Bipartisan Partisan Gerrymandering

The transcript of yesterday’s arguments in the partisan gerrymandering case left me confused. First, there was not a good answer as to why the plaintiffs have standing to challenge the statewide map. Perhaps five Justices will just decide that they want to reach the merits, but I’m not sure.

On the merits, the Court is still quite muddled on what the problem is. Justice Breyer, in his typical way, rattled off several factors that could guide courts in their analysis. The first one was that there could be no valid claim if one party was not in charge of redistricting.  But this is wrong. Two parties can collaborate on gerrymandering safe seats for both parties. Granted, this sort of bipartisan partisanship does not create a big discrepancy between vote and representative shares, but it does classify people according to their political views and increase political polarization (marginally).

I guess Justice Breyer thinks that only partisan partisan gerrymandering is a problem if it’s bad enough. Why that should be singled out is a mystery to me when you are talking about courts that generally ought to use neutral principles.

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1 Response

  1. Joe says:

    “I guess Justice Breyer thinks that only partisan partisan gerrymandering is a problem if it’s bad enough. Why that should be singled out is a mystery to me when you are talking about courts that generally ought to use neutral principles.”

    He favors balancing tests and the net result is not likely to satisfy you if you approach things differently. But, the idea that something is only a problem if “it’s bad enough” is not some novel thing. It pops up, e.g., realistically in Establishment Clause cases. “In God We Trust” or the like might technically be a violation of basic principles, but they are seen as de minimis. A principle not just Breyeresque.

    Basically, I think the courts — let’s say a state finds its own court should get involved via a state Guarantee Clause measure even if the federal courts do not — will find some margin of error is appropriate. They won’t get involved in marginal cases. But, is clear-cut cases, they would step in. Anyway, I’m not inclined to take your “guess” as necessarily accurate anyhow. You don’t think this dog will hunt at all & are a tad biased at the dog selecting what animals to bark at if the hunt is legitimate.