The Party's Over: Partisan Gerrymandering and the First Amendment

Author:David Schultz
Position:Professor, Graduate School of Management, and Department of Criminal Justice and Forensic Science, Hamline University; School of Law, University of Minnesota
Pages:1-53
 
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THE PARTY’S OVER: PARTISAN GERRYMANDERING
AND THE FIRST AMENDMENT
DAVID SCHULTZ
The Supreme Court’s League of United Latin American Citizens v.
Perry (“LULAC”)1 decision demonstrated yet again the poverty and
disappointment of approaching the issue of partisan gerrymandering with
an equal protection jurisprudence.
For those who had thought that the opinion would produce a consensus
on the Court defining manageable standards for the adjudication of partisan
gerrymandering, the decision was a failure. Conversely, for others who
believe Felix Frankfurter was correct in Colegrove v. Green2 when he said
that the Court should not venture into the political thicket of
reapportionment,3 the decision was also a failure because the Justices were
unable to secure the fifth vote necessary to overturn Davis v. Bandemer4
and rule partisan gerrymandering a nonjusticiable question. Instead of
resolving the questions hanging from Vieth v. Jubelirer,5 LULAC left the
fate of partisan gerrymandering for another day. LULAC’s precedent is
that partisan gerrymanders are justiciable yet unsolvable.
Yet within the fractured LULAC opinion Justice Stevens suggested (as
he had earlier in Vieth6) another approach to the partisan gerrymander
puzzle: treat it not as an equal protection claim, but as a First Amendment
Professor, Graduate School of Management, and Department of Criminal Justice and
Forensic Science, Hamline University; School of Law, University of Minnesota; Visiting
Professor, Department of Law, American University Armenia. Ph.D/J.D., University of
Minnesota; LLM, University of London; M.A., Rutgers University; M.A., SUNY
Binghamton; M. Astronomy, James Cook University; B.A., SUNY Binghamton.
Acknowledgments go to Steven Gottlieb at Albany Law School for his instructive
comments.
1 126 S. Ct. 2594 (2006).
2 328 U.S. 549 (1946).
3 Id. at 555 (stating that to “sustain this action would cut very deep into the very being
of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in
districting is to secure State legislatures that will apportion properly, or to invoke the ample
powers of Congress. The Constitution has many commands that are not enforceable by
courts because they clearly fall outside the conditions and purposes that circumscribe
judicial action.”).
4 478 U.S. 109 (1986).
5 541 U.S. 267 (2004).
6 Id. at 324–25 (Stevens, J., dissenting).
2 CAPITAL UNIVERSITY LAW REVIEW [36:1
freedom of speech or association issue.7 While as early as Vieth this
approach had been suggested by Justice Kennedy,8 neither there nor in
LULAC has reorientation of partisan gerrymandering from an equal
protection to a First Amendment violation been seriously explored.
Instead, almost universally, the examination of political gerrymandering
from a First Amendment perspective has been dismissed.9 In light of the
failure of LULAC to produce agreed-upon manageable standards under an
equal protection analysis to address political gerrymanders, and given
Justice Stevens again suggesting a First Amendment approach, this Article
reexplores this path of analysis.
This Article will argue that partisan or political gerrymandering is a
violation of the First Amendment’s free speech or association clauses
because the government can never justify its use solely as a compelling
government interest when it comes to reapportionment. To make this
claim, the first part of the Article will examine how the issue of
redistricting was originally grounded in equal protection claims, with
7 LULAC, 126 S. Ct. at 2634 (Stevens, J., concurring).
8 Vieth, 541 U.S. at 314 (Kennedy, J., concurring).
9 See, e.g., Michael Weaver, Note, Uncertainty Maintained: The Split Decision Over
Partisan Gerrymanders in Vieth v. Jubelirer, 36 LOY. U. CHI. L.J. 1273, 1329–35 (2005);
Richard Briffault, Defining the Constitutional Question in Partisan Gerrymandering, 14
CORNELL J.L. & PUB. POLY 397, 407–10 (2005); Mitchell N. Berman, Managing
Gerrymandering, 83 TEX. L. REV. 781, 808 n. 181 (2005); Richard L. Hasen, Looking for
Standards (in All the Wrong Places): Partisan Gerrymandering Claims after Vieth, 3
ELECTION L. J. 626, 635 (2004); Samuel Issacharoff and Pamela S. Karlan, Where to Draw
the Line?: Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541, 577 (2004);
Robert A. Koch, Note, A Wolf in Sheep's Clothing: Gaffney and the Improper Role of
Politics in The Districting Process, 39 U. MICH. J. L. REFORM, 99, 109 (2005); Justin
Driver, Rul es, the New Standards: Partisan Gerrymandering and Judicial Manageability
After Vieth v. Jubelirer, 73 GEO. WASH. L. REV. 1166, 1178 (2005). Compare: JoAnn D.
Kamuf, “Should I Stay or Should I Go?”: The Current State of Partisan Gerrymandering
Adjudication and a Proposal for the Future, 74 FORDHAM L. REV. 163, 204–11 (2005)
(arguing that the First Amendment may in fact provide a viable alternative to the equal
protection analysis); Guy-Uriel Charles, Judging the Law of Politics, 103 MICH. L. REV.
1099, 1131–39 (2005) (reviewing RICHARD H. HASEN, THE SUPREME COURT AND ELECTION
LAW: JUDGING EQUALITY FROM BAKER V. CARR TO BUSH V. GORE (2003)) (arguing that First
Amendment analysis “has been met almost reflexively with swift and utter condemnation
by leading election law scholars”); Guy-Uriel E. Charles, Racial Identity, Electoral
Structures, and the First Amendment Right of Association, 91 CAL.L. REV.1209, 1212–13
(2003) (contending that a First Amendment analysis might be appropriate when it addresses
the political activity of racial minorities).
2007] PARTISAN GERRYMANDERING 3
partisan gerrymandering simply morphing out of this jurisprudence. The
remainder of this section will then examine the Supreme Court’s three
partisan gerrymandering cases, demonstrating the dissensus around its
justiciability and resolution as an equal protection claim. Part two of the
Article will then argue that both growing out of the Court’s jurisprudence
in the Hatch Act and patronage cases, as well as in its viewpoint
discrimination holdings, there is ample precedent to treat partisan
gerrymandering as a First Amendment issue such that the consideration of
party association or political views in the drawing of district lines should
be subject to strict scrutiny and held unconstitutional, perhaps subject to
one notable exception. Overall, the thesis is that the Court’s inability to
find manageable standards thus far is due to its employing a faulty equal
protection analysis to partisan gerrymanders that has failed to appreciate
the First Amendment issues in redistricting. Instead, if a First Amendment
approach is used, this type of redistricting is unconstitutional because it is
inconsistent with the mandate that government should be impartial when it
comes to how it governs, especially when it comes to defining the rules of
representation and the allocation of legislative seats and political power.
I. GERRYMANDERING AND EQUAL PROTECTION
A. Equal Protection and One-Person, One-Vote
From almost the beginning, federal redistricting litigation has centered
on Fourteenth Amendment equal protection challenges.10 While in
Colegrove, litigation was unsuccessfully brought under the
Reapportionment Act of 1929,11 and in Gomillion v. Lightfoot,12 it was the
Fifteenth Amendment,13 subsequent litigation grew out of equal protection
challenges.
For example, in Baker v. Carr,14 the Court was asked to revisit its
Colegrove decision, this time as an equal protection challenge.15 Here, the
State of Tennessee had last apportioned its state legislative seats in 1901
but had not reallocated seats to reflect changes in population since that
10 See Robert B. McKay, Political Thickets and Crazy Quilts: Reapportionment and
Equal Protection, 61 MICH. L. REV. 645, 660–61, 705–06 (1963) (discussing the central role
of the equal protection clause in the then-emerging redistricting litigation).
11 Colegrove v. Green, 328 U.S. 549, 551 (1945).
12 364 U.S. 339 (1960).
13 Id. at 346–47.
14 369 U.S. 186 (1962).
15 Id. at 188, 208.

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