“[T]here is no liberty if the power of judging be not separated from the legislative and executive powers.”
In the United States, redistricting is defined as the redrawing of congressional and state legislative district boundaries every ten years, following a United States Census. Redistricting is intended to ensure that all voters in a district are fairly and reasonably equally represented by their House and state legislative representatives. Underlying the redistricting process—which is typically conducted within each state—is an inherent objective to safeguard the electoral process fairly and impartially. “[D]rawing lines for congressional districts is one of the most significant acts a State can perform to ensure citizen participation in republican self-governance.”
Regardless of how impartial redistricting is intended to be, it is often conducted by partisan elected officials (namely, state legislative bodies) who have vested interests in both protecting their own incumbency and protecting or expanding their political party’s opportunity to get their chosen candidates elected. Federal and state courts have repeatedly recognized that state legislatures have primacy in the redistricting process and that it is an inherently political process. While these are not unexpected considerations, it also has been recognized that the redistricting process can produce efforts to manipulate political boundaries in favor of certain parties, resulting in “gerrymandered” districts—that reflect desired political outcomes more than a balanced representation of the electorate. Such districts are frequently oddly shaped, and neither conform to obvious geographic, county, or municipal boundaries nor reflect natural communities of interest.
Gerrymandering can be based on any number of theories related to maximizing a party’s opportunities to increase or maintain power, including: managing how persons of a particular minority group are included in (or excluded from) districts; incumbent protection plans that minimize the number of incumbents who are paired in a redrawn district or who must represent a different group of individuals than in the past; or partisan gerrymandering that seeks to consolidate or divide partisan voters. Gerrymandering around groups of voters is said to work most often through the “cracking” and “packing” of voters. By definition, “[c]racking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one[,] [while] [p]acking means concentrating one party’s backers in a few districts that they win by overwhelming margins.”
The United States Supreme Court has made it clear that certain forms of packing and cracking are illegal and, if proven, will result in declaring a district or state redistricting map to be unconstitutional. This is because, under the United States Constitution, fair representation requires that one person’s vote should not carry any more weight than another person’s vote. However, partisan gerrymandering presents one of the more unique and thornier issues facing the judiciary today. Partisan gerrymandering—sometimes known as political gerrymandering—is defined as “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”
On the one hand, state legislatures—and generally the majority party of the legislative bodies—have primacy in redrawing congressional and legislative district boundaries. Moreover, Congress and state legislatures are inherently political bodies. Despite this reality, the Court has held that negative presumptions should not automatically attach to legislative plans. Additionally, it is expected and accepted that political goals will play a role in redistricting conducted by state legislatures.
On the other hand, overly-partisan gerrymandering has been a concern since the early days of the republic, as its effect on representation can lead to profound impacts on a wide variety of significant political issues of the day. Furthermore, technology has increased the accuracy and sophistication of political mapmaking, giving rise to the creation of partisan advantages during the redistricting process. And as technology advances, more extreme partisan gerrymandering becomes feasible. Unsurprisingly, the body of judicial opinions addressing gerrymandering has expanded over time, as this article discusses in more detail. In these contexts, the United States Supreme Court has, in more recent years, felt compelled to identify overly-partisan gerrymandering as a potentially unconstitutional act.
The increasing focus on partisan gerrymandering results in a fundamental tension around the judiciary’s involvement in partisan gerrymandering issues. The United States Supreme Court has stated that redistricting is required under the United States Constitution because it is critical to fair elections in a representative democracy. Consequently, gerrymandered redistricting plans that frustrate this constitutional obligation impliedly create “claims” or “controversies” that courts must address, despite the obvious justiciability questions implicated by these cases.
At what point should such an inherently political process be subject to judicial review for being “too” political? More importantly, to what extent might the judiciary be injuring its own authority as an independent, non-partisan branch of government when it must decide for or against a particular political party in partisan gerrymandering cases—especially in such an increasingly polarized political environment? This article attempts to answer these questions, focusing not only on how these problems arise, but also potential solutions.
First, this article focuses on the judiciary’s unique and specific role as one of three branches of government in the United States; the limitations of the judiciary with respect to addressing political questions under the political question doctrine; and the general criticisms of the judiciary’s involvement in highly-politicized cases. Second, this article discusses the evolution of gerrymandering claims that have come before the United States Supreme Court, starting with early cases where the Court explained its rationale for evaluating gerrymandering claims, and culminating with an examination of more recent partisan gerrymandering decisions. Finally, this article concludes by proposing a standard for assessing undue political manipulation of the redistricting process and identifies steps the judiciary might take to uphold its integrity when deciding such difficult questions.