Ned Foley on What the Supreme Court Should Do in the Partisan Gerrymandering Cases

Ned writes:

The two pending cases to be argued March 26 — Rucho v. Common Cause and Lamone v. Benisek, the first from North Carolina and the second from Maryland — attack congressional gerrymanders on multiple grounds: primarily, the First Amendment; and secondarily, Equal Protection and Article I.

The First Amendment and Equal Protection challenges suffer from what seems to be a conceptual difficulty. But the same problem does not afflict the Article I claim. There are additional reasons, moreover, why the correct understanding of Article I leads to a modest and appropriate role for judicial invalidation of extreme gerrymanders that function as obstacles to the electorate’s ability to remove incumbent representatives whose performance in office the electorate repudiates. The Court, therefore, should embrace Article I as a basis for judicial review of congressional gerrymanders pursuant to the exercise of its interpretative authority under Marbury v. Madison, while simultaneously eschewing the First Amendment and Equal Protection as grounds for this review.


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