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Publication Date

2018

Abstract

The Supreme Court recognizes that "[p]artisan
gerrymanders... [are incompatible] with democratic
principles."I This makes good sense. The fundamental
objective of redistrictingis to "establish 'fairand effective
representation for all citizens. '2 And partisan
gerrymandering-whichthe Supreme Court defines as
"drawing... district lines to subordinate adherents of
one political party and entrench a rival party in
power'--runs counter to that fundamental objective.
Nonetheless, the Supreme Court has yet to invalidate
a redistricting plan solely as an unconstitutional
partisan gerrymander. This Symposium issue of the
Georgia Law Review, however, comes at a crucial
moment in the Court's treatment of that question. A case
now before the Supreme Court presents the Court with
the opportunity to set limits on this anti-democratic
practice and to clarify the constitutional bases for those
limits. While a number of legal arguments for reining
in partisangerrymanderingare now before the Supreme
Court, this Article focuses on just one of those claims.
In the authors' view, the First Amendment provides
clear legal standards under which courts may properly
invalidate district lines-and, accordingly, districting
plans-that have been drawn to subordinate the
adherents of one politicalparty in favor of the views and
electoralpreferences of the party in power. This Article

argues that these standardsare legal rules the Court has
applied in a variety of contexts and that the application
of such rules does not require the Court to derive any
additional metric or metrics by which to adjudicate
these claims.
The factual record in two cases recently before the
Supreme Court may have supported the application of
these standards to invalidate the challenged districts
and districting plans at issue-the Wisconsin state
legislative map and Maryland's Sixth Congressional
District. For a number of reasons beyond the scope of
this Article, the Court remanded both of those cases
absent any holding as to the merits of a First
Amendment claim.
The constitutionality of North Carolina's 2016
Congressional Plan, however, now finds itself-
following remand and reconsideration by the district
court-squarely before the Supreme Court on appeal.
Because that challenge now looks to present the next
opportunity for the Court to consider these issues, and
because of their involvement in the North Carolina
litigation, the authors focus principal attention on
application of the underlying law to that congressional
redistrictingplan and its individual districts

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