“The Missing Link in Gerrymandering Jurisprudence”

Ned Foley on Whitford:

Thus, this new computer-assisted statistical approach can be used to identify what the constitutional principle was looking for: an egregious partisan gerrymander.  Strictly defined, and precisely measured, an egregious partisan gerrymander is one that is identified as an outlier using this new computer-generated statistical technique.

Several amicus briefs in Gill invoke this new statistical technique as the method for enabling the Court to articulate a judicially manageable standard to identify unconstitutional gerrymanders.  One brief that discusses the technique in particular detail—and does so lucidly—is submitted on behalf of Eric Lander, the President of the Broad Institute of Harvard and MIT.  The ACLU’s brief, in turn, does an effective job linking the statistical technique to the First Amendment’s requirement that the government regulate political competition between parties without improperly giving one party an excessive competitive advantage.

For Justices on the Court who are historically minded in their overall constitutional jurisprudence, and who thus wish to ground the constitutional analysis of partisan gerrymandering on relevant historical considerations, the new computer-generated statistical technique also can be linked to a history-based approach.  How so? First, the relevant history demonstrates that the original Gerry-mander of 1812—along with all partisan manipulations of legislative maps that are similarly egregious—has been regularly and vigorously condemned as inconsistent with the fundamental principles of popular sovereignty established in the original Constitution and reaffirmed in the Fourteenth Amendment.  Indeed, throughout the nineteenth century, the very practitioners of these egregious partisan gerrymanders recognized that they were acting contrary to constitutional principles, but the pressure of partisan politics prevented them from adhering to the Constitution as they knew they should.  This point is made effectively in an amicus brief submitted by a group of distinguished historians, and it is also emphasized in my own recent scholarship.

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