A Unified Standard for Discriminatory Intent and Effect in Partisan Gerrymandering
Since excessive discriminatory effect in partisan gerrymandering prima facie demonstrates discriminatory intent, a standard for intent could be collapsed into a standard for effect.
Even if the Supreme Court upholds use of the efficiency gap measure in the pending Whitford case, the Court could still leave the door open to continued partisan gerrymandering.
Since Bandemer, gerrymandering claims can only succeed if they show both discriminatory intent and discriminatory effect. Because the efficiency gap only measures discriminatory effect though, it is necessary but not sufficient to curb partisan gerrymandering.
Even if Whitford is affirmed, gerrymandering can continue when challenges fail to separately demonstrate discriminatory intent. In the absence of a broader ruling, you can be sure that map drawers striving for partisan advantage will simply work harder to obscure their intent.
The Court can close this loophole, by also recognizing that excessive discriminatory effect also prima facie demonstrates discriminatory intent. The logic is simple. If you believe:
- Every state has a set of districts that are sufficiently politically symmetric; and
- States can reasonably consider some of those plans when redistricting; and
- States can evaluate the degree of partisan symmetry/asymmetry of different plans;
- Then you must believe that excessive partisan asymmetry in resulting plans also demonstrates intentional discrimination for partisan advantage.
Simply put, while the efficiency gap measures discriminatory effect, it also shows discriminatory intent. The Court can kill two birds with one stone, by unifying the standards for discriminatory intent and discriminatory effect.
This is part of a series of articles on redistricting and partisan gerrymandering. The idea presented here was first proposed in the first in the series, Will the Supreme Court Only Close the Door on Partisan Gerrymandering Halfway?, as one of several arguments.
