Nonjudicial Solutions to Partisan Gerrymandering

62 Howard Law Journal 791 (2019)

Pepperdine University Legal Studies Research Paper

Wiley A. Branton/Howard Law Journal Symposium (2018), "We The People? Internal and External Challenges to the American Electoral Process."

18 Pages Posted: 24 Apr 2019 Last revised: 17 Apr 2020

Date Written: March 25, 2019

Abstract

This Essay offers some hesitation over judicial solutions to the partisan gerrymandering, hesitation consistent with Justice Frankfurter’s dissenting opinion in Baker v. Carr. It argues that partisan gerrymandering reform is best suited for the political process and not the judiciary. First, it traces the longstanding roots of the problem and the longstanding trouble the federal judiciary has had engaging in the process, which cautions against judicial intervention. Second, it highlights the weaknesses in the constitutional legal theories that purport to offer readily-available judicially manageable standards to handle partisan gerrymandering claims. Third, it identifies nonjudicial solutions at the state legislative level, solutions that offer more promise than any judicial solution and that offer the flexibility to change through subsequent legislation if these solutions prove worse than the original problem. Fourth, it notes weaknesses in judicial engagement in partisan gerrymandering, from opaque judicial decisionmaking to collusive consent decrees, that independently counsel against judicial involvement.

Keywords: Partisan Gerrymander, Gerrymandering, Election Law, Redistricting, Baker v. Carr, Gill v. Whitford, Partisanship, Judicial Power, Judicial Restraint, Political Questions

JEL Classification: K00, K1, K10, K3, K30, K4, K40

Suggested Citation

Muller, Derek T., Nonjudicial Solutions to Partisan Gerrymandering (March 25, 2019). 62 Howard Law Journal 791 (2019), Pepperdine University Legal Studies Research Paper, Wiley A. Branton/Howard Law Journal Symposium (2018), "We The People? Internal and External Challenges to the American Electoral Process.", Available at SSRN: https://ssrn.com/abstract=3359739 or http://dx.doi.org/10.2139/ssrn.3359739

Derek T. Muller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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