Franita Tolson has posted this draft on SSRN. Here is the abstract:
The debate over whether partisan gerrymandering claims are justiciable reveals a Supreme Court that is at war with itself. The Court first found these claims to be actionable in Davis v. Bandemer on equal protection grounds, but switched gears a mere eighteen years later in Vieth v. Jubelirer. In Vieth, a plurality of the justices argued that partisan gerrymandering presented a non-justiciable political question because of the lack of manageable standards, while three of the remaining justices offered their own proposals for regulation. This impasse has led scholars to alternate between developing their own standards, premised on an individual rights conception of the harm from gerrymandering, or calling for a “structural” approach to resolving these disputes, in which courts treat gerrymanders as political lock ups and police them with easily administrable bright lines rules. Although structuralists have come to dominate the literature, both approaches fail to adequately conceptualize partisan gerrymandering because neither the Court nor these scholars have acknowledged that it has federalism benefits that must be accounted for in developing standards.
The thesis of this Article is that partisan gerrymandering is a political safeguard of federalism, but courts cannot properly value this federalism benefit and should therefore police gerrymandering indirectly. This federalism benefit emerges because states can draw legislative districts along partisan lines in order to increase the probability that its delegation to the U.S. House of Representatives will reflect the partisan composition of a majority of the electorate and the majority party of the state. A delegation that is as cohesive as practicable will ensure that the state’s preferred policy preferences are expressed at the federal level. These preferences are determined, not by reference to the wants and desires of elected officials, but by path dependent processes, or constraints imposed by the state’s institutional framework, that limit the ability of official decisionmaking to veer too far from voter preferences.
This Article illustrates that, in the context of congressional redistricting, the sole focus on manageable standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated because of the related federalism issues in this area. In other words, even if governing standards can be developed, the federalism implications of partisan gerrymandering demand indirect regulation through prophylactic rules like section 2 of the Voting Rights Act. The Court has used section 2’s prohibition on racial vote dilution to police partisan gerrymandering in the past. This approach respects its federalism potential and the institutional limitations of the judiciary while protecting democratic norms through section 2’s focus on equality of representation.
A provocative and well-done paper.