159 (1984). In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incumbents to greater risks of defeat — risks they may refuse to accept past a certain point. Id. at 154-155. Similarly, an overambitious gerrymander can lead to disaster for the legislative majority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more and more seats as the gerrymander becomes more ambitious. Id. at 152. More generally, each major party presumably has ample weapons at its disposal to conduct the partisan struggle that often leads to a partisan apportionment, but also often leads to a bipartisan one. There is no proof before us that political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves. Absent such proof, I see no basis for concluding that there is a need, let alone a constitutional basis, for judicial intervention.That was judicial restraint — circa 1986 — and it was apt.