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Gerrymandering and Association

48 Pages Posted: 2 Oct 2017  

Daniel P. Tokaji

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: September 29, 2017

Abstract

This article argues that the First Amendment expressive right of association prohibits excessive partisan gerrymanders. For decades, the Court has struggled to articulate a manageable standard for partisan gerrymandering claims. Justice Kennedy’s concurring opinion in Vieth v. Jubelirer suggested that the First Amendment might provide a more promising basis for such a claim than equal protection. The issue is now before the Court in Gill v. Whitford.

The right of association has long been understood to limit the dominant political group’s ability to discriminate against its rivals. For over four decades, the Court has understood that voting implicates the right of association, at least in some contexts. The article develops the argument for challenging partisan gerrymanders as a violation of the First Amendment right of association, focusing on the party-based character of the harm and an administrable effects-based legal standard. It explains how the legal standard developed in other voting contexts might be extended and applied to cases challenging excessive partisanship in drawing district lines.

Expressive association provides the strongest constitutional basis for challenging partisan gerrymandering for three reasons. The first is that it best captures the character of the injury, which inheres in party-based discrimination – more specifically, the dominant political party’s attempt to entrench itself at the expense of the rival major party and its supporters. Second, the legal standard adopted in voting-as-association cases focuses on effect rather than intent, avoiding the thorny challenge of discerning legislative intent. Third, the voting-as-association cases provide an appropriately nuanced standard. The balancing test that the Court has adopted in its voting-as-association cases allows fair consideration of both the burdens that the challenged practice has on the non-dominant party, as well as the state interests that might justify these burdens.

Keywords: gerrymandering, redistricting, right to vote, voting rights, First Amendment, association, election law

JEL Classification: K00, K40, K49

Suggested Citation

Tokaji, Daniel P., Gerrymandering and Association (September 29, 2017). William & Mary Law Review, Vol. 59, 2018 Forthcoming; Ohio State Public Law Working Paper No. 417. Available at SSRN: https://ssrn.com/abstract=3045444

Daniel Tokaji (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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