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Excerpted from: Bertrall Ross, Partisan Gerrymandering, the First Amendment, and the Political Outsider, 118 Columbia Law Review 2187 (November 2018) (142 Footnotes) (Full Document)

BertrallRossThe Supreme Court's decision in Gill v. Whitford dealt partisan gerrymandering opponents a significant setback. In an opinion written by Chief Justice Roberts, the majority found that the plaintiffs failed to show they had standing to challenge the Wisconsin legislature's districting for state legislative elections. The problem for the Court was the statewide nature of the injury claimed by the plaintiffs. For the Democratic plaintiffs in Gill, the constitutional harm arose from the Republican legislature's decision to draw a statewide map that deliberately diluted Democratic voters' electoral influence statewide. The Republican legislature pulled this trick off in the same way that political parties have since the beginning of the Republic. It did so by “packing” Democrats in cities into as few districts as possible and spreading other Democrats in the state into the remaining districts through a process called “cracking.” This cracking and packing of Democratic voters virtually eliminated the opportunity for the Democratic party to ever win a majority of seats in the state legislature under the map.

For the Court, these statewide harms amounted to a “generalized grievance” insufficient to support legal standing for the individual Democratic voters bringing constitutional claims under the First and Fourteenth Amendments. Since individuals do not have a right to elect their preferred representatives in a district and no individual district alone produces unfair partisan representation, the plaintiffs failed to show that they suffered a concrete harm from the legislature's drawing of the particular district in which they lived. Unable to surmount this standing requirement, the plaintiffs' primary claim against partisan gerrymanders--that they distort partisan representation in the state legislature --went unaddressed.

While the Gill majority appeared to leave a remnant of hope for partisan gerrymandering opponents through its decision to remand the case to the lower courts to assess whether any of the plaintiffs have standing, the leading theory of the partisan gerrymandering harm appears to be dead in the Supreme Court. A new theory of the constitutional harm is therefore needed if gerrymandering challenges are ever to prevail.

In a concurring opinion joined by three other Justices, Justice Kagan offered an alternative theory of the constitutional harm. Rather than view the harm through the lens of the Fourteenth Amendment and its emphasis on asymmetry in representation produced by the dilution of the vote, Justice Kagan suggested that lower courts focus their attention on the First Amendment associational harms from partisan gerrymandering. theory of the harm was not new. Justice Kennedy referred to the freedom of association as a potential constitutional basis for adjudicating partisan gerrymandering claims fifteen years ago in Vieth v. Jubelirer, one of the last major gerrymandering cases to reach the Court. Justice Kagan, citing Justice Kennedy's reasoning in Vieth, tried to revive this theory as a basis for adjudicating partisan gerrymandering claims in the future.

However, Justice Kagan construed the associational harm in statewide terms. According to Justice Kagan, “the associational injury flowing from a statewide partisan gerrymander ... has nothing to do with the packing or cracking of any single district's lines.” Instead, a gerrymander “burden[s] the ability of like-minded people across the State to affiliate in a political party and carry out the organization's activities and objects.” Since “the valued association and the injury to it are statewide, so too is the relevant standing requirement.” In the case of Wisconsin, the disfavored Democratic Party and its members suffered an associational harm from being deprived of their “natural political strength by a partisan gerrymander.” This “natural strength” referred to the number of seats the Democratic Party would be expected to win statewide in the absence of the gerrymander. To remedy this deprivation, the state would presumably need to redraw the statewide map to secure fairer representation for the Democratic Party in the state legislature.

In providing a constitutional roadmap for future challengers of partisan gerrymandering, Justice Kagan appeared to miss the central element in the majority's standing ruling: that they disapproved of statewide harm as a basis for litigants' standing. A theory of the First Amendment harm from partisan gerrymandering that is specifically applicable to individual districts must be developed, or such claims apparently will not overcome the standing obstacle.

In this Essay, I argue for a particular way of conceptualizing the First Amendment harm from gerrymandering that arises in individual districts. This conceptualization requires gerrymandering opponents to abandon their nearly exclusive focus on the constitutional rights of political insiders--those who are affiliated with or otherwise consistently vote for candidates of one of the two major parties. Instead, they would need to shift their attention to political outsiders--nonvoters or those who generally do not affiliate with or vote for candidates of either of the two parties. Doing so reveals how gerrymandering infringes upon individuals' associational freedoms by inflicting cognizable harms at the district level.

To date, a consistent thread across partisan gerrymandering suits is the political-insider status of the litigants. One set of political insiders, members of the political party out of power, is seeking constitutional protection against another set of political insiders, members of the political party that controls the state political institutions responsible for drawing district lines. This context of First Amendment contestation stands in marked contrast to the original controversies raising freedom of association claims before the Supreme Court in the 1950s and 1960s. In these early cases, members of the Communist Party and the National Association for the Advancement of Colored People (NAACP) sought judicial protection against state actions designed to disrupt the associations' political activities and ultimately dismantle the associations. The Supreme Court initially proved reluctant to provide constitutional protection to Communist Party members subject to legal and political persecution during the Second Red Scare of the McCarthy era. But the Court did eventually rely on the First Amendment's freedom of association to protect NAACP members against Southern state efforts to expose Association members to intimidation and disturb the Association's expressive activities targeting Jim Crow segregation. In justifying its protection of freedom of association and associational expression, the Court explained that “[o]ur form of government is built on the premise that every citizen shall have the right to engage in political expression and association.”

In these early cases, the Court connected the freedom of association to the expressive needs of political outsiders in the two-party political space: “All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups ....”

Yet in recent decades, advocates and courts have neglected the First Amendment freedom of association's origin as a tool for protecting political outsiders. Litigants challenging partisan gerrymandering focus exclusively on the rights of political insiders. Those who support gerrymandering claims generally argue that the states are discriminating against the viewpoint of members of the party out of power through the partisan gerrymandering of districts. The primary target of this claim that I label the fair representation claim of associational freedom is the legislature's use of districting to maximize partisan advantage in legislative seats held, which is said to deprive members of the party out of power of their representational rights in state legislatures and congressional delegations. The goal is thus to protect the representational rights of political insiders by targeting a statewide harm from partisan gerrymandering.

In addition to the fact that a majority of the Court appeared to close off such claims in Gill, even the plaintiffs' success would have done little to promote the democratic inclusion of political outsiders. Rational choice theory, which is broadly accepted among political scientists, suggests that representatives are primarily motivated by the desire to be reelected. If the Court had struck down the Wisconsin statewide map on the basis of a fair representation claim, representatives' desire to be reelected would likely have led the party in power to continue to draw as many safe districts as feasible within the constitutional limitation of giving the party out of power something close to a fair opportunity to elect a majority of representatives.

In this alternative universe in which such partisan gerrymandering claims succeed, incumbents would rarely have to compete with other viable candidates in elections and would not need to engage in the resource-expenditure and mobilization efforts required to attract new or unaffiliated voters to win elections. Political outsiders, the original focal point for protection under the First Amendment freedom of association, would therefore be equally or increasingly marginalized from the political process.

Partisan gerrymandering opponents have overlooked an alternative First Amendment freedom of association claim centering on individuals' inability to participate effectively in gerrymandered districts. Unlike current challenges to gerrymandering, the theory I propose emphasizes the harm from states' packing and cracking of opposing party members in individual districts and provides constitutional redress for political outsiders as well as political insiders.

In the first case to reach the Supreme Court challenging a districting practice for the partisan advantage it produced, the American Civil Liberties Union (ACLU) and the Indiana Civil Liberties Union (ICLU) advanced a variant of this associational-freedom claim, which I label the electoral competition claim. In their amicus brief to the court in Davis v. Bandemer, the ACLU and ICLU targeted partisan districting as a device that reduced competitiveness between parties in the electoral marketplace of ideas. Safe districts produced through packing and cracking opposing party members, the brief explained, entrenched representatives in power and undercut the competitiveness necessary for opposing party members to express themselves through an effective ballot--that is, one providing them with a realistic opportunity to elect their preferred candidate.

The ACLU and ICLU's proposed freedom of association claim--and the one I elaborate on here--targets the legislature's intentional drawing of individual noncompetitive districts. The state's construction of safe districts imposes a constitutional injury to both party insiders from the opposing party and party outsiders by rendering ineffective any political-associational activity that they might engage in within the individual district. A judicial embrace of this alternative electoral competition model of associational freedom would likely force states to respond in a way that promotes political insiders' and outsiders' opportunity for association within districts and their broader inclusion in the political process. The party in power would likely continue to seek to maximize partisan advantage in statewide maps but would be able to do so only by drawing districts that meet whatever competitiveness constraint the Court constructs. This greater district competitiveness would not only enhance the opportunity for political insiders of the opposing party to cast an effective ballot in electoral contests with two viable candidates. It would also increase the likelihood that candidates would devote resources to mobilizing and associating with unaffiliated and nonvoters whose support is more likely to prove pivotal to winning elections.

A viable path forward for partisan gerrymandering opponents after Gill should therefore focus on returning to the roots of First Amendment associational freedom as a tool for protecting political outsiders. Challenging the harms that result from noncompetitive districts offers the potential to do so.

The rest of this Essay proceeds as follows. In the first Part, I describe the origins and evolution of the First Amendment freedom of association claim.

In the second Part, I disaggregate two associational-freedom claims for challenging partisan gerrymanders.

In the third Part, I employ theory and empirical evidence to demonstrate the likely effects of the two associational-freedom claims on political outsiders in partisan gerrymandering controversies. On the basis of these differing effects, I argue that courts should embrace the electoral competition associational-freedom claim as the constitutional path forward after Gill.

Finally, in the fourth Part, I argue that challenges to partisan gerrymandering premised on the electoral competition associational-freedom claim would not only advance political inclusion and equality. They would also overcome the standing obstacles to constitutional challenges of partisan gerrymandering that the Court constructed in Gill.

[. . .]

We do not yet know exactly how powerful competitive electoral districts will be in drawing political outsiders into the political process. Until courts decide to step in and adopt a constitutional mandate that forces states to draw such districts, the impact is impossible to precisely predict. But the available evidence suggests that judicial enforcement of the electoral competition model of associational freedom would not only protect political insiders' right to effective participation in the electoral process but also help incorporate political outsiders in democratic politics. That distinguishes this model from the fair representation model of associational freedom, in which the constitutional benefit, in the form of a guarantee of representation in the legislative process, accrues only to political insiders.

At the core of the First Amendment freedom of association is the goal of creating a more inclusive democracy through the protection of political outsiders and their voices. The less-educated, poor nonvoters of the present do not have the benefit of a formal association seeking to advance their political goals outside of the political process, as the NAACP once did for African Americans. But judicial enforcement of the freedom of association in the partisan gerrymandering context can nonetheless force political insiders to respond to and promote the political goals of political outsiders.

Chancellor's Professor of Law, University of California, Berkeley School of Law.