Cosim Sayid (Clemson University – Department of Philosophy & Religion) has posted The Ontological Problem with Equal Protection Liability for Discriminatory Gerrymandering on SSRN. Here is the abstract:
I present an ontological problem for arguments seeking to show that partisan or racial gerrymanders violate the equal protection clause because they are discrimination by the legislature. Since discrimination is an intentional act, it’s implausible to ascribe discriminatory intent to the legislature, absent lexical intent to classify people unlawfully. These arguments are not epistemological; they concern what legislative conditions of a gerrymander are rather than how to figure whether those conditions are present. Even if the legislature cannot be held directly liable for discriminatory gerrymandering, it could arguably be held liable indirectly. I survey several arguments that would, or could, be helpful in this vein and find them wanting, especially because (a) they fail to show how either individual legislators’ disparate intentions agglomerate into a discriminatory legislative intention; or (b), they’re incapable of demonstrating how to distinguish partisan discriminatory intent by the legislature from racial discriminatory intent against the background of no legislative mentality and electoral maps that look the same in either case. These arguments include (inter alia) a corporate analogy due to Raz, Ekins’ legislative Thomism and group agency, vicarious liability, and the Knobe effect. It also becomes clear that because of the kind of entity that a legislature is, these arguments must fail, since they’d impermissibly privilege some legislators over others in a way that was not consented to. I also sketch an argument to comprehend the 15th amendment in gerrymandering contexts, which is not construed as a matter of intentional discrimination; this textually specific injunction may forbid racial gerrymanders even though the equal protection clause does not, which militates in favor of that consilient conclusion, since, for example, constitutional law does not assess a violation of equal protection of the laws as against religious observants because the free exercise clause is textually specific.
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