Finding a Path Through the Political
Thicket: In Defense of Partisan
102 Cal. L. Rev. 917
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol102/iss4/5
In 1986, the U.S. Supreme Court declared partisan gerrymandering unconstitutional; in 2004, the Court declared it nonjusticiable. In between and since, scholars have debated over the precise harms of partisan gerrymandering, the wisdom of judicial intervention, and the feasibility of separating unconstitutional from legitimate redistricting schemes. This Comment adds to that literature by drawing for the first time on the forty cases decided between 1986 and 2004, when lower courts, attempting to follow the Supreme Court's direction to strike down unconstitutional gerrymanders, crafted a variety of tests to differentiate legitimate from illegitimate redistricting schemes. It excavates that case law in the service of rebutting Justice Antonin Scalia's two arguments in favor of nonjusticiability. First, this Comment argues that, far from the chaotic proliferation of standards depicted by Justice Scalia, the variety of tests put forth by scholars, Supreme Court Justices, and lower courts contain an internal analytic coherence. This Comment models the universe of possible tests along three axes: the phase of redistricting examined, the measurement used to identify excessive partisanship, and the diagnostic framework used once the first two trigger conditions are met. In so doing, this Comment attempts to identify a path through the political thicket, confining the question of partisan gerrymandering to three discrete judicial decisions. Second, this Comment responds to Justice Scalia's contention that, despite the proliferation of standards, there are no judicially manageable standards. Drawing on one possible partisan gerrymandering test among many-a map-based, objective, scrutiny test in this Comment's taxonomy-this Comment demonstrates how any criticisms leveled at the test could equally be leveled against traditional Equal Protection Clause (EPC) jurisprudence. This Comment closes with a meditation on justiciability, arguing that Justice Scalia's treatment of partisan gerrymandering demonstrates that, in lieu of a single-variable test of manageability, justiciability is actually a balancing test between manageability and the severity of the perceived harm. Candor about this second criterion will result in a more fair and transparent justiciability jurisprudence.