An Unfair Partisan Advantage
I want to throw out a tentative idea that I’m developing in the article that I’m writing about constitutional norms. In the draft, I say that constitutional customs or ethics are directed toward three goals: (1) promoting democracy; (2) promoting the rule of law; and (3) ensuring that one party does not gain an unfair advantage over the other. I’ve posted about various examples before, so I won’t repeat those since the draft is nearly done.
What I want to point out is that only the first two of these interests are reflected in judicial opinions. In other words, you see cases that say the result is partly supported by the idea that we should defer to the democratic process (in Congress, in the states, or in localities). You also see opinions that tout the rule of law as an overarching principle (say the cases on Guantanamo). But you don’t see the same for what I’m calling free party competition.
I think that a more conscious approach toward that concern is warranted. Consider the various statutes that states are implementing that change voting practices (photo ID, less early voting, etc.) The way people assess that issue is by asking whether that violates the right to vote in some fashion. The real problem, though, is that these statutes usually are an effort by one party to achieve an advantage over the other by adopting voting practices that are as favorable as possible. To some extent this is fine, but at some point that goes too far. The same can be said for gerrymandering. This doesn’t solve the problem of how you make that assessment (though the conventions described in the paper provide some guidance), but it does shift the analysis to a more logical place.