Contemporary political discussions have given increasing attention on gerrymandering. Most discussions of gerrymandering focus on the practice’s illegitimate use as a weapon to distort popular democracy. This has been the Supreme Court’s focus as well, but all to no avail. The Supreme Court’s gerrymandering jurisprudence illustrates the difficulty in policing the practice, with the Court struggling to formulate a coherent test to determine when gerrymandering is permissible and when it runs afoul.
The increase focus on gerrymandering as a weapon invites a discussion whether the practice may is inherently illegitimate. This Article suggests two conditions, described as “partisan loyalty” and “bundled preferences,” as inhibitors to the adaptability of partisan gerrymandering. This Article is driven by two concerns: the failure of lawyers and scholars to appreciate how reallocation of voters into different districts alone cannot harm party efficacy and the lack of consideration regarding what judicial intervention would entail.
Part I offers a brief recap of contemporary partisan gerrymandering jurisprudence. Part II turns to structural problems facing judicial management of partisan gerrymandering. Part III considers what conditions may inhibit adaption to partisan gerrymandering. Part IV considers a rights-based understanding of party identity in the context of Part II’s observations. Part V briefly concludes.
Partisan Gerrymandering and the Illusion of Unfairness,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol67/iss2/6