Wednesday, October 4, 2017
Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford?
A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017.
Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:
The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”
[footnotes omitted]. The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.
In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":
(1) the constitutional requirement of population equality among districts;
(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris it discusses the then-pending case);
(3) the justiciability of partisan gerrymandering; and
(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.
An objective and great resource for anyone working on these issues in constitutional law.