Justin Levitt has written this piece for the William and Mary redistricting symposium. Here is the abstract:
When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that too much partisanship in the redistricting process violates the Constitution, but failed to agree on how much is too much (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” But this is a sprint to answer the wrong question: it is perhaps the question Justices have asked, yes, but not the one best illuminating the problem.
This paper suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish egregious unconstitutional partisanship from normal politics. In this endeavor, the nature of the intent, not the magnitude of the impact, matters most. A pivotal case just last Term reveals that the invidious intent of a state actor to subordinate others based on perceived partisan affiliation constitutes a constitutional violation, no matter the severity of any resulting injury. Testing for this intent provides the screening device the Justices seek. The proffered quantitative tests of the scholarly community may be valuable in this analysis, but not for the reason most think: they show not the threshold of impact necessary for a violation, but suggestive evidence of invidious intent.
I’ve read earlier drafts of this piece and I highly recommend it (even though I approach these issues very differently).
Download it while it is hot!