48 Pages Posted: 20 Apr 2005
Courts and scholars have long struggled over whether and how to police partisan gerrymandering. For all the disagreement about how to resolve these questions, however, there has been one consistent point of concurrence - that courts should treat congressional gerrymanders and state legislative gerrymanders identically. Constitutional jurisprudence and legal scholarship have always assumed that these two types of gerrymanders pose the same problems and are subject to the same solutions. Last Term in Vieth v. Jubelirer, the Court entrenched this assumption in constitutional doctrine.
This Article demonstrates that, contrary to the conventional view, congressional and state legislative gerrymanders raise distinct conceptual, normative, and constitutional questions. State legislative gerrymanders differ from congressional gerrymanders in a crucial way: a state legislative gerrymander affects the composition of the entire legislative assembly, while a congressional gerrymander affects the composition of only a small part of the legislature. This difference is significant because the standard contemporary accounts about why partisan gerrymanders are harmful describe harms that turn on the structure of representation in the legislative assembly as a whole - not on the consequences of redistricting for a small subset of the legislature. Such legislature-wide harms can be identified by a court reviewing a state legislative gerrymander, because the court assesses the redistricting plan that affects the composition of the entire legislature. But a court reviewing a single state's federal congressional gerrymander cannot identify such harms. The Article argues that the Justices' efforts in Vieth to directly identify the existence of harms caused by Pennsylvania's alleged congressional gerrymander were therefore misguided. If courts are to police congressional partisan gerrymanders, they instead need to develop strategies for state-level intervention that reduce the risk of congress-wide injuries.
Keywords: democracy, election law, redistricting, partisan gerrymandering, Vieth v. Jubelirer
Suggested Citation: Suggested Citation
Cox, Adam B., Partisan Gerrymandering and Disaggregated Redistricting. Supreme Court Review, 2004; U of Chicago, Public Law Working Paper No. 86. Available at SSRN: https://ssrn.com/abstract=1001960