William & Mary Law Review


Justin Levitt


When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that an excessive injection of politics in the redistricting process violates the Constitution, but failed to agree on what is excessive (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” This effort is a sprint to answer the wrong question. It is perhaps the question Justices have asked, but not the one best illuminating the problem.

This Article suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish egregious unconstitutional partisanship from normal politics. In this endeavor, the nature of the intent, not the magnitude of the impact, matters more. A pivotal case from the October 2016 Term reveals that the invidious intent of a state actor to subordinate others based on perceived partisan affiliation constitutes a constitutional violation, no matter the severity of any resulting injury. Testing for this intent provides the screening device the Justices seek. Furthermore, this analysis reveals that the scholarly community’s quantitative tests to assess gerrymandering are valuable, but not for the reason most think: not because they show the threshold of impact necessary for a violation, but because they offer suggestive evidence of invidious intent.

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