Nick Stephanopoulos in TNR:
If insanity is doing the same thing over and over and expecting a different result, then litigants who challenge gerrymandering must be mad. Last month, a federal court threw out the Texas Democratic Party’s claim that the state’s new congressional and state house districts are unlawful. This was the twelfth time in a row that this sort of claim has failed in the current cycle. Plaintiffs’ record of futility now spans at least three dozen cases over four decades.
It doesn’t have to be this way. Litigants keep losing these lawsuits because they keep proposing standards the courts have already rejected (such as partisan intent). They’re failing to capitalize on encouraging comments by the Supreme Court, which show that it’s open to a test based on partisan symmetry—the idea that district plans should treat the parties equally. In a forthcoming law review article, Eric McGhee and I lay out just such a test. If plaintiffs were to use it in litigation, they’d have a fighting chance at winning. And if they were to win, then the whole landscape of redistricting in America would be transformed.