Mitchell N. Berman
University of Texas School of Law
U of Texas Law, Public Law Research Paper No. 71
Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims present a political question. Standing alone, Justice Kennedy found no proposed test satisfactory but refrained from ruling such claims nonjusticiable. Acknowledging the difficulty in crafting judicially manageable standards and warning, therefore, that the plurality might in time be vindicated, Kennedy refused to admit defeat prematurely.
Disagreeing with the Vieth plurality, this Article argues that courts can manage gerrymandering if they recognize that court-crafted constitutional doctrine need not precisely track court-interpreted constitutional meaning; instead, doctrine is designed to administer that meaning in pragmatic fashion. Although this claim should not prove very controversial, many Justices often seem not to appreciate its truth and importance. To be sure, richer appreciation of the relationship between meaning and doctrine is no panacea. For it to bear fruit here, courts must also better understand the concept of excessive partisanship. And to do that, they must grasp what partisanship means in scalar terms. That is, we cannot know how much partisanship is too much without having a clearer handle on what much partisanship means. Unfortunately, the substantial gerrymandering literature has mostly overlooked this question, focusing predominantly on the logically subsequent task of designing manageable tests.
This Article identifies four conceptually distinct ways to think about partisanship in districting as a phenomenon that possesses a dimension of magnitude or degree. These four distinct conceptualizations are the product of cross-cutting two-part distinctions: whether the baseline for measurement is supplied positively or normatively, and whether the grounds of measurement are ends-based (turning on the electoral outcome that redistricters sought to achieve) or cost-based (turning on the extent to which redistricters sacrificed other districting considerations). In brief, the Article argues that one of these conceptions (the cost-based, positive-baseline conception) is superior to the others, and that much of the confusion and pessimism that have attended academic and judicial discussions of partisan gerrymandering are attributable to implicit adoption of one or another of the alternative - and less satisfactory - conceptions of what it means for partisanship to exist in degrees.
The Article concludes with exploratory thoughts regarding how courts, armed both with a clearer and better conception of amounts of partisanship and a more mature appreciation of the relationship between constitutional meaning and constitutional doctrine, can design manageable judicial doctrine to administer the constitutional ban on excessive partisanship in redistricting. One such doctrine concerns mid-decade gerrymandering, and therefore offers a promising judicial response to the mid-decade Texas gerrymander presently before the courts.
Number of Pages in PDF File: 75
Keywords: partisanship, gerrymandering, Vieth, election law, decision rulesAccepted Paper Series
Date posted: January 13, 2005
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