From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders

By Elmendorf, Christopher S. | William and Mary Law Review, April 2018 | Go to article overview

From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders


Elmendorf, Christopher S., William and Mary Law Review


TABLE OF CONTENTS  Introduction                                                     1605 I   THREE DIFFICULTIES WITH PARTISAN GERRYMANDERING     CLAIMS                                                       1607     A. "Judicially Discoverable and Manageable" Standards        1610     B. Bipartisan Lockups                                        1615     C. Congress and the Problem of Disaggregated        Redistricting                                             1616 II. THE EDUCATION ANALOGY :                                      1618     A. Of Political Thickets and Stygian Swamps: Barriers to        Judicial Review                                           1620        1. Sparse Constitutional Text                             1620           a. Education--State Constitutions                      1620           b. Representation--Federal Constitution                1622           c. Representation--State Constitutions                 1623        2. No Generally Accepted, Unidimensional Metric of           Quality                                                1627           a. School Quality                                      1628           b. Representational Quality                            1629        3. Disaggregated Decision-Making and Remedial           Discretion                                             1631        4. Politics and Judicial Authority                        1632     B. Mucking Through the Stygian Swamp: How State Courts        Have Managed Education-Rights Litigation                  1635        1. The Rose Template: Kitchen-Sink Liability Rulings and           Legislative Remand Remedies                            1636        2. Legislative Duties: Standards, Testing, and           Evidentiary Records                                    1638        3. Provisional Injunctive Remedies                        1642 III TOWARD REPRESENTATIONAL ADEQUACY CLAIMS UNDER     STATE AND FEDERAL CONSTITUTIONS                              1645     A.A Sketch of the Idea                                       1646     B.Changed Conditions                                         1648     C.The Three Difficulties, Reconsidered                       1656     D.State Law, Article I, or Equal Protection?                 1661     E.Some Objections                                            1665       1. Reverse-Engineered Standards and Intractable          "Type II" Disputes                                      1665       2. Is the Legislative Duty Superfluous?                    1671       3. Reviewing Maps vs. Requiring Frameworks:          Separation of Powers Objections                         1673       4. Dependence on Dependent State Courts                    1674 CONCLUSION                                                       1679 

INTRODUCTION

The moment for legal attacks on partisan gerrymanders may finally have arrived. In the 2004 case of Vieth v. Jubelirer, all nine Justices agreed that sufficiently extreme partisan gerrymanders would violate the Equal Protection Clause, but the Court split 4-1-4 on whether these claims are justiciable, with Justice Anthony Kennedy straddling the fence. (1) As this Article goes to press, advocates and observers are eagerly awaiting the Supreme Court's decision in Gill v. Whitford, an appeal of the first trial court decision since the 1980s to invalidate a state legislative map as an unconstitutional partisan gerrymander. (2) The lower court's decision in Whitford was soon followed by favorable preliminary rulings in other cases in Maryland and North Carolina. (3)

Echoing the diversity of thought among legal academics, parties, and amici in these cases have advanced a broad range of ideas about whether and how courts should police partisan gerrymanders. But common to all proposals on offer is a shared assumption about the judicial role: if a constitutionally discernable and judicially manageable standard for policing excessive partisanship exists, it is the courts' responsibility to discover and apply it. …

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