"Partisan Gerrymandering as a Safeguard of Federalism"

Franita Tolson has posted this draft on SSRN (forthcoming Utah Law Review). Here is the abstract:

Partisan gerrymandering has been criticized as stifling political accountability and voter participation, and as anti-competitive and harmful to democracy. This article offers a dissenting view: that partisan gerrymandering, though sometimes antagonistic to democratic ideals, can potentially be democracy-enhancing and federalism-reinforcing. This article provides the first scholarly treatment of the constitutionality of partisan gerrymandering as a structural safeguard of federalism. Building on the political safeguards literature developed by Herbert Wechsler over fifty years ago, this article contends that partisan gerrymandering links state and federal officials in a way that can protect the states' regulatory authority.

Pursuant to their power under Article I, Section 4, Clause 1 of the Constitution, commonly known as the Elections Clause, states can create politically homogenous districts and send an ideologically cohesive House delegation to Congress in order to influence federal policy in ways favorable to their interests. Given the controversy over the bailout, the stimulus package, and "Obamacare," the states' redistricting authority remains one of the few historical and textually-based vestiges of power that states can use to influence federal policy.

Part I of this article discusses the Supreme Court’s decision in Vieth v. Jublierer which, contrary to much of the caselaw, treats partisanship in redistricting as "expected," and "constitutional." This section also explores how later decisions validating mid-decade redistricting have increased the possibility that partisan gerrymandering can serve as a political safeguard. Part II builds on this foundation and argues that the Elections Clause serves as a textual anchor to support the constitutionality of partisan gerrymandering as a federalism safeguard. Finally, Part III considers the constitutional structure which, because of the link between state and federal officials in redistricting, requires congressional representatives to be responsive to both their constituents and to the state itself in order to be reelected. As the analysis in Parts I, II, and III will show, the expansion of federal power makes states more likely to use their redistricting power going forward to maneuver their House delegations toward their policy preferences.

I read this interesting piece in draft. Recommended.

Posted by Rick Hasen at September 10, 2010 09:55 PM