Bond v. Floyd and Expressive Proscriptions on the Partisan Gerrymander

Abstract

Efforts to reframe the gerrymandering debate in First Amendment terms have been sporadic and half-baked. Drawing on pending litigation in Wisconsin and Maryland, this Article attempts to fill voids in First Amendment theory vis-a-vis the partisan gerrymander. Relying on the Supreme Court’s decision in Bond v. Floyd, the Article argues that gerrymandering should be understood as more than a numeric representational injury. It is instead, or in addition, content discrimination the objective of which is to eliminate certain views from the process of self-governance in much the same fashion as the Georgia House of Representatives refused to seat civil rights leader Julian Bond due to his views on the Vietnam War. This reconceptualization of the harm of the partisan gerrymander in turn expands the body of evidence germane to proving a constitutional violation. Most notably, evidence of political polarization in a jurisdiction and/or a legislative body sheds light on both the motive for suppressing certain partisan viewpoints and the harm of such suppression, which this Article conceives as a deliberative rather than a numerical harm. Evidence of severe partisan polarization in conjunction with proof of systemic efforts to waste the votes of those harboring disfavored viewpoints (aka the “efficiency gap”) implicate the First Amendment’s basic guarantees of free thought, expression and association.