Academic journal article Duke Law Journal

"A Cloud of Constitutional Illegitimacy": Prospectivity and the De Facto Doctrine in the Gerrymandering Context

Academic journal article Duke Law Journal

"A Cloud of Constitutional Illegitimacy": Prospectivity and the De Facto Doctrine in the Gerrymandering Context

Article excerpt


Courts have traditionally shielded the acts of malapportioned or otherwise illegally constituted legislatures from dissolution by employing the "de facto doctrine," an ancient common law policy tool with medieval roots. In its most basic form, the de facto doctrine seeks to safeguard the acts of unlawful but well-intentioned public officials from collateral attack out of concern for third-party reliance and a bald recognition of necessity. However, the doctrine as traditionally articulated only serves to validate past official acts; once the official in question has lost the "color of authority, " the doctrine no longer affords his actions de facto validity. Although this has not prevented courts from extending the doctrine, or something like it, to cover prospective acts in certain scenarios, courts have generally avoided "taking a look under the hood" and wrestling with the policy concerns underlying the doctrine to see if they still apply prospectively.

This Note examines the potential use of the tie facto doctrine in the gerrymandering context. Both racial and partisan gerrymandering present distinct challenges for courts seeking to prospectively apply the de facto doctrine to acts of a state legislature: generally, gerrymanders are created intentionally, making it harder to apply any "good faith " exception; illegal gerrymandering by its nature trespasses on important constitutional guarantees; and the traditional motivations for the de facto doctrine--necessity and reliance--arguably do not apply to legislation crafted by an unconstitutional government body seeking to preserve its power. By examining the historical roots of the doctrine, tracing its modern development, and considering its underlying policy rationales, this Note seeks to answer two questions: (1) how have courts expanded the de facto doctrine and its animating principles prospectively ?; and (2) how do those expansions shape the prospective application of the doctrine in the gerrymandering context?


   The iniquitous Law, which cut up and severed this Commonwealth into
   Districts ... inflicted a grievous wound on the Constitution,--it
   in fact subverts and changes our Form of Government, which ceases
   to be Republican as long as an Aristocratic HOUSE OF LORDS under
   the form of a Senate tyrannizes over the People, and silences and
   stifles the voice of the Majority.

   When Tyranny and arbitrary Power thus make inroads upon the Rights
   of the People, what becomes the duty of the citizen? Shall he
   submit quietly and ignominiously to the decrees of Usurpers? (1)

On August 11, 2016, a federal three-judge panel struck down a set of North Carolina state legislative redistricting maps (2) it later identified as one of "the largest racial gerrymanders ever encountered by a federal court." (3) Collectively, the unconstitutionally drawn districts impacted "nearly 70% of the House and Senate districts, touch[ed] over 75% of the state's counties, and encompass[ed] 83% of the State's population--nearly 8 million people." (4) Therefore, the state legislature elected under this districting scheme acted under "a cloud of constitutional illegitimacy" that would only be cured when "new elections [were] held under constitutionally adequate districting plans." (5)

Nevertheless, after two years, two Supreme Court decisions, and two failed attempts to force a special election, the same racially gerrymandered, Republican-dominated legislature remained in power. (6) And in the interim, it had not been idle--or demure. In fact, the legislature had embraced controversial attempts to use its veto-proof supermajority to shift control of a state elections board from the state's Democratic governor to the legislature and institute a voter-ID law, only to be judicially rebuffed. (7)

Yet, the Republican legislature's days of politically unchecked power were numbered, for two reasons. First, nonracially gerrymandered state districting maps would finally take effect in 2018. …

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