“Partisan Gerrymandering, the First Amendment, and the Political Outsider”

Bertrall Ross has posted this draft on SSRN (forthcoming Columbia Law Review). Here is the abstract:

The most recent call for judicial intervention into state partisan gerrymandering practices ran aground on the shoals of standing doctrine in Gill v. Whitford. The First Amendment stood at the center of this latest gerrymandering challenge. Democratic voters claimed that the legislative districting scheme infringed on their associational rights by denying their party an opportunity for fair representation in the state legislature. For the Gill majority, the voters’ alleged representational harm was the sort of generalized grievance that failed to satisfy standing’s particularized injury requirement.

Gill was the latest in a series of First Amendment freedom of association fights between partisan insiders — members or supporters of one of the two major political parties — that dates back to the 1970s. In these fights, the interests and needs of political outsiders — both nonvoters and those unaffiliated with the major political parties — have gone unheard and unaddressed. Political outsiders were not always marginalized in legal controversies involving the freedom of association. In fact, the Supreme Court originally constructed its First Amendment freedom of association doctrine in the 1950s to protect the political activity of dissident minority groups excluded from democratic politics.

In this Essay, I argue that advocates should return to the Court’s initial freedom of association concern with ensuring the inclusion of political outsiders’ voices in the democratic space. Gerrymandering can inflict multiple harms, on both insiders and outsiders. While partisan gerrymandering may deprive one political party of holding power in a way that corresponds to its electoral support in the jurisdiction (a “representational harm”), it can also prevent individuals who do not belong to the majority party in the gerrymandered districts from being able to effectively participate in elections (a “participatory harm”). Both political outsiders and members of the minority party experience this latter harm. I argue that the participatory harm should drive future gerrymandering challenges. Such claims could empower political outsiders, advance minority parties’ interest in fair representation, and overcome the standing obstacles laid out by the Court in Gill.

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