[EL] Can "packed" voters have standing under Gill v. Whitford?

[Mark Scarberry]

I'm having some trouble understanding how a "packed" voter can have
standing to complain about a political gerrymander after Gill v. Whitford.
(That's apart from whether the Court is willing to adopt a standard for
deciding whether  a political gerrymander has gone too far. I suppose that
with Justice Kennedy retiring there is little chance that the Court will do
so.)

It makes sense that a voter suffers a concrete, district-specific injury,
when the voter's preferred candidate in the voter's own district loses, due
to cracking. If the voter had been placed in a non-gerrymandered district,
the voter would have had a better chance of electing the legislator of his
or her choice.

But the *practical political harm* to a "packed" voter whose preferred
candidate in the voter's district wins by a large margin (due to packing)
is that the voter's preferred candidates in *other* districts may lose,
resulting in a less-preferred overall makeup of the legislative body. That
harm does not seem to be enough to provide standing under Gill.

The packed voter may say that his or her vote did not carry the weight in
electing a single member of the legislative body that voter's votes carried
in more competitive districts. Is that enough for standing under Gill?

Perhaps there is nearly always cracking in districts that are near packed
districts. So if the voters in the cracked districts have standing, and
succeed in obtaining a remedy under which district lines are redrawn, the
packed voters would usually have to be un-packed, at least to some degree.
Is that the case?

Or perhaps a plaintiff could usually be found whose party is benefited by
the gerrymander, but who is unhappy because the plaintiff has less of a
chance of electing a legislator of choice in the plaintiff's own district,
because the plaintiff's district is packed with lots of voters of a
different party.

I hope these questions make some sense.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20180712/36e3ff1c/attachment.html>