Constance Van Kley (University of Montana Alexander Blewett III School of Law) has posted Legislative Privilege and Partisan Gerrymandering in the States (Kansas Law Review, Vol. 74, pp. 561-609) on SSRN. Here is the abstract:
After Rucho closed the door on federal review of partisan gerrymandering, state courts became the exclusive forum for challenges to partisan gerrymanders. Most state courts to consider the question have found such claims justiciable, generally requiring plaintiffs to prove that the map’s drafters acted with discriminatory partisan intent. This Article identifies an obstacle facing these plaintiffs: at the same time state courts have been recognizing gerrymandering claims, most have also extended legislators an absolute or near-absolute evidentiary privilege under state Speech or Debate Clauses or separation-of-powers principles, shielding the very communications and deliberations that would supply direct evidence of discriminatory intent. Surveying legislative-privilege rulings from redistricting and related litigation across more than a dozen states, the Article shows that this combination — an intent requirement paired with an unyielding privilege — can render state constitutional protections against partisan gerrymandering effectively unenforceable, regardless of how favorably a court rules on justiciability. The Article traces the reasons for this problem in turn: the post-Rucho wave of state gerrymandering litigation and the divergent paths state courts have taken on justiciability; the historical origins of legislative privilege and its modern application to state legislators; and the range of approaches state courts have taken to the scope and waivability of that privilege in redistricting cases, from Virginia and Maryland’s essentially absolute protections to more limited versions applied in New Mexico and Florida. It also catalogues the different textual sources state constitutions use to constrain gerrymandering — dedicated anti-gerrymandering clauses, independent redistricting commissions, neutral districting criteria, and general voting-rights or equal-protection guarantees — and shows how courts’ interpretation of these provisions interacts with, and is often undermined by, their privilege doctrine. The Article concludes with two linked prescriptions for state courts. First, where a state constitution expressly targets legislative purpose or intent in prohibiting partisan gerrymandering, courts should recognize at most a qualified legislative privilege that yields when necessary to vindicate that guarantee, rather than importing the absolute privilege federal courts apply to Congress. Second, where state constitutional text does not clearly demand proof of intent, courts should resist reflexively importing an intent requirement from federal equal protection doctrine and should instead consider effects- or proportionality-based standards — an approach modeled on Alaska’s — that are less vulnerable to being neutralized by assertions of legislative privilege. Together, these recommendations aim to ensure that state constitutional guarantees against partisan gerrymandering are enforceable in practice.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum