Benign Partisanship

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III. DEFINING A ROLE FOR THE COURTS" THE LEGAL AND STRUCTURAL IMPLICATIONS OF PRO-FEDERALISM GERRYMANDERING

The process of gerrymandering is both inherently political and ties directly into the balance of our federalism; consequently, there is a risk that, like broader issues of federalism, any standard employed by the Supreme Court to regulate gerrymandering will become politicized. As Lawrence Lessig has argued, the Court's early reliance on formalism to maintain the boundary between state and federal power made any deviation from the status quo appear political. The Court's pivot with respect to addressing the expansion of federal power brought on by the New Deal, (124) to resolving issues surrounding intergovernmental tax immunity in New York v. United States, (125) and to determining the scope of federal regulation of the states in National League of Cities v. Usury were all followed by cries of partisanship and concerns over the Court's legitimacy. (126) This has led Lessig to argue that, to avoid accusations of partisanship, the Court must "translate" federalism in order to preserve something from the framing balance in the current interpretive context. (127)

With respect to the judicial resolution of partisan gerrymandering claims, the risk of politicization is acute and likely to occur. The integration of the political economy as a result of mass political parties, (128) much like the integration of the national economy prompting Lessig's theory of translation, makes it difficult to draw any type of boundary between state and federal action. (129) Similar to its recent approach in its federalism case law, however, the Court can resolve at least some of the issues created by gerrymandering by incrementally changing the norms that govern the process of redistricting. In order to do so, the Court has to assess the broader implications of this federalism benefit and how it affects the Court's resolution of issues that emerge in substantive areas that have some impact on congressional redistricting. This approach is preferable to constructing a new cause of action that will ignore the benefits of gerrymandering and is unlikely to capture the harm. (130)

Part III.A argues that because partisan gerrymandering sits at the crossroads between two lines of precedent--election law and federalism--the difficulty of reconciling these two areas makes it virtually impossible to develop standards to directly regulate partisan gerrymandering. But the failure of direct regulation does not put an end to the questions surrounding the Court's role. As Part III.B shows, the focus on manageable standards has detracted from deeper discussions about the role that partisan gerrymandering plays in our system, a role that naturally influences questions of justiciability. Indeed, its federalism benefits implicate foundational questions about our system of government by forcing us to revisit several important questions of institutional design: whether mid-decade redistricting and at-large voting are approaches that can effectively convey voter preferences, and relatedly, whether redistricting conducted by independent commissions instead of state parties undermines the expression of these preferences. While direct judicial regulation of partisan gerrymandering may be even less desirable than previously assumed for reasons discussed below, the Court can still play a role in promoting the federalism benefits that underlie gerrymandering by resolving cases in related areas in a way that strengthens the states' ability to promote its interests through gerrymandering.

A. Overcoming Standards, Overcoming Law: Federalism-Reinforcing Gerrymandering and the Courts

The Supreme Court's success in articulating standards to address malapportionment and racial vote dilution have convinced many of the justices that they can have similar success with respect to partisan gerrymandering. But what should be clear, at least if I have been persuasive, is that partisan gerrymandering is different because of its federalism benefits. …