INTENT IS ENOUGH: INVIDIOUS PARTISANSHIP IN REDISTRICTING.

• Author: Levitt, Justin
• Position: Special Issue on Gerrymandering

TABLE OF CONTENTS INTRODUCTION 1995 I. A SHORT HISTORY OF PARTISAN GERRYMANDERING 1996 DOCTRINE II. THE CONCERNS BEHIND THE DOCTRINE 2002 A. The Search for a Workable Measure of Unconstitutional 2003 Effect B. An Alternative Focus on Intent 2009 1. The Invidious Intent that Matters 2013 2. The Nature of Effect in an Invidious Intent Claim 2018 C. Intent and the Concerns Behind the Doctrine 2023 1. Invidious Partisan Intent Is Not Just "Politics" 2024 2. The Capacity of Courts 2034 3. The Gatekeeping Function of the Burden of Proof 2037 III. WHAT'S THE POINT? 2046 INTRODUCTION

Academics, litigators, and politicians are notoriously averse to harmonious consensus. So we ought to take just a moment to celebrate a truly wondrous achievement. Against all odds, the Supreme Court has managed to unite a multitude of warring factions around one shared truth: partisan gerrymandering doctrine is, at present, a hot mess.

It is difficult to evaluate or critique the present doctrine of the Court with respect to partisan gerrymandering because the Court has offered little doctrine to evaluate. Various Justices have issued various opinions that have failed to command a majority or illuminate a durable path forward. Claims of partisan gerrymandering are, at least at the moment, justiciable. But, as political scientist Gary King memorably put it, none have thus far been sufficiently "justished" for the Court to deliver a meaningful and stable doctrinal standard. (1)

The status quo is chaos, yes. (2) But it is also opportunity. In the October 2017 Term, the Court is considering a Wisconsin case, on direct appeal of a finding that a challenged redistricting plan was unconstitutionally drawn. (3) The Court will have to decide something. Practitioners, scholars, and courts have put forth arguments and theories now pitched on unusually fluid terrain. Given the shards of past precedent, there are many plausible paths forward.

This Article surveys the landscape with a modest step back. Other scholars have attempted to craft standards addressing what the Court has requested--or more precisely, what Justice Anthony Kennedy has requested. (4) Instead, this Article addresses what the Court seems to want. In a quest to investigate manageable limits on an inherently political process, the Court has been bedeviled by the wrong question. Rather than asking "how much" partisan gerrymandering is "too much," the Court should be asking what kind of partisanship is improper in the redistricting context. (5) This inquiry would bring the Court back to familiar ground, harmonizing the jurisprudence of partisan gerrymandering with the Court's approach to constitutional harm in other arenas. Moreover, the evidentiary tools in this arena are equally familiar, comfortably within the judicial role, and, when used properly, would confine judicial invalidation of a map to only exceptional cases. In partisan gerrymandering cases, focusing on the proper question would likely produce an impact on the redistricting process that is theoretically significant but pragmatically modest: an exercise in boundary policing well within the Court's usual modus operandi.

Part I of this Article proceeds with a short history of partisan gerrymandering doctrine, capturing the Court's struggle to settle on a workable standard and its arrival at the present doctrinal moment. Part II teases out the jurisprudential concerns behind that struggle, and the Court's vain attempts to stumble toward a measure of impermissible partisan effect as the means to satisfy the most pertinent concerns. It then proposes, as an alternative, a standard of impermissible partisan intent and explains how that intent standard amply satisfies the concerns that have been motivating the Court thus far. In particular, the pragmatic deployment of an intent standard will likely be successful only in rare cases. Given the inherent limits of the doctrine, Part III explains why the effort is nevertheless worthwhile.

1. A SHORT HISTORY OF PARTISAN GERRYMANDERING DOCTRINE

   This Part briefly summarizes how the Court has arrived at the present doctrinal moment with respect to partisan gerrymandering. Because this history has been recounted in detail by others, it receives comparatively cursory treatment here.

   Conventional wisdom suggests that the Supreme Court first entered the "political thicket" of redistricting and gerrymandering in 1962. (6) Previously, state and local determinations on the location of the bounds of political districts had largely been considered questions of a "peculiarly political nature," beyond the proper ken of the federal judiciary. (7) Then, in 1962, the Court decided Baker v. Carr, (8) the case Chief Justice Earl Warren famously branded "the most important" of his tenure on the Court. (9) Baker held that at least some state redistricting decisions presented justiciable questions under the Fourteenth Amendment, (10) launching a series of federal constitutional regulations of the redistricting process later deemed the "reapportionment revolution." (11)

   The initial cases of this "reapportionment revolution" confronted a particular form of political gerrymandering: the systematic refusal to adjust district lines as urban populations grew far faster than their rural counterparts. The disparate population growth meant that increasingly large urban populations were packed into remarkably few districts, diluting the representation of urban voters in state legislatures and Congress. (12) The Court's solution was a doctrine of equal representation, requiring each local, state, and federal political district to contain approximately the same population as others within the jurisdiction. (13)

   Still, the requirement that districts be equally populated constrains only the number of people to put in each district, and not the choices about which people to put where. Partisan actors were engaged in the drawing of district lines. And as they drew districts, the Court found itself confronted with further claims that the Constitution sets limits on the degree to which partisanship may permissibly shape the district map. These cases have yielded relatively little clarity.

   In 1973's Gaffney v. Cummings, the Court rejected a gerrymandering challenge. (14) The plan in question sought to "achieve a rough approximation of the statewide political strengths of... the only two parties in the State large enough to elect legislators from discernible geographic areas." (15) That is, the plan sought roughly proportional representation of Democrats and Republicans. The Court acknowledged that the Equal Protection Clause might prevent invidious redistricting discrimination, employed to "minimize or cancel out the voting strength of racial or political elements of the voting population." (16) But it also explained that whatever the bounds of such a doctrine (which were not further clarified), a bipartisan plan designed for proportional representation posed no cognizable violation of equal protection. (17)

   In Davis v. Bandemer, thirteen years later, the Court confronted Democratic allegations that Republicans drew Indiana state legislative districts in an impermissible Republican partisan gerrymander. (18) A majority agreed that the issue was justiciable, (19) and a majority agreed that the plaintiffs should not prevail, and there the agreement ended. A plurality of four affirmed the trial court's determination that districts were drawn with discriminatory partisan intent, but found an insufficiently adverse effect to make out a violation of the Equal Protection Clause. (20) These Justices would have required proof not merely of resulting disadvantage at the polls, but of "continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process." (21)

   That standard is exceedingly high, and it all but precluded successful partisan gerrymandering claims. For eighteen years after Bandemer, no lower court granted relief on a claim that district lines were drawn with unconstitutional partisanship, and few professed to understand what plaintiffs would need to show in order to prove such a claim. (22)

   In Vieth v. Jubelirer, the Court returned to the issue, assessing another equal protection claim against partisan gerrymandering. (23) In one small sense, there was unanimity: all nine Justices agreed that "an excessive injection of politics" in the redistricting process violates the Constitution. (24) But the Court could not agree on how to determine "excessive," nor who should make that decision. Four Justices believed that the courts should adjudicate partisan gerrymandering claims, (25) but in three different opinions offered three distinct standards for establishing a violation. (26) Four rejected each of the proffered tests, found no workable alternative, and would have reversed Bandemer, declaring partisan gerrymandering cases to be nonjusticiable based on the absence of a judicially manageable standard. (27) Justice Kennedy, writing only for himself, refused to turn back but provided little discernible way forward. He agreed that partisan gerrymandering cases should be justiciable, but rejected all of the alternative tests offered and presented no standard of his own. (28) Instead, he offered bits and pieces of potentially promising footholds--a pinch of empiricism, (29) a dash of the First Amendment' (30)--imploring future litigants to shape the elements into a more coherent recipe. (31)

   Courts and litigants since have valiantly struggled to meet this request. After a dozen years of wandering in the wilderness, a partisan gerrymandering decision out of Wisconsin cobbled together the scraps of binding precedent with some of the expressed concerns of individual Justices. (32) By statute, the decision of this three-judge court is heard by the Supreme Court on direct appeal, rather than through certiorari, (33) which means that...