William & Mary Bill of Rights Journal
Abstract
Partisan gerrymandering is widely recognized as a threat to the foundations of our democracy. Political parties with control over their state legislatures routinely leverage the redistricting process to entrench themselves in power—suppressing political adversaries, chilling public participation, and polarizing the electorate. Nevertheless, despite a persistent recognition that partisan gerrymandering is incompatible with basic democratic principles, the Supreme Court struggled to develop a stable and consistent doctrinal approach to this issue, even as reliable standards emerged to adjudicate malapportionment and racial gerrymandering claims. Recently, in Rucho v. Common Cause, the Court abandoned the search entirely, holding that partisan gerrymandering is a nonjusticiable political question, grounded in impossible quantifications of fairness that leave it too amorphous for the federal courts to review.
This Article challenges the Supreme Court’s political question holding, diagnoses the breakdown of federal partisan gerrymandering doctrine, and argues in favor of an intent-based framework. Part I invokes Professor John Hart Ely’s theory of representation-reinforcing review to argue that the political question doctrine is an exploration of political discretion, and that courts have authority to overturn laws that restrict the democratic process. Part II asserts that the Supreme Court’s decision to frame partisan gerrymandering doctrine around a map’s impact on future elections, rather than the predominant intent of the mapmakers, was the source of its inability to develop manageable standards and the genesis of the doctrine’s collapse. Part III provides a unique, comprehensive synthesis of leading state and federal gerrymandering cases under the rubric of predominant legislative intent. The result is a manageable, proof-of-concept standard for partisan gerrymandering that guards against the worst distortions of the democratic process, while preserving the separation of powers and addressing the prudential concerns that hindered the evolution of this doctrine.