In his concurrence in Vieth v. Jubilirer, Justice Kennedy suggested that the First Amendment provides a “sounder and more prudential basis” for judicial intervention in partisan gerrymandering “than does the Equal Protection Clause.” Our amicus brief on behalf of the ACLU and its affiliates takes up Justice Kennedy’s invitation by providing a First Amendment approach grounded in the principle of government neutrality in regulating private expression in the public domain. Although the state may speak on its own behalf as a participant in the marketplace of ideas, it can’t fix marketplace rules to ensure its preferred viewpoints prevail over popular competition. This neutrality principle takes on special force in the democratic process, particularly in the area of election administration, where self-dealing by the government can undermine the competitive mechanisms essential to electoral accountability to shifting voter preferences.
Not every limitation on the right to vote requires judicial intervention. Some burdens on the franchise are unavoidable. The Court has held that some partisan considerations are inherent and permissible in the apportionment process. But some burdens so alter the nature of the franchise that they deny a citizen’s inalienable right to full and effective participation in the political process. Where a state uses its apportionment power to enact a map designed to resist changes in voter preference in order to award its preferred political party a legislative monopoly, it impairs the integrity of the democratic process. The crux of our First Amendment argument is that a redistricting plan that disables the competitive mechanism that gives elections legitimacy debases voters’ rights to cast a meaningful ballot and to associate for political purposes.
To address this harm, we propose a burden-shifting approach generally applied to challenges to government discrimination on the basis of political activity. Like the district court, our burden shifting approach asks separately about the legislative intent behind a redistricting plan and the effect of that plan. The intent prong considers whether the state drew its redistricting plan to entrench its preferred party in office. This prong considers classic evidence of legislative intent that has factored into other redistricting cases—contemporaneous statements, political history, erratic procedures, and irregular district shapes. The effects prong has long presented a more complicated question, but we found a ready analog in pattern-or-practice cases under the civil rights laws. To determine whether an apportionment plan gives effect to a state’s intent to entrench, we propose that courts inquire whether a challenged map significantly deviates from the state’s normal range of partisan balance in favor of the state’s preferred party in a way that will endure any likely electoral outcome. Like the pattern-or-practice cases, our standard is suited to considering empirical evidence within the framework of a “totality of the circumstances” approach. This approach sets a discernible threshold for establishing a prima facie case, but gives district courts latitude to exercise their role as finders of fact and to consider both existing and emerging methods of analysis as well as probative qualitative evidence.
A key feature of this proposed standard is that the burden-shifting does not end the trial court’s inquiry, but instead only provides the predicate for demanding that a state provide a legitimate basis for its map—as the district court did here. This approach offers both the parties and the court manageable but meaningful burdens of production in trying partisan gerrymandering cases. First, the standard does not require plaintiffs to present irrefutably dispositive empirical evidence to establish a prima facie case, only sufficient, cumulative evidence to compel justification. Second, the standard only requires defendants to offer legitimate, rather than compelling, justifications for a challenged plan—although the plan must be necessary to advance those legitimate interests. And third, the standard is sufficiently clear and demanding to deter unmeritorious cases and to provide courts with guideposts for assessing liability that are well-defined but not rigid.