GERRYMANDERING AND THE CONSTITUTIONAL NORM AGAINST GOVERNMENT PARTISANSHIP.

• Author: Kang, Michael S.

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it "has gone too far," giving rise to the intractable inquiry into "how much is too much." But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking.

The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a new approach focused on legitimate state interest and partisan purpose, building on a constitutional norm against government partisanship. The importance of consolidating and reifying this norm, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime.

TABLE OF CONTENTS INTRODUCTION I. LAW OF PARTISAN GERRYMANDERING AND VIETH v. JUBELIRER A. Vieth and the Quest for a Manageable Standard B. An Alternate View II. THE PROBLEM OF GOVERNMENT PARTISANSHIP IN CONSTITUTIONAL LAW A. First Amendment Law B. Equal Protection and Second-Order Review of Redistricting C. Election Administration and Voter Identification Laws III. THE CONSTITUTIONAL NORM AGAINST PARTISAN GERRYMANDERING A. A Way Forward Against Partisan Gerrymandering B. Substantive Payoffs Beyond Gerrymandering: The Challenge of Hyperpolarization CONCLUSION INTRODUCTION

Gerrymandering for partisan advantage is so well ingrained that Justice O'Connor once remarked that refusal by politicians in charge of redistricting to seek party advantage should be grounds for impeachment. (1) The routine, historical entanglement of partisanship with redistricting long discouraged courts from entertaining constitutional claims against partisan gerrymandering. Even after the Supreme Court declared the justiciability of such claims, it has since stumbled to articulate a manageable standard for adjudication. The "central problem," as Justice Scalia put it in Vieth v. Jubelirer, is how to set a standard that properly measures "when political gerrymandering has gone too far" given that " [t] he Constitution clearly contemplates districting by political entities, and unsurprisingly that turns out to be root-and-branch a matter of politics." (2) The core premise that partisanship "is a traditional criterion [in the law of politics], and a constitutional one" (3) leads necessarily to the analytical challenge of sorting out permissible partisanship from "how much is too much." (4) But the premise that partisanship is an "ordinary and lawful motive," (5) articulated confidently as settled law by Justice Scalia and widely understood as such, is also largely wrong as a matter of constitutional doctrine.

What goes forgotten is how little support there is elsewhere in constitutional law, beyond Vieth, for Justice Scalia's proposition that the government can engage in purposeful partisan discrimination at all. Earlier case law on redistricting acquiesced to the consideration of political criteria in the redistricting process, but there was at best only implicit suggestion of the constitutional permissibility of overt partisan discrimination by the government. The Court itself agreed that government consideration of redistricting's political consequences was inevitable and constitutional. (6) The government, for example, may consider respect for traditional political boundaries and subdivisions, district compactness and contiguity, and preserving communities of interest, among other things. The government must consider other legal imperatives in redistricting, including the one person, one vote doctrine and the Voting Rights Act, which often have partisan consequences baked into them. However, courts acknowledging the need for and inevitability of the government referring to political considerations rarely, if ever, went so far as to endorse the active discrimination by the state for and against political parties in redistricting--at least until Vieth.

Of course, this refusal makes perfect sense. The notion that the majority party in government can actively discriminate against the interests of the opposition violates a basic sensibility about democratic competition and fairness. By partisanship here, I mean the "tribal partisanship," as Justin Levitt defines it, so endemic to redistricting. (7) Tribal partisanship is primarily about benefitting one's own team of common partisan affiliation, or injuring the one's partisan opponents, apart from other, legitimate considerations. (8) The partisan use of government power in this sense, to disadvantage competing parties in the process of democratic contestation, is the definition of a process failure begging judicial intervention. For exactly this reason, courts have enforced a basic norm of government neutrality when it comes to political partisanship in constitutional law. (9) First Amendment case law about government speech and patronage most clearly announces the principle against government partisanship, but the norm permeates constitutional law under many different rubrics, including equal protection case law addressing other elements of redistricting and election administration. (10) Without unified judicial recognition of the principle as such, the implicit norm draws from a common structural instinct against government political discrimination and partisan animus in its most flagrant forms.

It is ironic that one area of constitutional law where the Court has expressly sanctioned partisanship, at least where it does not go too far, is the regulation of partisan gerrymandering. Constitutional challenges to partisan gerrymanders have confronted two basic premises set up by Vieth and its logic: First, Vieth appeared to decide that partisanship in districting is a constitutional state interest "so long as it does not go too far." (11) And second, Justice Kennedy's controlling opinion in Vieth required an objective standard for demarcating where partisanship in districting has gone too far. (12) The legal and political science scholarship on partisan gerrymandering has largely, but incorrectly, accepted the first as a predicate to the second challenge of an objective standard for excessive partisan effects. An objective standard for excessive partisan effects has been conceptually unmanageable because it necessitates identification of the "fair" entitlement to representation as a normative baseline from which to measure the representational injury in partisan gerrymandering. And so, Vieth has stalled effective judicial oversight of partisan gerrymandering for more than a decade and counting.

The broader constitutional context I describe here identifies Vieth as the puzzling aberration from the general norm against government nonpartisanship. It therefore undercuts the first premise from Vieth that partisanship is a constitutional state interest at all. If partisanship is not a constitutional state interest for state lawmaking, then there is no need for the intractable inquiry into an objective standard for determining when partisan effect goes too far. Partisanship simply does not count, as I will explain, as a legitimate government interest to justify official government decisionmaking--whether the effect is large or small. For this reason, courts should focus not on whether partisan effects of partisan gerrymandering are excessive and go too far, but instead on the centrality of partisan purpose to the specific government decisionmaking in question. (13) Virtually every plausible approach or standard for judging the constitutionality of partisan gerrymandering already incorporates and requires proof of government partisan purpose or intent. (14) Judicial inquiry into partisan purpose or intent is itself nothing new in redistricting. If the government cannot offer a legitimate state purpose beyond partisanship, then the redistricting should be unconstitutional under equal protection, even under rational basis, irrespective of how extreme the gerrymander's partisan effects.

I describe how this focus on legitimate state interests and partisan purpose in gerrymandering is more faithful to the overarching norm against government partisanship across constitutional law and is grounded in Justice Stevens's approach to gerrymandering back in Vieth. Although the law of partisan gerrymandering has been obsessed with measurement of partisan effects since Vieth, this proposed focus on government purpose offers a more coherent approach that would unify and reify the healthy principle against state partisanship.

Never before in the modern era has judicial oversight of partisan gerrymandering been more needed. Courts have actively engaged the law of democracy since the 1960s and Baker v. Carr. (15) This dive into the political thicket, ironically, occurred at a historically aberrational moment of unusual bipartisanship. The major parties enjoyed a rare period of cross-party cooperation and ideological overlap in the glow of post-war prosperity, galvanized by the solidarity necessitated by Cold War imperatives. Political divisions were largely regional and focused less on party than race, pitting the conservative one-party South largely against progressive wings of both parties. As a...