Twice in the last two decades, the Supreme Court has come within two votes of declaring partisan gerrymandering – the manipulation of district lines for partisan ends – a nonjusticiable political question. Last Term, in Vieth v. Jubelirer, Pennsylvania Democrats challenged an alleged Republican gerrymander of the state's congressional districts. Four members of the Court thought the question nonjusticiable, and one, Justice Kennedy, thought it justiciable under the Equal Protection Clause but nonetheless rejected the plaintiffs claims. Eighteen years earlier, in Davis v. Bandemer, a three-Justice plurality had held that a political group complaining of partisan gerrymandering – the Democratic or the Republican Party, as the case may be-could proceed with its equal protection claim, but only upon a showing that it had been "denied its chance to effectively influence the political process."
Such a test being, in effect, impossible for a major political party to meet, Bandemer's promise that federal courts would be open to partisan gerrymandering claims has proven an empty one. Indeed, despite widespread belief that partisan gerrymandering impermissibly calcifies the democratic process, complaints alleging it rarely survive motions to dismiss. Thus, even while conceding that severe partisan gerrymanders are inconsistent with democratic principles, Justice Scalia wrote for the Vieth plurality that "no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged."
But a curiosity persists. While the Vieth plurality may be correct that the standard for judging partisan gerrymandering claims under the Equal Protection Clause has been filled with peril, the Court's own jurisprudence potentially supports analysis of such claims under a very different constitutional provision. The central difficulty of using the Equal Protection Clause in partisan gerrymandering cases is that equal protection analysis relies on evaluating the permissibility of a given classification; unlike racial classifications, the Court does not generally view political classifications as per se impermissible. In Cook v. Gralike, however, seven members of the Court, Justice Scalia among them, backed the proposition that Article I, Section 4 of the Constitution, which grants state legislatures the power to regulate the times, places, and manner of holding elections for Congress, limits that power to so-called "'procedural regulations.'" It does not grant states the authority to "attempt to 'dictate electoral outcomes.'"
If this broad language is to be taken seriously, its reach is monumental. The Gralike Court had to decide whether the Missouri legislature could designate on the ballot whether congressional candidates supported a federal term limits amendment. Whether these actions represent "attempts to 'dictate electoral outcomes"' seems a much closer question than whether partisan gerrymandering does so. Even ardent defenders of the practice acknowledge that in purposefully manipulating district lines, state legislators hope to dictate electoral outcomes at least as much as proponents of pejorative ballot labels do." Proponents and opponents of gerrymandering disagree only on the propriety of doing so.
Judging Partisan Gerrymanders Under the Elections Clause,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/260