Michael Gentithes (University of Akron – School of Law; Chicago-Kent College of Law – Illinois Institute of Technology; New York University School of Law; Loyola University Chicago School of Law) has posted Threading the Needle in Extreme Partisan Gerrymandering Cases on SSRN. Here is the abstract:
Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering. But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic principles or flexible constitutional standards. They provide space for state courts to interpret state laws that limit the worst gerrymandering behaviors of state legislators. And they also imply that the current Justices are motivated to create avenues for gerrymandering reform. Opponents of extreme partisan gerrymandering can thread the needle between Rucho's rule-based rhetoric and Moore's manageability masquerade.