Abstract

http://ssrn.com/abstract=943446
 
 

Citations (1)



 


 



Defining the Constitutional Question in Partisan Gerrymandering


Richard Briffault


Columbia Law School


Cornell Journal of Law and Public Policy, Vol. 14, p. 397, 2005
Princeton Law and Public Affairs Working Paper No. 06-007
Columbia Public Law Research Paper No. 06-101

Abstract:     
In Vieth v. Jubelirer, a narrow majority of the Supreme Court determined that, at least for the moment, partisan gerrymandering is nonjusticiable. Yet, strikingly, all nine members of the Court also agreed that, justiciable or not, partisan gerrymanders raise a constitutional question, and some gerrymanders are unconstitutional. However, the Court gave little attention to just why gerrymandering might be unconstitutional.

The justices bounced back and forth between justiciability and the standards for proving gerrymandering without considering what constitutional harm gerrymandering poses.

This Article considers the question of why partisan gerrymandering might be unconstitutional. It finds four constitutional arguments against gerrymandering in judicial opinions and the academic literature: (i) vote dilution in violation of the equal protection clause; (ii) burdening of political association in violation of the first amendment; (iii) frustration of the competitiveness necessary for democratic elections; and (iv) excessive pursuit of partisan or individual legislator self-interest.

The Article contends that the first three arguments are likely to fail, in part because the theories they rely on are ultimately in tension with the use of districting to elect legislators. The fourth argument comes closest to capturing the constitutional harm posed by gerrymandering while remaining consistent with the use of districting. Of course, the fourth argument implicates the manageability concern that gives force to the argument against justiciability. Yet, the experience with Shaw v. Reno claims alleging excessive use of race in districting, suggests that the excessive partisanship/self-interest theory of partisan gerrymandering may also be judicially manageable - if the Court concludes that the harm posed by gerrymandering is serious enough to justify judicial intervention.

Number of Pages in PDF File: 27

Keywords: gerrymandering

Accepted Paper Series





Download This Paper

Date posted: November 9, 2006  

Suggested Citation

Briffault, Richard, Defining the Constitutional Question in Partisan Gerrymandering. Cornell Journal of Law and Public Policy, Vol. 14, p. 397, 2005; Princeton Law and Public Affairs Working Paper No. 06-007; Columbia Public Law Research Paper No. 06-101. Available at SSRN: http://ssrn.com/abstract=943446

Contact Information

Richard Briffault (Contact Author)
Columbia Law School ( email )
435 West 116th Street
New York, NY 10025
United States
212-854-2638 (Phone)
212-854-7946 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 1,063
Downloads: 82
Download Rank: 80,265
Citations:  1

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.328 seconds