The Court's Missed Opportunity to Draw the Line on Partisan Gerrymandering: Lulac V. Perry
Brooks, Aaron, Harvard Journal of Law & Public Policy
Over the past decade, the growing polarization of the American electorate has led state political parties to redouble efforts to implement politically advantageous electoral maps. (1) Majority parties regularly adopt irregularly shaped districts in an attempt to pack opposition voters into a few districts while setting up their own "safe" legislative seats--a process popularly known as "gerrymandering." (2) The Supreme Court has addressed the practice twice. In Davis v. Bandemer, (3) the Court established that partisan gerrymandering presents a justiciable controversy, but it failed to settle on a test or standard to determine the constitutionality of any given plan. (4) After Bandemer, emboldened state legislatures created increasingly extreme districting maps with the purpose of entrenching the favored political party. The practice has escalated to the point that one commentator now believes that there are as many as four hundred safe congressional seats. (5) Eighteen years after Bandemer, the Court dismissed a similar case, Vieth v. Jubelirer, (6) because it was not able to agree on a workable standard to apply. (7) Vieth did not leave much hope of resolution, as four Justices advocated three separate approaches for adjudicating partisan gerrymandering claims, (8) four other Justices concluded that these claims presented a nonjusticiable controversy, (9) and one Justice found Vieth itself to be nonjusticiable, but hesitated to declare justiciability for all such suits. (10)
Last Term, in League of United Latin American Citizens v. Perry (LULAC), (11) the Supreme Court attempted for the third time to create a reliable standard for adjudicating claims of political gerrymandering. Although the Court held that a redistricting plan violated section 2 of the Voting Rights Act with respect to a specific district, it once again dismissed appellants' claims of statewide partisan gerrymandering because of the absence of a workable standard. (12) It seemed plausible that the Court's new composition would lead to the resolution and consensus lacking in Bandemer and Vieth, but that hope proved to be misplaced; instead, the present Court gave no new direction for the political branches or lower courts. If anything, LULAC's limited majority opinion and six separate concurrences plunged partisan gerrymander jurisprudence deeper into confusion. The third failure to delineate a workable framework, along with the constitutional delegation of districting to Congress and the States, should have led the Court to rule partisan gerrymandering nonjusticiable as a "political question."
In 1990, Texas Democrats capitalized on their control of the state legislature by enacting a redistricting plan designed to favor Democratic candidates. (13) The move effectively neutralized Republicans' growing success in statewide elections; in 2000, Republicans carried 59% of the statewide vote but won just 13 of the 30 House seats. (14) After the 2000 census, a split legislature forced the implementation of a court-ordered plan (Plan 1151C) to comply with the one-person, one-vote requirement. (15) Hesitant to be seen as politically motivated, the architects of Plan 1151C left the 1991 Democrat-drawn map largely in place, which culminated in a 17-15 Democratic advantage in House seats after the 2002 elections. (16)
Republicans gained control of both houses of the state legislature in 2003 and immediately set out to address their electoral disadvantage. (17) After a lengthy and infamous partisan struggle, the legislature enacted a new map (Plan 1374C) which enabled Republicans to parlay 58% of the 2004 statewide vote into a 21-11 advantage in House seats. (18) Opponents of the plan brought suit, alleging that the plan, both generally and with respect to two specific districts, violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and section 2 of the Voting Rights Act of 1965. (19)
A three-judge panel of the district court rejected the plaintiffs' claims that the plan should be invalidated as an unconstitutional partisan gerrymander. …