The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent

By Foley, Edward B. | William and Mary Law Review, April 2018 | Go to article overview

The Gerrymander and the Constitution: Two Avenues of Analysis and the Quest for a Durable Precedent


Foley, Edward B., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                               1732 I. UNIVERSALISM AND PARTICULARISM IN THE                   1737    EXPOSITION OF CONSTITUTIONAL RIGHTS    A. The Weakness of Universalism with Respect to         1740       Partisan Gerrymanders    B. Particularism and Gerrymanders                       1749    C. Tying a Particularistic Attack on Gerrymandering to  1755       Specific Constitutional Clauses       1. Due Process                                       1755       2. First Amendment                                   1756       3. Judicial Underenforcement                         1758       4. Elections Clause                                  1762    D. Universalism, Particularism, and the Durability of   1765       Precedent II. WISCONSIN, MARYLAND, AND THE FUTURE OF                 1779     GERRYMANDERING LAWSUITS IN FEDERAL COURTS CONCLUSION                                                 1784 

INTRODUCTION

Ever since Vieth v. Jubelirer, (1) the effort has been to develop a judicially enforceable standard that will convince Justice Anthony Kennedy to invalidate a partisan gerrymander as unconstitutional. (2) The so-called "symmetry standard" did not work in League of United Latin American Citizens (LULAC) v. Perry, at least not all by itself.' (3) Now the focus is on the "efficiency gap" as an alternative measure of partisan bias. (4) There is also the attempt to use the First Amendment, as Justice Kennedy himself suggested in Vieth, (5) as a more promising constitutional vehicle than equal protection for formulating a judicially manageable method of identifying when a redisricting map is infected with excess partisanship. (6) Now that the Court has under review the case from Wisconsin, Gill v. Whitford, (7) the fervent hope of many is that Justice Kennedy will find himself persuaded by one of these new approaches. (8)

It should be evident, however, that it is not enough to convince Justice Kennedy that the judiciary is capable of condemning partisan gerrymanders as unconstitutional. (9) Putting aside the obvious need to hold on to the votes of the four Democratic appointees to the Court, (10) there is the issue of whether Justice Kennedy's replacement on the Court--after he steps down--will adhere to a precedent that subjects gerrymanders to judicial invalidation. In other words, it does no good for Justice Kennedy and the four Democratic appointees to strike down a gerrymander in the spring of 2018, if Justice Kennedy leaves the bench later that year (or the next) and President Donald Trump replaces him with a Justice Antonin Scalia-like conservative who, believing that gerrymanders are nonjudiciable, joins in 2022 with four other Republican appointees (Justices Clarence Thomas, John Roberts, Samuel Alito, and Neil Gorsuch) to overrule the 2018 Justice Kennedy-led decision that struck the gerrymander down.

Justice Kennedy knows well the raw power to overrule a recent precedent solely because one member of the Court has been replaced with another. Justice Kennedy, after all, wrote the opinion in Citizens United v. FEC, (11) which overruled the seven-year-old McConnell v. FEC, (12) solely because Justice Sandra Day O'Connor, who had supplied the crucial fifth vote in McConnell, stepped down in 2006 and was replaced by the more conservative Justice Alito. (13) Even if Justice Kennedy supplies the crucial fifth vote to invalidate a gerrymander in 2018, he must be well aware that he can do nothing to prevent his replacement from exercising the pure judicial power to overrule that decision in exactly the same way that the addition of Justice Alito to the Court gave him the power to jettison McConnell. (14)

Despite this raw power of five Justices to overrule any precedent they wish to discard, not all precedents are equally vulnerable to overruling. Some decisions, even if 5-4 and sharply divisive when rendered, gather a staying power over time and thus resist an effort to undo them. …

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