DEFINING A ROLE FOR THE COURTS" THE LEGAL AND STRUCTURAL IMPLICATIONS OF PRO-FEDERALISM GERRYMANDERING
The process of gerrymandering is both inherently political and ties directly into the balance of our federalism; consequently, there is a risk that, like broader issues of federalism, any standard employed by the Supreme Court to regulate gerrymandering will become politicized. As Lawrence Lessig has argued, the Court's early reliance on formalism to maintain the boundary between state and federal power made any deviation from the status quo appear political. The Court's pivot with respect to addressing the expansion of federal power brought on by the New Deal, (124) to resolving issues surrounding intergovernmental tax immunity in New York v. United States, (125) and to determining the scope of federal regulation of the states in National League of Cities v. Usury were all followed by cries of partisanship and concerns over the Court's legitimacy. (126) This has led Lessig to argue that, to avoid accusations of partisanship, the Court must "translate" federalism in order to preserve something from the framing balance in the current interpretive context. (127)
With respect to the judicial resolution of partisan gerrymandering claims, the risk of politicization is acute and likely to occur. The integration of the political economy as a result of mass political parties, (128) much like the integration of the national economy prompting Lessig's theory of translation, makes it difficult to draw any type of boundary between state and federal action. (129) Similar to its recent approach in its federalism case law, however, the Court can resolve at least some of the issues created by gerrymandering by incrementally changing the norms that govern the process of redistricting. In order to do so, the Court has to assess the broader implications of this federalism benefit and how it affects the Court's resolution of issues that emerge in substantive areas that have some impact on congressional redistricting. This approach is preferable to constructing a new cause of action that will ignore the benefits of gerrymandering and is unlikely to capture the harm. (130)
Part III.A argues that because partisan gerrymandering sits at the crossroads between two lines of precedent--election law and federalism--the difficulty of reconciling these two areas makes it virtually impossible to develop standards to directly regulate partisan gerrymandering. But the failure of direct regulation does not put an end to the questions surrounding the Court's role. As Part III.B shows, the focus on manageable standards has detracted from deeper discussions about the role that partisan gerrymandering plays in our system, a role that naturally influences questions of justiciability. Indeed, its federalism benefits implicate foundational questions about our system of government by forcing us to revisit several important questions of institutional design: whether mid-decade redistricting and at-large voting are approaches that can effectively convey voter preferences, and relatedly, whether redistricting conducted by independent commissions instead of state parties undermines the expression of these preferences. While direct judicial regulation of partisan gerrymandering may be even less desirable than previously assumed for reasons discussed below, the Court can still play a role in promoting the federalism benefits that underlie gerrymandering by resolving cases in related areas in a way that strengthens the states' ability to promote its interests through gerrymandering.
Overcoming Standards, Overcoming Law: Federalism-Reinforcing Gerrymandering and the Courts
The Supreme Court's success in articulating standards to address malapportionment and racial vote dilution have convinced many of the justices that they can have similar success with respect to partisan gerrymandering. But what should be clear, at least if I have been persuasive, is that partisan gerrymandering is different because of its federalism benefits. In light of this, the precedents in the federalism area are obstacles to devising a governing standard for gerrymandering claims. The inquiry would have to alternate between determining whether a redistricting plan is "excessively" partisan and assessing if the gerrymander accurately distributes voter preferences in a way that best represents the state's policy positions. The bright line rules that the Court has been able to articulate in its election law jurisprudence provide little guidance to answering either of these questions. Nor do any answers lie in its federalism cases, which have evolved into context specific guides that focus on defining the outer limits of congressional power.
In the election law area in particular, the Court has long struggled with issues related to redistricting, which may help explain the current impasse over gerrymandering. In Colegrove v. Green, (131) the Court held that Illinois's failure to reapportion its congressional districts did not present a justiciable cause of action. (132) The Court switched gears less than two decades later, however, finding in Baker v. Carr. (133) that the state's failure to reapportion its state legislative districts presented a potential Equal Protection Clause violation. (131) Even after the Court established the "one person, one vote" principle in Reynolds v. Sims (135) and its progeny, the doctrine was still unclear as to whether redistricting based on partisanship raised the same constitutional concerns as malapportionment.
This uncertainty persisted in part because the equipopulation principle directly contributed to increased partisan gerrymandering. (136) In Gaffney v. Cummings, the Court alluded that such claims might be justiciable, noting that, "A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed 'to minimize or cancel out the voting strength of racial or political elements of the voting population.' " (187) This caveat was the first sign that the Court was willing to punish partisan gerrymandering, speculating that it would be able to ascertain when commonly used electoral forms diminished the power of mutable groups. A decade later, in Davis v. Bandemer, (138) the Court established a cause of action for partisan gerrymandering and framed "the claim [as being] that each political group in a State should have the same chance to elect representatives of its choice as any other political group," a standard that is somewhat similar to the approach that the Court had followed in its racial gerrymandering cases, (139) To establish invidious discrimination based on partisan affiliation under Davis, a political group must show "the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole," a standard that ultimately proved to be unworkable in practice. (140)
For this reason, a mere eighteen years later in Vieth v. Jubelirer, (141) a plurality of the Court held that partisan gerrymandering claims should be non-justiciable. (142) From Justice Kennedy's perspective, rendering partisan gerrymandering claims non-justiciable would create legitimacy issues given the Court's long history of intervening in this area. (143) Yet, he reached this conclusion by ignoring the federalism implications of gerrymandering, an acknowledgement that would draw the Court even deeper into resolving questions about how states can best protect themselves from federal overreaching and might, therefore, require a noninterventionist approach.
Caution is required because the Court has had similar difficulty articulating bright line rules in cases dealing with the scope of Congress's authority under the Commerce Clause, leading the justices to question for a time whether judicial review of federalism cases is appropriate at all. (144) For example, Maryland v. Wirtz, (145) which took a broad view of Congress's power to extend the provisions of the Fair Labor Standards Act (FLSA) to state employees, was reversed less than ten years later in National League of Cities v. Usury, (146) which held that the FLSA encroached on the traditional function of the state to regulate the wages and hours of its employees. National League of Cities was overturned less than a decade later by Garcia v. San Antonio Metropolitan Transit Authority (147) on the grounds that the test established in the former case, which focused on protecting "traditional" state functions from federal power, had proven impossible to administer. The Garcia Court, over strong opposition from four justices, concluded that the failure of this test illustrated that the political process is the best protection for preserving state sovereignty from congressional overreaching. (148)
This series of 5-4 decisions regarding the scope of congressional authority under the Commerce Clause made the Rehnquist Court (and the Roberts Court, to some extent) more cautious going forward, particularly in light of the early precedents expanding the scope of congressional power in the years directly after the Founding and following the New Deal. (149) The Court has sacrificed its institutional and political capital because of the schizophrenia with which it has approached these cases. Its position has alternated from circumscribing congressional authority after years of expanding it, relegating federalism questions to the political process out of frustration, and then, shortly thereafter, reentering the fray again. As a result, the costs of exit are considerable because of the magnitude of the issues and the inconsistency of the Court's prior positions; as the New Deal period illustrates, the Court will, at times, switch paths, but only when faced with a threat to its legitimacy as an institution. (150)
To avoid losing its credibility, the Court will often retain...