Academic journal article Harvard Law Review

Political Gerrymandering 2000-2008: "A Self-Limiting Enterprise"?

Academic journal article Harvard Law Review

Political Gerrymandering 2000-2008: "A Self-Limiting Enterprise"?

Article excerpt

It is nearly time to break out the maps again. In a couple of years, state legislatures, redistricting commissions, and eventually courts will sit down to redraw the districts in which candidates will run for the next decade, and those lines are likely to be drawn more carefully than ever to favor one or both of the major political parties. (1) The final election before redistricting is looming, and the money pouring into state legislative campaigns shows that the parties are taking the threats and opportunities of political gerrymandering very seriously. (2)

There seems to be general agreement among pundits and editorial boards that political gerrymanders are bad, but the issue has failed to excite the voting public. And when parties and voters disadvantaged by the lines have turned to the courts for relief, they have largely been rebuffed, at least when their complaints do not also raise claims of race-based line-drawing. (3) Despite the Supreme Court's holding in Davis v. Bandemer (4) that political gerrymandering claims were justiciable, lower courts failed to come up with a workable test for when political gerrymandering is constitutionally prohibited. (5) The Court distanced federal courts further from political gerrymandering claims in Vieth v. Jubelirer, (6) in which the Court addressed such a claim for the first time since Bandemer and held it nonjusticiable. (7)

Vieth was greeted by many observers with disappointment and dire predictions of the continued rise of political gerrymandering. (8) The hand-wringing was especially severe because the case was decided just months after Texas Republicans succeeded in pushing through a new, heavily gerrymandered congressional map in 2003. Two years later, when the Court in LULAC v. Perry (9) found no constitutional harm in that map, (10) concern over political gerrymanders reached a new high. (11)

By contrast, one person who was probably not terribly troubled by the outcome in the Texas case was Justice O'Connor, who had left the Court by then but had joined the plurality in Vieth. She had also authored a concurrence in Bandemer, where she voiced early on the argument that all political gerrymandering claims should be held nonjusticiable. (12) But Justice O'Connor's skepticism in Bandemer went deeper than justiciability. In a passage frequently cited since 2000, she claimed that courts need not intervene in political gerrymandering disputes because political gerrymanders tend to sort themselves out:

  [T]here is good reason to think that political gerrymandering is a
  self-limiting enterprise. In order to gerrymander, the legislative
  majority must weaken some of its safe seats, thus exposing its own
  incumbents to greater risks of defeat. ... 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. ... 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. (13)

The scope of this claim goes beyond gerrymanders of the type at issue in Bandemer, those favoring one party over the other. Indeed, Justice O'Connor implied that gerrymanders worked out "by the parties themselves" are part of the solution, not part of the problem.

Reaction to Justice O'Connor's opinion in Bandemer since 1986 has been divided. While most courts are content to say that political gerrymandering claims fail under Bandemer and wash their hands of the dispute, at least one court has adopted her reasoning. (14) Some election law scholars, too, have agreed that political gerrymandering is inherently self-limiting. (15) Pundits have also weighed in: Pew Research Center president Andrew Kohut argued that the 2006 Democratic wave "was strong enough to obviously move a lot of seats and overcome safe-seat redistricting. …

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