Gerrymandering and the Constitutional Norm Against Government Partisanship

Michigan Law Review Volume 116 Issue 3 2017 Gerrymandering and the Constitutional Norm Against Government Partisanship Michael S. Kang Emory University School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Election Law Commons, Law and Politics Commons, and the Supreme Court of the United States Commons Recommended Citation Michael S. Kang, Gerrymandering and the Constitutional Norm Against Government Partisanship, 116 MICH. L. REV. 351 (2017). Available at: https://repository.law.umich.edu/mlr/vol116/iss3/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. GERRYMANDERING AND THE CONSTITUTIONAL NORM AGAINST GOVERNMENT PARTISANSHIP Michael S. Kang* This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a vari- ety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking. The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a new approach focused on legitimate state interest and partisan purpose, building on a constitutional norm against government partisanship. The importance of consolidating and reifying this norm, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime. Table of Contents Introduction ..................................................... 352 I. Law of Partisan Gerrymandering and Vieth v. Jubelirer ................................................359 A. Vieth and the Quest for a Manageable Standard ...........359 B. An Alternate View .......................................366 II. The Problem of Government Partisanship in Constitutional Law .......................................376 A. First Amendment Law ...................................376 B. Equal Protection and Second-Order Review of Redistricting ..........................................384 C. Election Administration and Voter Identification Laws ......390 * Thomas Simmons Professor of Law, Emory University School of Law. Many thanks for valuable feedback from Charlotte Alexander, John Barrow, Scott Bauries, Randy Beck, Emmett Bondurant, Josh Douglas, Jacob Eisler, Jeremy Farris, Alex Lee, Justin Levitt, Michael Parsons, Jim Pfander, Rick Pildes, Lori Ringhand, Robert Schapiro, Nick Stephanopoulos, Anne Tucker, and Andrew Keane Woods, among others. Thanks also to Amanda Parris for excellent research assistance. 351 352 Michigan Law Review [Vol. 116:351 III. The Constitutional Norm Against Partisan Gerrymandering ..........................................403 A. A Way Forward Against Partisan Gerrymandering .........403 B. Substantive Payoffs Beyond Gerrymandering: The Challenge of Hyperpolarization .......................411 Conclusion ....................................................... 418 Introduction Gerrymandering for partisan advantage is so well ingrained that Justice O’Connor once remarked that refusal by politicians in charge of redistricting to seek party advantage should be grounds for impeachment.1 The routine, historical entanglement of partisanship with redistricting long discouraged courts from entertaining constitutional claims against partisan gerrymandering. Even after the Supreme Court declared the justiciability of such claims, it has since stumbled to articulate a manageable standard for adjudi- cation. The “central problem,” as Justice Scalia put it in Vieth v. Jubelirer, is how to set a standard that properly measures “when political gerrymandering has gone too far” given that “[t]he Constitution clearly contemplates districting by political entities, and unsurprisingly that turns out to be root- and-branch a matter of politics.”2 The core premise that partisanship “is a traditional criterion [in the law of politics], and a constitutional one”3 leads necessarily to the analytical challenge of sorting out permissible partisanship from “how much is too much.”4 But the premise that partisanship is an “ordinary and lawful motive,”5 articulated confidently as settled law by Jus- tice Scalia and widely understood as such, is also largely wrong as a matter of constitutional doctrine. What goes forgotten is how little support there is elsewhere in constitutional law, beyond Vieth, for Justice Scalia’s proposition that the government can engage in purposeful partisan discrimination at all. Earlier case law on redistricting acquiesced to the consideration of political criteria in the redistricting process, but there was at best only implicit suggestion of the constitutional permissibility of overt partisan discrimination by the government. The Court itself agreed that government consideration of redistricting’s political consequences was inevitable and constitutional.6 The government, for example, may consider respect for traditional political boundaries and sub- divisions, district compactness and contiguity, and preserving communities of interest, among other things. The government must consider other legal imperatives in redistricting, including the one person, one vote doctrine and 1. See The Supreme Court in Conference (1940–1985), at 866 (Del Dickson ed., 2001). 2. 541 U.S. 267, 285, 296 (2004) (plurality opinion) (citation omitted). 3. Cox v. Larios, 542 U.S. 947, 952 (2004) (Scalia, J., dissenting). 4. Vieth, 541 U.S. at 298 (quoting id. at 344 (Souter, J., dissenting)). 5. Id. at 286. 6. See infra Section I.B. December 2017] The Constitutional Norm Against Government Partisanship 353 the Voting Rights Act, which often have partisan consequences baked into them. However, courts acknowledging the need for and inevitability of the government referring to political considerations rarely, if ever, went so far as to endorse the active discrimination by the state for and against political parties in redistricting—at least until Vieth. Of course, this refusal makes perfect sense. The notion that the majority party in government can actively discriminate against the interests of the opposition violates a basic sensibility about democratic competition and fairness. By partisanship here, I mean the “tribal partisanship,” as Justin Levitt defines it, so endemic to redistricting.7 Tribal partisanship is primarily about benefitting one’s own team of common partisan affiliation, or injur- ing the one’s partisan opponents, apart from other, legitimate considerations.8 The partisan use of government power in this sense, to disadvantage competing parties in the process of democratic contestation, is the definition of a process failure begging judicial intervention. For exactly this reason, courts have enforced a basic norm of government neutrality when it comes to political partisanship in constitutional law.9 First Amendment case law about government speech and patronage most clearly announces the principle against government partisanship, but the norm permeates constitutional law under many different rubrics, including equal protection case law ad- dressing other elements of redistricting and election administration.10 With- out unified judicial recognition of the principle as such, the implicit norm draws from a common structural instinct against government political discrimination and partisan animus in its most flagrant forms. It is ironic that one area of constitutional law where the Court has ex- pressly sanctioned partisanship, at least where it does not go too far, is the regulation of partisan gerrymandering. Constitutional challenges to partisan gerrymanders have confronted two basic premises set up by Vieth and its logic: First, Vieth appeared to decide that partisanship in districting is a constitutional state interest “so long as it does not go too far.”11 And second, Justice Kennedy’s controlling opinion in Vieth required an objective standard for demarcating where partisanship in districting has gone too far.12 The legal and political science scholarship on partisan gerrymandering has largely, but incorrectly, accepted the first as a predicate to the second challenge of an objective standard for excessive partisan effects. An objective standard for excessive partisan effects has been conceptually unmanageable because it necessitates identification of the “fair” entitlement to representa- tion as a normative baseline from which to measure the representational

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