“From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders”

Chris Elmendorf has posted this draft on SSRN.  Here is the abstract:

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution, that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the state courts have deemed educational adequacy claims nonjusticiable. Other courts have dealt with putatively standardless education claims by holding that the legislature must adopt educational standards, together with a system of testing, school-finance, and accountability reasonably designed to realize those standards. If the legislature drags its feet, courts have issued provisional remedies, which the legislature is free to update or replace. I explain how the same strategy could be adapted for a new generation of “representational adequacy” claims under broadly worded provisions found in many state constitutions, and possibly under Article I or the Fourteenth Amendment of the U.S. Constitution. I also suggest that by anchoring claims to the generally-worded provisions about representation found in state constitutions and Article I, litigants can mitigate the substantial downside risk of success under the Equal Protection Clause — namely, the inducement of responsiveness-dampening bipartisan gerrymanders. The Appendix provides a state-by-state breakdown of constitutional provisions and relevant precedents, highlighting twenty-two states that appear ripe for representational-adequacy litigation.

I read an earlier draft of this—very creative and recommended!

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