Racial Gerrymandering vs. Partisan Gerrymandering
Some comments to my prior post about partisan gerrymandering asked why racial gerrymanders are invalid if the right of individuals to vote is not affected. And that being the case, why not say the same about gerrymanders based on political affiliation? (I’ll note, parenthetically, that these are not the issues that concern Justice Kennedy. He is focused on the practical implications of what test could be used to assess partisan gerrymanders.)
Anyway, my answer is that intentional state classifications are a unique evil that are subject to strict scrutiny. Simply being classified by race is a harm except with limited exceptions. Can the same be said for intentional classifications based on political identity (Republicans vs. Democrats)? I would say no. There are constitutional limits to those sorts of classifications, but it seems to me that some concrete harm in addition to the classification must be shown. And that cannot be done here.