FROM EDUCATIONAL ADEQUACY TO REPRESENTATIONAL ADEQUACY: A NEW TEMPLATE FOR LEGAL ATTACKS ON PARTISAN GERRYMANDERS.

• Author: Elmendorf, Christopher S.
• Position: Special Issue on Gerrymandering

TABLE OF CONTENTS Introduction 1605 I THREE DIFFICULTIES WITH PARTISAN GERRYMANDERING CLAIMS 1607 A. "Judicially Discoverable and Manageable" Standards 1610 B. Bipartisan Lockups 1615 C. Congress and the Problem of Disaggregated Redistricting 1616 II. THE EDUCATION ANALOGY : 1618 A. Of Political Thickets and Stygian Swamps: Barriers to Judicial Review 1620 1. Sparse Constitutional Text 1620 a. Education--State Constitutions 1620 b. Representation--Federal Constitution 1622 c. Representation--State Constitutions 1623 2. No Generally Accepted, Unidimensional Metric of Quality 1627 a. School Quality 1628 b. Representational Quality 1629 3. Disaggregated Decision-Making and Remedial Discretion 1631 4. Politics and Judicial Authority 1632 B. Mucking Through the Stygian Swamp: How State Courts Have Managed Education-Rights Litigation 1635 1. The Rose Template: Kitchen-Sink Liability Rulings and Legislative Remand Remedies 1636 2. Legislative Duties: Standards, Testing, and Evidentiary Records 1638 3. Provisional Injunctive Remedies 1642 III TOWARD REPRESENTATIONAL ADEQUACY CLAIMS UNDER STATE AND FEDERAL CONSTITUTIONS 1645 A.A Sketch of the Idea 1646 B.Changed Conditions 1648 C.The Three Difficulties, Reconsidered 1656 D.State Law, Article I, or Equal Protection? 1661 E.Some Objections 1665 1. Reverse-Engineered Standards and Intractable "Type II" Disputes 1665 2. Is the Legislative Duty Superfluous? 1671 3. Reviewing Maps vs. Requiring Frameworks: Separation of Powers Objections 1673 4. Dependence on Dependent State Courts 1674 CONCLUSION 1679 INTRODUCTION

The moment for legal attacks on partisan gerrymanders may finally have arrived. In the 2004 case of Vieth v. Jubelirer, all nine Justices agreed that sufficiently extreme partisan gerrymanders would violate the Equal Protection Clause, but the Court split 4-1-4 on whether these claims are justiciable, with Justice Anthony Kennedy straddling the fence. (1) As this Article goes to press, advocates and observers are eagerly awaiting the Supreme Court's decision in Gill v. Whitford, an appeal of the first trial court decision since the 1980s to invalidate a state legislative map as an unconstitutional partisan gerrymander. (2) The lower court's decision in Whitford was soon followed by favorable preliminary rulings in other cases in Maryland and North Carolina. (3)

Echoing the diversity of thought among legal academics, parties, and amici in these cases have advanced a broad range of ideas about whether and how courts should police partisan gerrymanders. But common to all proposals on offer is a shared assumption about the judicial role: if a constitutionally discernable and judicially manageable standard for policing excessive partisanship exists, it is the courts' responsibility to discover and apply it. This Article suggests that courts might instead recognize an implied legislative duty to enact a reasonable redistricting framework, including standards for the "representational adequacy" of legislative maps. Legislatures, not courts, would craft the legally operative standards.

This approach would allow courts to find a constitutional violation (abdication of the legislative duty) without committing to a particular measure of partisan fairness, and without drawing a contestable line between adequate and inadequate fairness. It would also allow courts to delay any decision about remedies. If the legislature in question did not respond by enacting a reasonable framework for redistricting, the court eventually could establish its own judicially manageable standards, but the judge-made standards would be expressly provisional and subject to legislative revision. By casting judge-made standards as a temporary response to the legislature's failure to act, the court would be able to make the standard constraining--which many judges seem to think necessary for manageability--without holding, implausibly, that the Constitution entails that particular standard. Importantly, too, the approach I suggest would allow courts to police partisan gerrymanders without inducing the creation of bipartisan gerrymanders, a likely but unwelcome byproduct of successful equal protection attacks on partisan maps.

The legislative-duty approach might seem unprecedented, but it closely parallels what many state courts have done in cases under the broadly worded education clauses found in nearly all state constitutions. That education rights jurisprudence may hold lessons for judicial management of partisan gerrymandering litigation is suggested by some striking but previously unremarked parallels between these domains: The relevant constitutional text is sparse. There is no social scientific or political consensus about how to measure the quality of the system (schools or legislative districts), let alone about where to draw the line between minimally adequate and constitutionally unacceptable quality. Constitutional injuries may arise from the disaggregated, uncoordinated decisions of numerous independent actors. Plaintiffs' claims, if vindicated, would seem to leave trial courts with enormous remedial discretion. And the claims are acutely politically sensitive.

Yet, whereas federal courts have long resisted partisan gerrymandering

claims, most state courts have rejected the corresponding nonjusticiability arguments in educational adequacy cases. (4) Instead, state courts have developed coping mechanisms that mitigate the justiciability problems, including the articulation of legislative duties apparently designed to bring into being more judicially manageable standards and the issuance of provisional injunctive remedies, which the legislature may supplant.

I shall argue that similar strategies could be fruitfully deployed in gerrymandering-of-the-statehouse claims brought under the "free and open elections" or similar provisions found in many state constitutions. Analogous gerrymandering-of-Congress claims might eventually be brought under Article I of the U.S. Constitution, though litigants would be wise to establish state law precedents first.

Whatever the Supreme Court decides in Whitford, there will almost certainly be an important role for state courts to play in redistricting litigation going forward. If the Court holds partisan gerrymandering claims nonjusticiable, or announces a standard that will rarely, if ever, be met, then most of the action will shift to state courts. Alternatively, if the Court constitutionalizes a rigorous partisan symmetry requirement, state courts will probably be needed as a backstop against responsiveness-dampening bipartisan gerrymanders. Either way, the arguments and analogies developed in this Article open a new line of attack for litigators concerned with the overall health of democratic systems.

I proceed as follows. Part I briefly describes the doctrinal and pragmatic problems with partisan gerrymandering claims as presently litigated. Part II develops the analogy to educational adequacy, and explains how state courts have managed adequacy litigation. Part III sketches an adequacy-informed template for gerrymandering litigation and responds to objections. The table in the Online Appendix provides a state-by-state summary of the constitutional provisions and education precedents germane to representational adequacy litigation. (5) I highlight twenty-two states where text and precedent suggest a particularly favorable environment for plaintiffs.

1. THREE DIFFICULTIES WITH PARTISAN GERRYMANDERING CLAIMS

   In determining that equal protection entails the rule of one person, one vote, the Supreme Court in Reynolds v. Sims famously explained that malapportioned legislative districts deprive citizens in the overpopulated districts of "equally effective voice," improperly empowering a minority of the voters to elect a majority of the representatives. (6) Soon afterwards, the Court also acknowledged that even equally populated districts could work a similar constitutional harm, insofar as the design of the districts in combination with voter preferences operates to "minimize or cancel out" the electoral voice of a politically distinct segment of the community. (7) These ideas have anchored partisan gerrymandering litigation ever since.

   But equal protection challenges to partisan gerrymanders have not lived up to plaintiffs' hopes. In the 1986 case of Davis v. Bandemer, the Supreme Court glossed "minimize or cancel out" so as to all but guarantee that partisan gerrymandering claims would never succeed. (8) When the Justices returned to the matter two decades later, in Vieth v. Jubelirer, they agreed that Bandemer was useless but split on what to do about it. (9) A four-Justice plurality, led by Justice Antonin Scalia, argued that partisan gerrymandering claims were nonjusticiable for want of a judicially discoverable and manageable standard. (10) Justice Kennedy concurred but only provisionally; he allowed that partisan gerrymandering claims might become justiciable, if only litigants could develop a legal standard that substantially constrained judicial discretion ("manageable") while being closely tethered to the Constitution ("discoverable"). (11) The dissenting Justices issued three opinions, each propounding a different standard. (12)

   In the most recent go-round, League of United Latin American Citizens (LULAC) v. Perry, Justice Kennedy expressed his continuing dissatisfaction with the standards on offer, including a prophylactic rule against mid-decade redistricting. (13) But Justice Kennedy and others hinted that they might consider claims founded on some metric of "partisan symmetry," a political science term for balance in the translation of vote shares into seats. (14) (To illustrate, a map of legislative districts is asymmetric with a pro-Democratic bias if a Democratic vote share of 55 percent would probably garner 65 percent of the seats but a Republican vote share of 55 percent would probably leave the Republicans with only 60...