Partisan Gerrymandering: Is There No Shame in It or Have Politicians Become Shameless?

Abstract

Thirty years ago, the Supreme Court held that gerrymandering districts to favor one party discriminates against those who vote for the disadvantaged party and thus violates the Equal Protection Clause. But the justices have struggled to agree on a test. Although no one describes rigging a district map to give one party an unfair advantage as a good thing, some come close. And therein lies the rub. If partisan gerrymandering just isn’t that bad, it becomes hard to muster the political will to strike it down, even if virtually everyone agrees that some gerrymanders are unconstitutional. By granting certiorari in Gill v. Whitford – a case in which a three-judge district court struck down a state legislative district map as an unlawful partisan gerrymander – the Supreme Court may finally be ready to answer that question. Perhaps surprisingly, the fundamental question – how bad is partisan gerrymandering – has received little attention. This article shows that partisan gerrymanders are anathema to the ideal of American democracy. They produce precisely the type of unchecked decision-making that the Constitution sought to prevent. And they clash with the culture of American democracy that respects either (1) historical-boundary-based district voting or (2) proportionality between the percentage of voters who cast ballots for a party statewide and the percentage of representatives from that party in the legislature. A partisan gerrymander disrespects both of those legitimate goals. Accepting it as part and parcel of the political process would undermine the original understanding of a democratic republic embodied by the Constitution as well as the understandings of Americans throughout the nation’s history. This Article then looks to that history and culture to articulate a standard for assessing redistricting claims. Courts have struggled to draw the line separating permissible and impermissible partisan gerrymandering because no such line exists. District line drawing is not like the porridge in Goldilocks and the Three Bears – sometimes too hot or too cold, but somewhere in the middle is just right. The question is one of kind, not degree. Some types of district line-drawing accord with our heritage and some don’t. Legislators drawing a district map may take partisanship into account – just as they can take race into account – to further a legitimate objective of the democratic process. Our constitutional, legal, and democratic cultural history supports the two legitimate goals set out above – districts based on historical geographic boundaries or proportionality. A partisan advantage may legitimately arise from pursuing one of these goals, because the goal comports with our democratic heritage. By contrast, drawing lines that disrespect both historical geographic boundaries and the proportional will of all voters – as partisan gerrymandering does – has no rational basis in our shared history and thus fails to accord voters on the short end of the partisan gerrymander stick the equal protection of the law. No set of gerrymandering conduct exists such that drawing lines for the purpose of obtaining a small partisan advantage at the expense of historic boundaries and proportionality is legitimate while drawing lines to obtain a large advantage is illegitimate. Modern computer software enables the courts to analyze maps quickly to determine whether they objectively pursue either of the legitimate goals. When a map reveals disrespect for both and disproportionate results follow, a court should strike it down.