Partisan Gerrymandering after Vieth by yungtyriq


									Partisan Gerrymandering after
       Vieth v. Jubelirer
           Nathaniel Persily
  University of Pennsylvania Law School

  Partisan Gerrymandering Before
• Davis v. Bandemer (1986)
• Discriminatory effect occurs if the “electoral
  system is arranged in a manner that will
  consistently degrade a voter’s or a group of
  voters’ influence on the political process as a
  whole. . . . [S]uch a finding of unconstitutionality
  must be supported by evidence of continued
  frustration of the will of a majority of voters or
  effective denial of a minority of voters of a fair
  chance to influence the political process.”
       Life Under Bandemer
• No partisan gerrymanders struck down
  under Bandemer standard
• Appeared as if almost any evidence of
  some representation would suffice as
• Partisan gerrymanders challenged instead
  through one person, one vote, Shaw,
  Section 2 VRA, and state law claims
 The Multifarious Pronouncements of Vieth

• Four-Justice plurality (Scalia, Rehnquist, O’Connor,
  Thomas): Would find partisan gerrymanders non-
• Four dissenters (Stevens, Souter, Ginsburg, Breyer):
  Would find them justiciable and suggest a variety of tests
• Justice Kennedy’s concurrence:
   – Votes to affirm District Court decision upholding gerrymander
   – Leaves open the possibility of a manageable Constitutional test
     down the line
   – Perhaps future standard can be drawn from First Amendment

               Vieth v. Jubelirer
            (plurality opinion per Scalia)

• Finds Bandemer to have been a failure
• Rejects Plaintiffs’ and Dissenters’ proposed
  standards as unmanageable
• Assumes that “excessive injection of politics is
• But concludes that partisan gerrymandering
  constitutes a nonjusticiable political question due
  to the absence of judicially manageable

      Justice Stevens’s dissent
• Views partisan gerrymanders as violating the
  government’s duty to govern impartially.
• Admires Justice Powell’s concurrence in
• Would merge Shaw with patronage cases:
  when partisanship predominates in the creation
  of a district by subordinating traditional districting
  principles, then it violates the Fourteenth

Justice Souter’s dissent (joined by Ginsburg)
Test for individual districts modeled on McDonnell
  Douglas employment discrimination standard.
• Plaintiff’s burden:
  – Must be member of cohesive political group
  – Disregard of traditional districting principles (TDP)
  – Correlations between deviations from TDP and
    distribution of plaintiff’s population
  – Availability of alternative district that better respects
    TDP and better represents plaintiff’s group
  – Show that defendant intentionally gerrymandered
• Defendant must then prove district’s violation of
  TDP was justified by factors other than “naked
  partisan advantage”
      Justice Breyer’s dissent
• Recognizes that “politics” can be good for
• Fears minority entrenchment
• Factors that may suggest unconstitutional
  gerrymandering in statewide plan:
  – Redistricting more than once a decade
  – Repeated (or completely predictable) failure of
    majority party to capture a majority of the seats
  – Radical departures from TDP
  – No available neutral explanation for plan
**Justice Kennedy’s concurrence**
• Concurs with plurality: “Because there are yet no
  agreed upon substantive principles of fairness in
  districting, we have no basis on which to define clear,
  manageable, and politically neutral standards . . . .”
• Worries about nonjusticiability: “A determination by
  the Court to deny all hopes of intervention could erode
  confidence in the courts as much as would a premature
  decision to intervene.”
• Offers hope for the future: “In the context of partisan
  gerrymandering, that means that the First Amendment
  concerns arise when an apportionment has the purpose
  and effect of burdening a group of voters’ First
  Amendment rights.”
      Other ways to attack partisan
•   Section 2 VRA
•   Shaw claims
•   State law claims
•   One person, one vote –
    – Departures from population equality cannot be
      justified by the desire either to overrepresent some
      areas of the state or to advantage only one party’s
    – Justice Stevens: “the District Court's detailed factual
      findings regarding appellees' equal protection claim
      confirm that an impermissible partisan gerrymander is
      visible to the judicial eye and subject to judicially
      manageable standards.”
         Advice for the Risk Averse
• Odds are still against success of a partisan gerrymandering claim,
  though they remain justiciable
• Nevertheless, jurisdictions would do well to justify their plans or
  individual districts by appealing to principles other than partisan
• Avoid maximization of partisan advantage
• If you are going to gerrymander, do so by way of traditional
  districting principles
• Strive for perfect population equality even for state plans or at least
  be able to justify deviations in terms of traditional districting
  principles (compactness, contiguity, respect for political subdivisions
  or communities of interest, or protection of incumbents of both
• Stay tuned for
    – How the Texas case is resolved
    – Who is elected President and can appoint the next Supreme
      Court Justice

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