Benign partisanship.

• Author: Tolson, Franita
• Position: State interests and congressional redistricting - Introduction through II. The House as the Locus of Democracy? The Senate as the Voice of the States? Fixing the Political Safeguards Narrative, p. 395-427

The Framers of the United States Constitution created our system of federalism based on the principle that political safeguards would protect the regulatory interests of the states from overreaching by the federal government. While many of these safeguards have since failed, others have emerged to insulate the states from an ever-expanding federal presence. One such safeguard is partisan gerrymandering, which allows states to draw legislative districts that reflect the partisan affiliation of a majority of the electorate, and in turn, send a delegation to Congress that is as ideologically cohesive as practicable. In making this argument, this Article corrects a basic misunderstanding in the political safeguards literature: that the Senate is the only chamber that the Framers constructed to protect state interests. In reality, a politically cohesive House delegation can ensure that the state's preferred policy preferences shape federal lawmaking.

This Article also illustrates that, in the context of congressional redistricting, the legal scholarship's sole focus on ascertaining manageable judicial standards ignores the concerns about institutional legitimacy and judicially dictated political outcomes that are exacerbated by the federalism issues in this area. Despite the absence of standards, the broader structural implications of promoting "federalism-reinforcing" gerrymandering require the Supreme Court to craft rules that encourage the use of mid-decade redistricting and at-large voting schemes; that limit the authority of independent commissions to draw redistricting plans; and that promote strong state political parties, all of which will help preserve the states' ability to utilize the federalism benefits that flow from partisan redistricting.

INTRODUCTION

The United States Constitution is a complex allocation of checks and balances, designed to reduce politics to competition between the branches and levels of government, and in the process, eliminate the need for political parties in our system. (1) Yet political parties emerged soon after ratification, rendering the checks and balances that the Framers hoped would stymie faction obsolete, and turning every aspect of our electoral system, from adopting legislation to conducting elections, into political endeavors centered on competition between the two major political parties.

Redistricting has emerged as the most political of these endeavors, in part because of a concept that received its name shortly after ratification: partisan gerrymandering. (2) As a country, we have struggled to control the partisanship that occurs in the redistricting process, viewing it as a boogeyman that seeks to perpetuate the power of a select few at the expense of the many. Even when the lines are drawn by a nonpartisan commission, (3) a special master, (4) the courts, (5) or a major political party, (6) the process can become infected by partisan bias. (7)

By implication, the judicial review of partisan gerrymandering is inescapably intertwined with the political nature of the redistricting process, giving any decisions a certain taint, a "dirtiness" that is typically associated with politics. (8) For this reason, a plurality of the Supreme Court wants to render partisan gerrymandering claims nonjusticiable, (9) but perhaps, as some scholars argue, we need the courts to serve as a gatekeeper of sorts, to keep the partisanship from compromising both the interests of the voters and the efficacy of the electoral system as a whole.

Despite these conflicting propositions, the question of justiciability cannot be resolved without appropriate consideration of a fact that has been overlooked by both the legal scholarship and the courts: that the process of congressional redistricting is a political safeguard that helps insulate the states' regulatory authority from federal overreaching. The Framers devised the House of Representatives to give citizens a voice in the new government and, along with the Senate, to protect the states. (10) This latter role is fulfilled when states draw districts for their House delegations, allowing states to influence not only who serves, but also what policies will be promoted on the national stage. (11) As I have argued elsewhere, partisan gerrymandering is a safeguard of federalism because states can create safe, partisan districts pursuant to their power under the Elections Clause, and use this redistricting authority as leverage to influence their congressional delegations and in turn, federal policy, in ways favorable to their interests. (12) In order to properly account for this federalism interest, I offer a new perspective on the justiciability of partisan gerrymandering claims, a perspective that also has broader implications for federalism doctrine and judicial review more generally.

In this Article, I argue that the partisan gerrymandering of congressional districts is not suitable for direct judicial regulation because courts cannot adequately value its federalism benefits in the already complicated manageable standards inquiry. Nevertheless, both the courts and the legal scholarship must take heed of the fact that the federalism implications of partisan gerrymandering influence the scope of judicial review with regards to other substantive areas of law. Notably, the lack of manageable standards does not deprive the Supreme Court of its responsibility to guarantee that its broader jurisprudence does not undercut the ability of states to use their constitutionally mandated redistricting authority in a federalism reinforcing way. Along these lines, the focus of this Article is less about determining whether judicial review is desirable, or ascertaining what the governing standards for partisan gerrymandering claims should be; instead, this Article seeks to redefine the role of the Court in regulating politics by taking the long view of what the structural implications of partisan gerrymandering mean for the judicial review of politics more generally.

In making this argument, this Article bridges the gap between the election law and federalism literatures, both of which tend to ignore or minimize the link between federalism as a framework for diffusing power among the dual sovereigns and the electoral rules that facilitate this process by giving the states a role in the composition of the federal government. (13) Recognizing this link provides a sounder theoretical basis for understanding how power is shared and distributed between the states and the federal government, and how our electoral system reinforces the connection (and competition) between the two levels of government.

The 2003 mid-decade redistricting of Texas's congressional districts provides a concrete example of the intersection between federalism and election law. After the 2000 census, Texas instituted a court-ordered redistricting plan because of a deadlock in the legislature, but in 2003, after the Republicans gained control of both houses, they re-redistricted both the state legislative districts and the congressional districts. The Supreme Court, in League of United Latin American Citizens v. Perry (hereinafter LULAC v. Perry or LULAC), held that the mid-decade character of the 2003 plan, which the plaintiffs argued was solely motivated by partisan gain, did not violate the Constitution. (14) Indeed, the plan was largely reflective of the fact that the Republican Party had a large majority in both the electorate and the state government by 2002; unrecognized by the Court, however, is that sending a congressional delegation that reflects this majority is a rough proxy for ensuring that Texas's state interests are represented nationally. (15) Partisan congruence between the electorate, the state leadership, and the congressional delegation arguably has value in promoting the state's interests at the national level. (16)

Thus, those debating the question of whether constitutional claims of partisan gerrymandering should be justiciable have to consider the federalism benefits that emerge from the gerrymandering of congressional districts, whether the Court can properly value this benefit, and the broader implications of promoting this type of gerrymandering in our system. The LULAC plurality implicitly acknowledged that there was some intrinsic value in having the state's congressional delegation mirror the distribution of power statewide but fell short of explicitly ascribing any federalism benefits to the redistricting plan. (17) Indeed, in the view of some of the Justices, the need for a more accurate distribution of political power did little to validate the state's partisan decision to re-redistrict mid-decade. (18)

Much of their recalcitrance stems from the Court's cabined view of partisan gerrymandering as solely an "election law" issue. Part I challenges this assumption and situates partisan gerrymandering in the federalism literature, which helps to reorient the discussion and better resolve the issues surrounding institutional competency and standards that have been the focal point for election law scholars. The federalism debate has been fixated on restoring the balance of power between the states and the federal government, with an equal focus on whether the Court is capable of policing the boundary between the two spheres. (19) This section reveals how partisan gerrymandering, as an "extra-constitutional safeguard" of federalism, can help shift the balance, which has...