“Benign Partisanship”

Franita Tolson has posted this draft on SSRN (Notre Dame Law Review).  Here is the abstract:

The Framers of the United States Constitution created our system of federalism based on the principle that political safeguards would protect the regulatory interests of the states from overreaching by the federal government. While many of these safeguards have since failed, others have emerged to insulate the states from an ever-expanding federal presence. One such safeguard is partisan gerrymandering, which allows states to draw legislative districts that reflect the partisan affiliation of a majority of the electorate, and in turn, send a delegation to Congress that is as ideologically cohesive as practicable. In making this argument, this Article corrects a basic misunderstanding in the political safeguards literature: that the Senate is the only chamber that the Framers constructed to protect state interests. In reality, a politically cohesive House delegation can ensure that the state’s preferred policy preferences shape federal lawmaking.

This Article also illustrates that, in the context of congressional redistricting, the legal scholarship’s sole focus on ascertaining manageable judicial standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated by the federalism issues in this area. Despite the absence of standards, the broader structural implications of promoting “federalism-reinforcing” gerrymandering require the Supreme Court to craft rules that encourage the use of mid-decade redistricting and at-large voting schemes; that limit the authority of independent commissions to draw redistricting plans; and that promote strong state political parties, all of which will help preserve the states’ ability to utilize the federalism benefits that flow from partisan redistricting.


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