What a Vote Is Worth

By Winter, Steven L. | The Journal of Law in Society, Spring 2019 | Go to article overview

What a Vote Is Worth


Winter, Steven L., The Journal of Law in Society


Finding a judicially manageable standard has, for a long time, been the holy grail of the partisan gerrymandering cases. The magic bullet would be a legal test with the simplicity and clarity of "one person, one vote." (1) Many people--and I was one--thought that the "efficiency gap" would finally provide that standard. (2) The Court pointedly declined the opportunity in Gill v. Whitford, deflecting the merits with an obtuse ruling on standing (3) although the Court will have two more occasions to face the question in the 2018 Term, (4) there is no good reason for optimism. We seem ever further from solving one of the most fundamental problems of contemporary democracy.

Despite my pessimism, I want to argue that the claimed lack of judicially manageable standards is at base a sham. Not only has the Court long applied "one person, one vote" to reapportionment, it has also been applying something called "traditional districting criteria" in the racial-gerrymander cases. (5) The conventional wisdom is that neither standard is of much use in the partisan-gerrymander context. I needn't detail the reasons; suffice it to say that, especially with sophisticated computer programs, it is easy to draw compact, contiguous, equally populous districts that are stacked for one party or the other. I shall return to assess the meaning and merits of both these standards shortly. I start, however, with a more targeted point: The standing analysis in Gill ironically makes clear that the Court is already applying a tacit set of standards to the partisan-gerrymander cases. They are not very good; indeed, I think that once laid bare they are indefensible. But they will nevertheless help us identify a better approach to this profound challenge of democratic dysfunction.

There is a well-established critique of the justiciability doctrines which argues that they necessarily operate as disguised rulings on the merits. In 1976, Louis Henkin argued that there was no such thing as a political question doctrine in which the Court abstains from the merits of an otherwise legal controversy. (6) This is most clear when the Court finds a textually demonstrable commitment to another branch--a point first made by Herbert Wechsler (7) and recently borne out by the Zivotofsky cases. (8) There is an even longer line of scholarship demonstrating that a ruling on standing is really a ruling on whether the plaintiff has a cause of action. Articles by Lee Albert, David Currie, William Fletcher, and me have all made versions of this argument. (9) Here, again, the point was first made in Hart & Wechsler where the authors suggested that standing law was "inextricably" a question of "rights and remedies." (10)

To say that the question of standing is one of rights and remedies is to say that any determination of standing is necessarily a determination of the scope of the right alleged. Thus, Justice Kagan's concurrence in Gill makes clear that the plaintiffs' standing depends not on any injury-in-fact they might have suffered, but rather on the nature of the legal claim they assert. If plaintiffs were to focus on infringements of their First Amendment rights of association, she explains, "constitutional harm" could easily be shown." The same is true of Chief Justice Roberts's opinion for the Court. First, he characterizes the plaintiffs' "injury from partisan gerrymandering" as consisting of the deprivation of "a constitutional right not to be placed in legislative districts deliberately designed to 'waste' their votes." (12) That "injury," he explains, "is district specific." The disadvantage to the individual voter "therefore results from the boundaries of the particular district in which he resides." It follows that the only proper remedy "lies in the revision of the boundaries of the individual's own district." (13)

It takes a deliberate choice to insist on such a myopic view: Even the Chief Justice under-stands that one cannot redraw district lines without affecting multiple neighboring districts (as well as their adjoining districts). …

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