I have posted this draft of an Essay forthcoming in the Howard Law Journal, “Nonjudicial Solutions to Partisan Gerrymandering.” Here is the abstract:
This Essay offers some hesitation over judicial solutions to the partisan gerrymandering, hesitation consistent with Justice Frankfurter’s dissenting opinion in Baker v. Carr. It argues that partisan gerrymandering reform is best suited for the political process and not the judiciary. First, it traces the longstanding roots of the problem and the longstanding trouble the federal judiciary has had engaging in the process, which cautions against judicial intervention. Second, it highlights the weaknesses in the constitutional legal theories that purport to offer readily-available judicially manageable standards to handle partisan gerrymandering claims. Third, it identifies nonjudicial solutions at the state legislative level, solutions that offer more promise than any judicial solution and that offer the flexibility to change through subsequent legislation if these solutions prove worse than the original problem. Fourth, it notes weaknesses in judicial engagement in partisan gerrymandering, from opaque judicial decisionmaking to collusive consent decrees, that independently counsel against judicial involvement.
This Essay is a contribution to the Wiley A. Branton/Howard Law Journal Symposium, “We The People? Internal and External Challenges to the American Electoral Process.”