Article

Parsing partisanship and punishment: An approach to partisan gerrymandering and race

Author / Creator
Nelson, Janai
Part of
New York University law review (1950), 2021, Vol.96 (4), p.1088-1126
Summary
  • The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither 'Rucho's' majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court's failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering's particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court's racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment-if they are willing.

Date
2021-10-01
Publication
New York University law review (1950)
Volume
96
Issue
4
Pages
1088-1126
Language
English
Publisher
New York University Law Review
ISSN
0028-7881
EISSN
2766-0834

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Subjects

  • Analysis
  • Apportionment
  • Civil rights
  • Democracy
  • Demographic aspects
  • Elections
  • Gerrymander
  • Gerrymandering
  • Judicial review
  • Laws, regulations and rules
  • Litigation
  • Multiculturalism
  • Partisanship
  • Polarization (Social sciences)
  • Political aspects
  • Political parties
  • Punishment
  • Race discrimination
  • Racial discrimination
  • Remedies
  • Suffrage
  • Supreme Court decisions