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Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …