Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims after Vieth

Abstract

In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such claims were justiciable resulted in virtually no successful claims in the lower courts.In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.