Intent Is Enough: Invidious Partisanship in Redistricting

By Levitt, Justin | William and Mary Law Review, April 2018 | Go to article overview

Intent Is Enough: Invidious Partisanship in Redistricting


Levitt, Justin, William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                                  1995 I. A SHORT HISTORY OF PARTISAN GERRYMANDERING                 1996    DOCTRINE II. THE CONCERNS BEHIND THE DOCTRINE                          2002     A. The Search for a Workable Measure of Unconstitutional  2003        Effect     B. An Alternative Focus on Intent                         2009        1. The Invidious Intent that Matters                   2013        2. The Nature of Effect in an Invidious Intent Claim   2018     C. Intent and the Concerns Behind the Doctrine            2023        1. Invidious Partisan Intent Is Not Just "Politics"    2024        2. The Capacity of Courts                              2034        3. The Gatekeeping Function of the Burden of Proof     2037 III. WHAT'S THE POINT?                                        2046 

INTRODUCTION

Academics, litigators, and politicians are notoriously averse to harmonious consensus. So we ought to take just a moment to celebrate a truly wondrous achievement. Against all odds, the Supreme Court has managed to unite a multitude of warring factions around one shared truth: partisan gerrymandering doctrine is, at present, a hot mess.

It is difficult to evaluate or critique the present doctrine of the Court with respect to partisan gerrymandering because the Court has offered little doctrine to evaluate. Various Justices have issued various opinions that have failed to command a majority or illuminate a durable path forward. Claims of partisan gerrymandering are, at least at the moment, justiciable. But, as political scientist Gary King memorably put it, none have thus far been sufficiently "justished" for the Court to deliver a meaningful and stable doctrinal standard. (1)

The status quo is chaos, yes. (2) But it is also opportunity. In the October 2017 Term, the Court is considering a Wisconsin case, on direct appeal of a finding that a challenged redistricting plan was unconstitutionally drawn. (3) The Court will have to decide something. Practitioners, scholars, and courts have put forth arguments and theories now pitched on unusually fluid terrain. Given the shards of past precedent, there are many plausible paths forward.

This Article surveys the landscape with a modest step back. Other scholars have attempted to craft standards addressing what the Court has requested--or more precisely, what Justice Anthony Kennedy has requested. (4) Instead, this Article addresses what the Court seems to want. In a quest to investigate manageable limits on an inherently political process, the Court has been bedeviled by the wrong question. Rather than asking "how much" partisan gerrymandering is "too much," the Court should be asking what kind of partisanship is improper in the redistricting context. (5) This inquiry would bring the Court back to familiar ground, harmonizing the jurisprudence of partisan gerrymandering with the Court's approach to constitutional harm in other arenas. Moreover, the evidentiary tools in this arena are equally familiar, comfortably within the judicial role, and, when used properly, would confine judicial invalidation of a map to only exceptional cases. In partisan gerrymandering cases, focusing on the proper question would likely produce an impact on the redistricting process that is theoretically significant but pragmatically modest: an exercise in boundary policing well within the Court's usual modus operandi.

Part I of this Article proceeds with a short history of partisan gerrymandering doctrine, capturing the Court's struggle to settle on a workable standard and its arrival at the present doctrinal moment. Part II teases out the jurisprudential concerns behind that struggle, and the Court's vain attempts to stumble toward a measure of impermissible partisan effect as the means to satisfy the most pertinent concerns. It then proposes, as an alternative, a standard of impermissible partisan intent and explains how that intent standard amply satisfies the concerns that have been motivating the Court thus far. …

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