Gerrymandering and Association

By Tokaji, Daniel P. | William and Mary Law Review, April 2018 | Go to article overview

Gerrymandering and Association


Tokaji, Daniel P., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                         2160   I. THE QUEST FOR A STANDARD                        2166  II. AN ALTERNATIVE PATH                             2177      A. The Right of Expressive Association          2177      B. Voting as Association                        2183 III. THROUGH THE THICKET                             2190      A. Gerrymandering as an Associational Injury    2191      B. Applying the Voting-as-Association Standard  2197      C. Answering Objections                         2206 CONCLUSION                                           2209 

INTRODUCTION

A legal standard for partisan gerrymandering is the holy grail of election law. (1) For decades, jurists and commentators have struggled to articulate a manageable standard that will avoid entangling courts in the political thicket. The pressure for courts to put some limits on partisan gerrymandering has intensified over the past decade as mapmakers have drawn lines with increasingly deadly precision, maximizing their own party's power while minimizing that of the other major party. (2) The enhanced technological tools at their disposal can allow the dominant party to retain its dominance throughout the decade, even in strong years for the other major party. (3) This effectively allows the party that holds the pen at the start of the decade to retain power for the next ten years, even when more voters would prefer a different outcome.

Still, a fierce debate rages over whether partisan gerrymandering claims are nonjusticiable political questions, as four Justices in Vieth v. Jubelirer believed. (4) There can be no denying the difficulty or gravity of the problem. On one level, partisan gerrymandering is a problem that cries out for judicial intervention. The sophisticated means through which the dominant party can entrench itself in power deny the accountability to voters upon which democracy depends while relegating its opponent to semi-permanent minority status. (5) This is not a problem that will self-correct. So long as the dominant party knows it can retain its legislative branch dominance--and its control over the redistricting process in the next cycle--it has no incentive to make a change. If one views judicial review as a means by which to check incumbent self-entrenchment and protect political minorities, thus making democracy work better, then there is a strong case for judicial intervention. (6) That is particularly true in the era of hyperpolarization that we inhabit, which makes it extremely unlikely that the major parties will negotiate a political solution.

At the same time, there are good reasons to worry about the feasibility of a legal standard for partisan gerrymandering claims, particularly under the Equal Protection Clause. However noxious the problem of partisan gerrymandering may be, it has a long pedigree. (7) The idea that partisan gerrymandering violates the Constitution is therefore a hard sell for originalists. (8) Nor is there an established body of equal protection doctrine upon which those challenging partisan gerrymandering can rely. There is certainly some helpful language to be found in Supreme Court precedent, most notably the Court's statement in Reynolds v. Sims that the Equal Protection Clause guarantees "fair and effective representation." (9) But equal protection jurisprudence is an imperfect fit for the problem of partisan gerrymandering, given its usual requirement that either facial or intentional discrimination be established. (10) The one-person, one-vote cases were an exception, allowing an equal protection claim to be made without proof of discriminatory intent, but this one-off was justified by the relatively bright line that the Court developed through the equal population requirement. (11) Partisan gerrymandering does not lend itself to a comparably simple solution. Any standard the Court creates will involve difficult judgment calls. …

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