In Rucho v. Common Cause, the U.S. Supreme Court purported to end over three decades of partisan gerrymander review by the federal courts. I believe the Court’ s decision is problematic. Partisan gerrymandering distorts democratic governance through effects that have been increasingly documented, and it seems likely that those effects will compound and continue largely unabated absent the availability of federal judicial review. But my intent is not to argue against Rucho, rather to work within its parameters and overcome it. That means understanding the nature of the problem that the Court wrestled with, recognizing the Court’s structural concerns, and then tracing the limits of its reasoning. All of which, I believe, points to the procedural guarantee of the Due Process Clause as a plausible constitutional basis for reinvigorated federal judicial review of partisan gerrymandering challenges. By targeting identifiable groups for vote dilution, partisan gerrymandering functions more like adjudicatory acts rather than traditional legislative acts, and therefore may require additional procedural safeguards in connection with their adoption than the lawmaking process itself provides. Moreover, review of redistricting procedures and the formulation of corresponding safeguards, in contrast to substantive review of redistricting maps as has been done in the past, draws on the special competence of judges. Finally, procedural review does not shift the locus of redistricting authority but instead de-weaponizes it; it does not attempt to wrest control but only to formalize it. A judicial focus on redistricting procedures can thus limit and discipline review so as to prevent judicial overreach, a concern which has long troubled the Court, while at the same time checking the worst partisan redistricting abuses.
Partisan Gerrymander Review After Rucho: Proof is in the Procedure,
105 Marq. L. Rev. 787
Available at: https://scholarship.law.marquette.edu/mulr/vol105/iss4/3