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

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. POL’Y 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.