“Gerrymandering and the Constitutional Norm Against Government Partisanship”

This looks good! Michael Kang has posted this draft on SSRN (forthcoming, Michigan Law Review). Here is the abstract:

The Article challenges the basic premise in the law of partisan gerrymandering that government partisan purpose is constitutional at all. The central problem, Justice Scalia once explained in Vieth v. Jubelirer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking. The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a purpose-focused approach that identifies partisanship as an illegitimate basis for lawmaking and requires the government to justify its redistricting with reference to legitimate state interests beyond partisanship, irrespective of extreme partisan effects. The importance of consolidating and reifying the norm against government partisanship, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime.

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