Crafting a Judicially Manageable Standard for Partisan Gerrymandering: Five Necessary Elements

Abstract

Beginning with a definition of gerrymandering, and after a brief review of the evolution of the case law on partisan gerrymandering, I propose five necessary elements of a test for when partisan gerrymandering rises to the level of unconstitutionality: (a) a clear and severe injury involving a disparate impact on a political party that serves as the vehicle for the expression of particular ideas and values; (b) effects that can be expected to be durable; (c) effects that can be shown not to be explicable either by features of the partisan electoral geography that impact all plans, or by chance; (d) evidence that there exist one or more remedial plans that address the constitutional violation while also satisfying, on balance, all relevant constitutional and statutory criteria at least as well as the challenged plan; and (e) compelling direct or indirect evidence of invidious partisan intent. I link these five elements to recent Supreme Court and district court opinions about an appropriate standard for partisan gerrymandering.