Partisan Gerrymandering: Re-Establishing the Political Question Doctrine in Gill v. Whitford

Abstract

American politics is more divided and more contentious than ever, and the Supreme Court is about to step in to redefine the nation’s political landscape. In Gill v. Whitford, the Wisconsin Elections Commission has asked the Supreme Court to overturn a divided three-judge district court decision striking down a Wisconsin voter redistricting plan as an unconstitutional partisan gerrymander. But the Court has yet to clearly define the Constitutional boundaries of partisan gerrymandering, having provided contradictory holdings and reasoning for decades. This paper finds that partisan gerrymandering is correctly viewed as a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyper-partisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. And while the Court is not bound by ethical rules, general ethical principles should guide the Justices’ own moral compass towards the political question doctrine.

Keywords: partisan gerrymandering, political question, political question doctrine, supreme court, constitutional law

JEL Classification: K, K3, K4