Leeway for Judicial Usurpation: Ignoring the Default of the Elections Clause in the Texas Redistricting Cases


The Supreme Court has had a difficult time in deciding how to handle the issue of partisan gerrymandering, a legislative procedure practiced since our nation’s founding. Oscillating in the past half century, they have ruled non-racial gerrymandering as both nonjusticiable and justiciable, but never with an agreement to a standard of unconstitutionality. Lower courts have struggled to apply the Court’s confusing decisions pragmatically and have been forced to nearly always dismiss such cases, but debate continues as to whether courts should be addressing this is at all. Some argue that the Constitution expressly leaves congressional districting to the state legislatures and Congress, with absolutely no role for courts; while others claim judicial review and other legal and political developments allow courts to intervene in the redistricting process.

At issue is the Elections Clause of the Constitution, specifically its language, interpretation, and amending. Either this clause is a manifest declaration that redistricting is principled in federalism and separation of powers, foreclosing judicial activity, or the clause and subsequent constitutional amendments require court action in the redistricting process. The first theory leaves congressional districting to the elected branches of government as a nonjusticiable political question, while the second has several theories for a judicial role, such as First Amendment protections, Equal Protection rights, or Guarantee Clause requirements. It is clear that racial gerrymandering is both an Equal Protection Clause and Fifteenth Amendment violation, but the constitutionality of districting based on political party identification remains in limbo.

When the Supreme Court decided The Texas Redistricting Cases, it only added to the confusion. This was a wasted opportunity to resolve an important question in American politics and law, and the Court should have held that non-racial gerrymandering is a “political question.” While the holding was correct, the plurality opinion with its multiple concurrences and dissents produce no clear guidance for future cases; strictly applying a standard that political gerrymandering cases are nonjusticiable is a better standard.


Law and Politics

Date of this Version

September 2006