Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional

Abstract

A corrosive concept has infected the roots of our democracy. This insidious notion, which has eluded judicial grasp, is that legislators may constitutionally draw electoral districts for the purpose of securing their own victory (“incumbency advantage”) or the victory of their party (“political advantage”). Political gerrymandering is popularly perceived as being disreputable but legal. This is only half-true. The Supreme Court has explicitly recognized that political gerrymandering may offend constitutional principles. Unfortunately, it has failed to articulate when this is the case and why. This Article seeks to answer those questions.

A careful reading of Supreme Court precedent exposes that electoral advantage is not a legitimate state interest. Those who claim legal cover to pursue political gain through the redistricting process have ignored three critical distinctions. These conceptual snares have spawned a set of false premises that this Article aims to elucidate and dispel: (1) the assumption that legislators’ personal considerations are synonymous with the legislature’s state interests; (2) the assumption that the constitutionality of political gerrymandering turns on the degree of “political interest” sought rather than the type of “political interest” sought; and (3) the assumption that there is one political gerrymandering offense rather than two: dilution and sorting.

This Article canvasses the history of redistricting case law and provides precedential authority for judges and litigants alike to identify and uproot the nettlesome notions that have plagued political gerrymandering claims to date. Naming these misconceptions points a way out of the wilderness and cuts a clear course through the political thicket. The Article proceeds as follows: Part I surveys the background and current state of redistricting law; Part II explores the analytical pitfalls that have plagued political gerrymandering claims to date; and Part III proposes a path for pursuing such claims going forward.

Keywords: voting, election, gerrymandering, redistricting, Voting Rights Act, equal protection, Constitution, partisan, political, racial, incumbent, incumbency protection, democracy, representation, vote dilution, sorting, legislature, retrogression, ballot, campaign, parties, polarization