Jim Gardner: The Promise of State Constitutional Challenges to Partisan Gerrymandering

Jim Gardner has written this post on a new election law litigation project of his:

I’d like to thank Rick for inviting me to blog about a redistricting legal challenge in which I’m involved.  The case, Pearson v. Koster, is a partisan gerrymandering challenge to Missouri’s new congressional redistricting plan, which creates six safe Republican districts and two Democratic districts in a state that is much closer to evenly balanced than these numbers suggest.  I’m excited about the litigation because the challenge is proceeding solely under the Missouri Constitution.

As readers of this blog well know, partisan gerrymandering claims brought under the Equal Protection Clause of the U.S. Constitution have been stalled to the point of uselessness.  In a series of splintered opinions beginning with Davis v. Bandemer (1986), the Court has recognized the existence and justiciability of such claims, yet has been unable to agree on a standard under which they might be successfully brought.  As a result, not a single partisan gerrymandering claim brought under the U.S. Constitution has ever resulted in the invalidation of a redistricting plan.

In a 2004 article, A Post-Vieth Strategy for Litigating Partisan Gerrymandering Claims, 3 Election Law Journal 643 (2004), I argued that state constitutions might be more promising avenues for constraining partisan gerrymandering than the federal Constitution, for two reasons.  First, such claims may simply be more promising on the merits.  Unlike the U.S. Constitution, which says virtually nothing about the conduct of elections, state constitutions are filled with provisions regulating the electoral process.  Such provisions typically include an expressly granted right to vote; express protections for the right to vote, such as a requirement that elections be “free and equal” or “free and open”; and specific instructions concerning the drawing of districts, such as requirements of compactness and contiguity, and prohibitions on dividing local municipalities and communities of interest.  These kinds of provisions are capable of providing the traction so often lacking in claims hitched to the U.S. Equal Protection Clause.

Second, adjudicating partisan gerrymandering claims under state constitutions might ultimately help the U.S. Supreme Court settle on a standard for adjudicating such claims under the federal Constitution.  Justice Kennedy, who cast the swing vote in Vieth, declined to invalidate the plan challenged there mainly on the ground that “there are yet no agreed upon substantive principles of fairness in districting.”  However, he went on to say that he would be willing to consider similar claims in the future “[i]f workable standards do emerge for measuring the burden a gerrymander imposes on representational rights.”  Adjudication under state constitutions has the potential eventually to supply such a standard.

These contentions are being put to the test in the current Missouri litigation.  The plaintiffs have raised claims arising under the state constitution’s right to vote clause, a district compactness clause, a state equal protection clause, a “good of the whole” and a “general welfare” clause, and, most promising in my view, the “free and open elections” clause, a clause that exists in many state constitutions but has rarely been either litigated or construed.  Missouri, moreover, is a promising venue in which to bring these claims.  Blog readers may recall that in 2006 the Missouri Supreme Court invalidated a photo-ID requirement under the state constitution’s right-to-vote clause.  In so doing, the court expressly rejected the U.S. Supreme Court’s reasoning in Crawford upholding Indiana’s photo-ID requirement on the ground that “the more expansive and concrete protection of the right to vote under the Missouri Constitution [confers] greater protection than its federal counterpart.”  Missouri is thus a jurisdiction with not only a state constitution bristling with promising textual hooks for partisan gerrymandering claims, but a supreme court that has already shown itself willing to invoke the state constitution in cases claiming burdens on the right to vote.

Stay tuned!  Litigation documents, including an Amended Petition and briefing on a pending motion to dismiss can be found here.



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