LABORATORIES OF DEMOCRACY REFORM: STATE CONSTITUTIONS AND PARTISAN GERRYMANDERING

Samuel S.H. Wang, Richard F. Ober, Ben Williams

Research output: Contribution to journalArticlepeer-review

7 Scopus citations

Abstract

Partisan gerrymandering has proliferated in the last two decades, yet the Supreme Court has declined to rein in the offense by identifying a judicially manageable standard for evaluating claims in federal courts. This Article highlights a second, promising path to remediating partisan gerrymandering: claims in state courts. In the American federal system, state courts are the arbiters of their own constitutions and statutes and are allowed to offer protections that go beyond those afforded by the Federal Constitution. We begin by discussing the U.S. Supreme Court’s opinion in Gill v. Whitford, 138 S. Ct. 1916 (2018), which lays out two distinct theories for evaluating partisan gerrymandering claims, either on a statewide basis, or on a district-by-district basis. The reasoning in these theories emanates from the U.S. Constitution, but state constitutions contain similar principles, including protection of freedom of association and equal protection of the law. Because states are free to confer more voting rights protections than those contained in federal doctrine, these avenues are in no way foreclosed by the recent Rucho v. Common Cause, 139 S. Ct. 2484 (2019), decision. We also highlight unique state constitutional provisions with no analog in federal law, such as guarantees of free and fair elections and prohibitions on the passage of special laws. We conclude by reviewing states where partisan gerrymandering offenses are likely, with special focus on states with potentially receptive courts, most recently North Carolina. The Article is accompanied by two Appendices: one listing state court precedents striking down election laws and redistricting plans under theories of state law, and one listing constitutional protections that could be cited in a partisan gerrymandering complaint. In summary, this Article seeks to provide a coherent theoretical framework for challenging partisan gerrymanders using federalist principles.

Original languageEnglish (US)
Pages (from-to)203-290
Number of pages88
JournalUniversity of Pennsylvania Journal of Constitutional Law
Volume22
Issue number1
StatePublished - Nov 2019

All Science Journal Classification (ASJC) codes

  • Law

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