Now that we know Justice Kennedy is not retiring this year, I would like to comment on the case that the Court will hear next Term upcoming on whether partisan gerrymandering can violate the Constitution. It is very likely that four Justices will say that the issue is not justiciable and four will say that the the issue is justiciable and find a constitutional violation. Justice Kennedy’s position in the last go-round on this question was that the issue could be justiciable if some sensible test could be fashioned to assess the merits.
My tentative view is that the Court should hold that the issue is not justiciable. I say this for the following reason: I don’t understand the nature of the harm to an individual voter. Let me give you an example. For years I lived in a “safe” Democratic district in Indianapolis. There was zero chance that a Republican would win there. I voted that way anyway. Why? Partly because I cling to the old-fashioned view that you should “vote the rascals out” periodically and that straight line party voting is foolish. (I aim to offend equally here on CoOp.)
Did I suffer a constitutional harm because my preferred candidates or party could not win? I don’t see how. I have a right to vote. I do not have a right to vote in a competitive general election. Many House members run unopposed in November–sometimes the only action is in the primary due to the nature of the state or district. Are those general elections constitutionally suspect? No.
The problem with gerrymandering is that the legislature will not reflect the will of the voters. Say through deliberate planning a system is established in a state where 70% of the vote for a party gets that party only 30% of the seats (in a two-party system). You could then say that the Legislature is unrepresentative. What is the constitutional injury there? I would say the state lacks a republican form of government under the Guarantee Clause of Article Four. The Court, though, insists that the Guarantee Clause is not justiciable. Thus, I do not see why partisan gerrymandering is justiciable.
Of course, the Court could use this case as a way of reviving the Guarantee Clause. I highly doubt this will happen though. In a sense, the die was cast when Baker v. Carr grounded what became the one-person, one vote standard in the Equal Protection Clause rather than in the Guarantee Clause.