Racial Gerrymandering vs. Partisan Gerrymandering

by Gerard Magliocca · July 2, 2017

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.

Joe says:

July 3, 2017 at 1:17 am

Racial gerrymanders affect the individual’s right to vote.

The telltale case there was Gomillion v. Lightfoot. The black voters still were able to vote for someone. But, the law in question denied the voters the right to vote for the specific locality in question. For illicit racial reasons. JUSTICE WHITTAKER alone was wary of resting on abridgement of vote grounds for basically your reason from what I can tell. He rested on illicit segregation alone.

If the district in question rested on partisan gerrymandering, there still could be a “concrete harm” for voters, on either ground. So, as I noted before, it rests on merits — strict scrutiny or some lesser test, which apparently is not breached here. OTOH, there are many cases where division of political benefits based on ideology is deemed to be illicit. So, I think there is a decent argument to be made here. The right to political association, e.g., is a fundamental right subject to strict scrutiny.

Brett Bellmore says:

July 5, 2017 at 6:23 am

As I have pointed out, not only are racial gerrymanders not uniformly ‘invalid’, most are mandated by interpreting the Voting Rights act to require them.

Indeed, I think this is the chief obstacle to getting the Supreme court to do anything about gerrymandering. They can’t move to end gerrymandering so long as gerrymandering is sometimes mandatory. They just can’t find a principled way to resolve that paradox.

I don’t believe they’re going to do anything about gerrymandering until they have the votes to end the practice of mandating it. The hypocrisy is just too glaring otherwise.