Partisan Gerrymandering after Vieth v. Jubelirer

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

2. Partisan Gerrymandering Before Vieth • 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.”

3. Life Under Bandemer • No partisan gerrymanders struck down under Bandemer standard • Appeared as if almost any evidence of some representation would suffice as defense • Partisan gerrymanders challenged instead through one person, one vote, Shaw, Section 2 VRA, and state law claims

4. The Multifarious Pronouncements of Vieth • Four-Justice plurality (Scalia, Rehnquist, O’Connor, Thomas): Would find partisan gerrymanders non-justiciable • 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 cases

5. 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 unlawful.” • But concludes that partisan gerrymandering constitutes a nonjusticiable political question due to the absence of judicially manageable standards.

6. Justice Stevens’s dissent • Views partisan gerrymanders as violating the government’s duty to govern impartially. • Admires Justice Powell’s concurrence in Bandemer • 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 Amendment.

7. 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”

8. Justice Breyer’s dissent • Recognizes that “politics” can be good for redistricting • 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

9. **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.”

10. Other ways to attack partisan gerrymandering • 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 incumbents • 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.”

11. Advice for the Risk Averse Linedrawer • 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 advantage • 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 parties) • Stay tuned for • How the Texas case is resolved • Who is elected President and can appoint the next Supreme Court Justice