The Gerrymandering Cases

By Foley, Edward B. | The Journal of Law in Society, Spring 2019 | Go to article overview

The Gerrymandering Cases


Foley, Edward B., The Journal of Law in Society


I. INTRODUCTION

Two gerrymandering cases were argued before the U.S. Supreme Court on March 26, 2019--Rucho v. Common Cause (1) and Lamone v. Benisek, (2) the first from North Carolina and the second from Maryland--attacking congressional gerrymanders on multiple grounds: primarily, the First Amendment; and secondarily, Equal Protection and Article I.

The First Amendment and Equal Protection challenges suffer from what seems to be a conceptual difficulty. But the same problem does not afflict the Article I claim. There are additional reasons, moreover, why the correct understanding of Article I leads to a modest and appropriate role for judicial invalidation of extreme gerrymanders that function as obstacles to the electorate's ability to remove incumbent representatives whose performance in office the electorate repudiates. The Court, therefore, should embrace Article I as a basis for judicial review of congressional gerrymanders pursuant to the exercise of its interpretative authority under Marbury v. Madison (3), while simultaneously eschewing the First Amendment and Equal Protection as grounds for this review.

II. THE PROBLEM WITH THE FIRST AMENDMENT AND EQUAL PROTECTION CLAIMS

Both the First Amendment and Equal Protection claims in these cases rest on the same proposition that gerrymandering wrongly discriminates against members of a political party because of their partisan affiliation. Given this commonality, as well as the fact that the plaintiffs themselves prioritize their First Amendment argument, this article will also focus on the First Amendment. But this analysis of the First Amendment issue applies as well to plaintiffs' Equal Protection claims. Both share the same weakness, which is the difficulty of condemning the choice of a legislative district's boundaries as a form of unconstitutional discrimination based on the party identification of voters who reside in the district.

While some form of government discrimination on the basis of partisanship violate the First Amendment, not every kind of governmental differentiation based on party affiliation is unconstitutional. The majority party in each chamber of Congress gives itself more seats on legislative committees and subcommittees than it gives to the opposition party. Similarly, administrative agencies, like the FCC, often have more members from one political party than another. And even though the First Amendment has been construed to prevent partisanship as a basis for employment decisions with respect to subordinate federal employees, a president clearly can make party affiliation a factor in appointing cabinet-level and other policymaking officials. (4)

The question is whether the First Amendment prevents making partisanship a factor in drawing legislative districts. Can the majority party favor itself, at least to some extent, when exercising the discretion of where to draw the district lines, just as it favors itself (at least to some extent) when determining legislative committee assignments, or hiring some policymaking staffers? Or instead is legislative districting the kind of decision, like determining who gets a license for a parade on a public street, or who gets hired as a state university professor, for which the First Amendment requires that partisanship play no role whatsoever?

To ask these questions, drawing this conceptual distinction, would seem to suggest legislative districting belongs on the side of the line that permits consideration of partisanship as part of the government's discretion to organize its own operations.

Historically, it has long been thought that it is permissible, even if sometimes objectionable, for partisanship to play a role in the drawing of district lines. When Patrick Henry had to decide where to draw the lines for Virginia's districts in the first congressional election, one way to draw the lines would favor one nascent political faction (to which Henry and James Monroe belonged), while another way to draw the lines would favor a different political faction (to which James Madison belonged). …

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