The Politics of Judicial Review: Reassessing Judicial Regulation of the 'Political Thicket'

Abstract:     
This Article argues that partisan gerrymandering claims should be justiciable for challenges to state legislative redistricting plans, but nonjusticiable for congressional redistricting plans. The gerrymandering of congressional districts for partisan purposes should be beyond judicial purview because states can create cohesive congressional delegations to ensure that state interests are adequately represented in the federal legislative process. This federalism interest is simply not implicated in the drawing of state legislative districts because there is little direct connection between state legislative redistricting and federal lawmaking. Moreover, most states have adopted a form of government closer to pure democracy than the republicanism embraced by both the Guarantee Clause and the constitutional design of the federal government. At the state level, citizens are more active in governance and policymaking than in the federal government, and partisan gerrymandering can undermine this participation in violation of the Tenth Amendment, which not only reserves rights to the states but also to the people.

The caselaw has not evolved in a manner that would support rigorous regulation of state legislative redistricting. In particular, the Supreme Court has crafted a safe harbor in which states can deviate from the one person, one vote principle to accommodate policy choices in redistricting. As this Article shows, this deference is unwarranted given that the “safe harbor” allows states to gerrymander in ways that can subvert the policy preferences of the electorate in the domain in which they exercise the most influence over legislation. Strict scrutiny of a state’s reasons for deviating from the rule of equipopulation would be more consistent with the purpose of the doctrine, which was to constrain gerrymandering resulting from a failure to reapportion, than the safe harbor currently in place. As a general principle, this type of rigorous review is consistent with the early one person, one vote precedents because it reaffirms that there are constitutional distinctions between state legislative and congressional redistricting that should be respected, but it clarifies that this distinction should persist for reasons different from those relied on in the Court’s jurisprudence. Rather than relax the one person, one vote rule for both state legislative and congressional redistricting, as the Court has in recent cases, this Article concludes that, given the Tenth Amendment concerns raised by excessive gerrymandering at the state level, the state’s redistricting process should be voter focused and redistricting that is excessively partisan constitutionally suspect. Eliminating the safe harbor for state legislative redistricting brings the Court a step closer to developing standards that can properly assess the harm of partisan gerrymandering at the state level.

Number of Pages in PDF File: 68

Accepted Paper Series