Gerrymandering and the Constitutional Norm Against Government Partisanship

Michael S. Kang*

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking.

The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a new approach focused on legitimate state interest and partisan purpose, building on a constitutional norm against government partisanship. The importance of consolidating and reifying this norm, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime.

*Thomas Simmons Professor of Law, Emory University School of Law. Many thanks for valuable feedback from Charlotte Alexander, John Barrow, Scott Bauries, Randy Beck, Emmett Bondurant, Josh Douglas, Jacob Eisler, Jeremy Farris, Alex Lee, Justin Levitt, Michael Parsons, Jim Pfander, Rick Pildes, Lori Ringhand, Robert Schapiro, Nick Stephanopoulos, Anne Tucker, and Andrew Keane Woods, among others. Thanks also to Amanda Parris for excellent research assistance.

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