Academic journal article The University of Memphis Law Review

Partisan Gerrymandering: Is There No Shame in It or Have Politicians Become Shameless?

Academic journal article The University of Memphis Law Review

Partisan Gerrymandering: Is There No Shame in It or Have Politicians Become Shameless?

Article excerpt

"It is hostile to a democratic system to involve the judiciary in the politics of the people."

Justice Felix Frankfurter, Colegrove v. Green1

"Governments long established should not be changed for light and transient causes; [but] . . ."

Thomas Jefferson, Declaration of Independence

"We are in the business of rigging elections."

Sen. Mark McDaniel, North Carolina State Senator2

"173 despots would surely be as oppressive as one. . . .

An elective despotism was not the government we fought for."

Thomas Jefferson, Notes on the State of Virginia3


No one is surprised when a victorious political party gerrymanders district lines to benefit its own candidates. But the extreme impact that the practice can have still shocks many, particularly when a narrow gap between the number of votes cast for each party statewide produces an overwhelming legislative majority.4 Are partisan gerrymanders5 an ordinary component of the political process? Is there no shame in it? Or have politicians have become shameless?6

Thirty years ago, the Court answered that question, holding that gerrymandering districts to favor one party discriminates against those who vote for the disadvantaged party, and thus violates the Equal Protection Clause.7 But the Justices have struggled to agree on a test that courts could use to separate acceptable redistricting that may favor one party from unconstitutional gerrymanders that are designed to unfairly entrench one party's control of the legislature.8 Although no one describes rigging a district map to give one political party an unfair advantage as a good thing,9 some have come close.10 And therein lies the rub: if partisan gerrymandering just isn't that bad, it becomes hard to muster the political will to strike it down, even if virtually everyone agrees that some gerrymanders are unconstitutional.11 By granting certiorari in Gill v. Whitford-a case in which a three-judge district court struck down a state legislative district map as an unlawful partisan gerrymander12-the Supreme Court may finally be ready to adopt a test to determine when redistricting violates the Equal Protection Clause.13

Perhaps surprisingly, the fundamental question-how bad is partisan gerrymandering-has received little attention.14 For over a decade, the Supreme Court's decision in Vieth v. Jubelirer15 has framed the debate.16 There, a plurality of the Court concluded that "setting out to segregate [voters] by political affiliation is (so long as one doesn't go too far) lawful and hence ordinary,"17 and thus it is simply too difficult for a court to determine whether redistricting "is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it."18 Although extreme partisan gerrymandering, the plurality conceded, crosses the constitutional line, the harm it causes is not bad enough to justify the costs of separating the wheat from the chaff.19

Justice Kennedy denied the Vieth plurality the critical fifth vote to render partisan gerrymandering claims non-justiciable. He saw the practice as a fundamental threat to our democratic traditions, and he argued that the courts should therefore adjudicate partisan gerrymandering claims.20 But, he recognized, the Justices had to agree on a "model of fair and effective representation" that would enable a court to "define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights."21

This Article shows that partisan gerrymanders are anathema to the ideal of American democracy. They produce precisely the type of unchecked decision-making that the Constitution sought to prevent.22 And partisan gerrymandering clashes with the culture of American democracy that respects either (1) historical-boundary-based district voting or (2) proportionality between the percentage of voters who cast ballots for a party statewide and the percentage of representatives from that party in the legislature. …

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