The Looming 2010 Census: A Proposed Judicially Manageable Standard And Other Reform Options For Partisan Gerrymandering

by Laughlin Mcdonald

Reprinted from Vol. 46 of the Harvard Journal on Legislation

Gerrymandering hinders voters from protecting their rights and voicing their interests through their votes, and the coming 2010 census and attendant redistricting underscore the need for a consistently applied standard for claims of partisan gerrymandering. Redistricting plans have withstood legal challenges because courts have been unable to interpret the conflicting Supreme Court rulings on partisan gerrymandering claims. Nothing in the Constitution expressly prohibits gerrymandering, and until Baker v. Carr, the Supreme Court had treated claims of unfair districting as nonjusticiable. This article describes the Court’s decisions in Baker and in Davis v. Bandemer, in which the Supreme Court finally held partisan gerrymandering claims to be justiciable. It analyzes the judiciary’s struggle with the Bandemer standard that required plaintiffs to show that a districting plan had both a discriminatory purpose and a discriminatory effect in order to succeed on a claim of partisan gerrymandering. This article highlights the Court’s fractured opinions in partisan gerrymandering cases challenging legislative redistricting that took place in Pennsylvania, Texas, and Georgia after the 2000 census. Drawing on past Justices’ views on partisan and racial gerrymandering, this article proposes a three-part standard for adjudicating claims of partisan gerrymanders as well as other options for reform.