39 Pages Posted: 26 Jul 2004 Last revised: 11 Jan 2013
A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles.
We offer a preliminary reaction to the Court's decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats.
Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive - whatever that term means, and whether it even has any agreed-upon meaning - will come before courts, and lack of candor about what courts are doing may carry its own costs.
Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Court's initial refusal to enter the political thicket rested on its view that malapportionment suits challenge not a private wrong, but a wrong suffered by [the state] as a polity. The Warren Court Reapportionment Cases responded by declaring that malapportionment claims are individual and personal in nature. Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Court's recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Court's intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.
Keywords: political gerrymanders, Vieth v. Jubelirer, Cox v. Larios
JEL Classification: D72, H70, K41, J70
Suggested Citation: Suggested Citation
Issacharoff, Samuel and Karlan, Pamela S., Where to Draw the Line?: Judicial Review of Political Gerrymanders. University of Pennsylvania Law Review, Vol. 153, p. 541, 2004; Stanford Public Law Working Paper No. 96; Columbia Public Law Research Paper No. 04-75. Available at SSRN: https://ssrn.com/abstract=568903