"Partisan Gerrymandering after LULAC vs. Perry: A Proposed New Approach"

AbstractPartisan gerrymandering continues to be a controversial practice that undermines democratic participation among the electoral systems of the several American states. Although the United States Supreme Court has ruled that constitutional "equal protection" guarantees apply to electoral districts, it also has been reluctant to apply those standards except in overt cases, particularly involving race or other "suspect categories"-as the 2006 case, originating in Texas, of League of Latin American Citizens [LULAC] v. Perry demonstrates. Recently, however, members of the Supreme Court have expressed a desire for a potential test that could be applied to these controversies in order to adduce whether or not certain redistricting plans implemented by states violate federal constitutional standards of "equal protection" for all voters. A promising approach that already has been proffered to the Supreme Court, called the "symmetry" test, could support efforts in federal or, even, state courts to redress this fundamental problem. That test provides a way in which social science can be used to develop non-partisan instruments for future districting decisions, provided that the courts can be persuaded to concur.IntroductionPartisan gerrymandering is an ongoing controversy of the American political system. The difficulty in addressing it is compounded by other features of that system, including federalism, constitutional constraints, and, especially, the reluctance of its judicial system to rule upon alleged charges of partisan districting in a meaningful way. The 2003 mid-cycle redistricting controversy in Texas was, arguably, a particularly egregious example (though, certainly, not the only one) of this controversial practice and of the relative reluctance of courts to become involved.The landmark 1962 United States Supreme Court case of Baker v. Carr (1962) broke new ground by ruling that federal courts could address overt population malapportionment. The redefinition of the "political question" doctrine provided a means for the judicial branch to promote the democratic cause of electoral fairness. After initial controversy, it is generally agreed to have been one of the Warren Court's most notable rulings. Unfortunately, it did nothing to address the conditions within the wider American political system that prompts the practice of partisan gerrymandering.More recent Supreme Court cases have offered opportunities for a more coherent principle to guide this crucial area of the American democratic process. Unfortunately, the courts continue to demonstrate-in cases that include Bandemer v. Davis (1986), Veith v. Jubelirer (2004), and, most recently, League of Latin American Citizens [LULAC] v. Perry (2006)-reluctance to provide that guidance and constitutional stewardship. In addition to refusing to intervene in highly controversial examples of alleged partisan gerrymandering, federal courts continue to show a general deference to the authority of partisan state governments over determining the boundaries of federal electoral districts-a situation that is, by itself, highly unusual among modern industrial democracies, including federal ones.Nonetheless, despite the disappointing result of these cases for advocates of non-partisan (or, at least, less overtly partisan) electoral administration, in LULAC vs. Perry, members of the Supreme Court (in particular, Justice Anthony Kennedy) have expressed a desire for a potential test that could be applied to these controversies in order to adduce whether or not certain redistricting plans implemented by states violate federal constitutional standards of "equal protection" for all voters (Hall 2003, 485-518). One such test, proposed by Gary King and Bernard Grofman, presents itself as just such a possibility.This essay will examine the King-Grofman approach and suggest a new and, hopefully, more effective political strategy that its proponents should use in attempting to persuade the courts that it should be adopted. …