Partisan Gerrymandering after Perry: A Seeming Victory for the Status Quo, But Perhaps a Glimmer of Hope

The Supreme Court continues to remain in an uneasy equilibrium in dealing with partisan gerrymandering. Currently, one set of justices believes, for various reasons, that courts are not the appropriate venue for addressing the subject and would declare it to be non-justiciable. Other justices argue for justiciability, although they are by no means unified on a specific formula for action. Justice Kennedy, the swing justice on this issue, favors justiciability, but seemingly only in circumstances highly unlikely to ever occur. It is the view of many court observers - a view that we share - that unless a clear and workable measure for partisan gerrymandering is found, non-justiciability will inevitably prevail. In this paper, we extensively review how the Supreme Court has dealt with partisan gerrymandering over the years. Special attention is given to the most recent Supreme Court case to address the issue, LULAC v. Perry, 548 U.S. 399 (2006), which considered a challenge to the Texas Congressional re-redistricting in 2003. The article carefully and favorably examines the currently most widely accepted approach for measuring partisan gerrymandering, symmetry. It concludes by suggesting an approach for applying symmetry to partisan gerrymandering that is most likely to be acceptable to the Supreme Court.