Sam Wang, Richard Ober, & Ben Williams have posted this draft on SSRN. Here is the abstract:
Despite multiple opportunities to address the issue, the Supreme Court has declined to take action on partisan gerrymandering. Here we argue that the Court has successfully laid out several intellectual paths toward effective regulation – but that the best route for applying such reasoning goes not through federal law, but state constitutions. In Gill v. Whitford, 138 S.Ct. 1916 (2018), Chief Justice Roberts and Justice Kagan proposed differing theories for justiciable tests for partisan gerrymandering. Chief Justice Roberts described how a claim of individual harm to a voter could lead to a valid claim in a single district. Justice Kagan described how a claim of associational harm could be advanced at a statewide level. We propose that Roberts’ and Kagan’s theories can be used to bring partisan gerrymandering challenges in state court, with claims based on state constitutions and not the U.S. Constitution. We argue that such a federalist approach offers the most promising route to remedying partisan gerrymandering in America. All fifty state constitutions contain rights and protections which could be used to bring a partisan gerrymandering claim. These include analogues of the First and Fourteenth Amendments, guarantees of pure, free, and fair elections, and redistricting-specific guarantees such as geographic compactness. Because each of these protections involves either individualized or associational harms, the Roberts and Kagan opinions offer state courts persuasive guidance for how to analyze their own constitutional provisions to a partisan gerrymandering claim. Advancing such claims on a state by state basis allows courts to adapt the reasoning to local circumstances. Taken together, our arguments describe a federalist approach for eliminating partisan gerrymandering, a major bug in American democracy.