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Abstract

No topic endured more uncertainty over the past fifty years than the legality of politicized districting. In 1986’s Davis v. Bandemer, the Supreme Court first indicated that sufficiently egregious partisan gerrymanders might be unconstitutional, while offering a test so vague that federal courts virtually never found districtings to be illegal. In 2004’s Vieth v. Jubelirer, a plurality of the bench announced the Supreme Court lacked appropriate constitutional tools to identify such partisan gerrymanders—but Justice Kennedy’s concurrence suggested that while no test had yet been found, one might be found in the future. It was not until 2019’s Rucho v. Common Cause that a conservative majority finally laid the struggle over partisan gerrymandering to rest by concluding that politicized districting was a political problem beyond the competence of the federal judiciary.

The functionally fruitless partisan gerrymandering debate was full of sound and fury, but it did signify something: the multifaceted nature of party organization and subsequent complexities in judicial oversight of partisan democracy. While the Rucho Court ultimately used the political question doctrine to justify judicial abstention, this is only a formalist wrapper. Underlying it is the nature of parties as emerging from the interplay of popular will and elite maneuvering. The partisanship that politicized districtings exploit is as much an expression of democratic preference as a prospective tool of technocratic oppression. This Article draws forth this tension by looking to an underappreciated contribution to the understanding of parties in democracy: the three ardent dissents in Vieth, each of which articulated a different view of when partisanship should be illegal. Together they illustrate the difficulty of neutral judges decisively imposing a view of the legitimate role of parties.

This Article uses the Vieth dissents to demonstrate the intrinsic complexity of party governance and the subsequent challenges for robust judicial intervention. It first reconstructs the role of parties in governance and law (Part I) and then reviews the reception of parties in legal scholarship (Part II). These understandings have been marked by significant variation in the desirability of parties as participants in democratic governance. Part III offers a detailed doctrinal construction of the Supreme Court’s 40-year foray into the partisan gerrymandering challenge. Part IV observes how the Vieth dissents themselves reveal the foundational difficulty with innovative judicial intervention: partisan gerrymandering is one of the (less savory) practices by which party composition is dynamically constructed. Part V observes other available mechanisms for judicial intervention in party politics that enhance rank-and-file participation, rather than constrain party practice.

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