[EL] Ned Foley’s gerrymandering essay — incumbency protection as the problem

[Mark Scarberry]

Rick’s post links to Ned’s proposed approach to the redistricting cases: https://medium.com/@Nedfoley/the-gerrymandering-cases-43629962f35e. Ned writes that extreme incumbency-protective gerrymanders should be held to violate Article I.

It seems to me that Ned’s approach doesn’t measure incumbency protection, at least not directly. It measures party advantage. You need to read the essay, not just Rick’s excerpt, to see that Ned’s approach measures political competitiveness based on party advantage. It doesn’t, at least as I understand it, identify incumbency protection independently but only as it might correlate with partisan advantage.

His method, if I understand it correctly, wouldn’t identify some  gerrymanders that are designed to force out incumbent representatives.

Sometimes a candidate wins an election in a politically inhospitable district  (see Madison v. Monroe in the first congressional election); a partisan gerrymander may be designed to make the district even more inhospitable, so that the incumbent representative (even if he or she has built up a degree of bipartisan support) loses the next election.  Sometimes a partisan gerrymander may be designed to force out one or more incumbents by throwing them into a single district.

Of course, a key feature of many political gerrymanders is to increase the party’s share of the elected representative. The intent is to cause incumbents of the other party to lose their seats.

Mark


From Rick’s post:

Ned Foley on What the Supreme Court Should Do in the Partisan Gerrymandering Cases
Posted on March 13, 2019 10:54 am by Rick Hasen
Ned writes:
The two pending cases to be argued March 26 — Rucho v. Common Cause and Lamone v. Benisek, the first from North Carolina and the second from Maryland — attack congressional gerrymanders on multiple grounds: primarily, the First Amendment; and secondarily, Equal Protection and Article I.

The First Amendment and Equal Protection challenges suffer from what seems to be a conceptual difficulty. But the same problem does not afflict the Article I claim. There are additional reasons, moreover, why the correct understanding of Article I leads to a modest and appropriate role for judicial invalidation of extreme gerrymanders that function as obstacles to the electorate’s ability to remove incumbent representatives whose performance in office the electorate repudiates. The Court, therefore, should embrace Article I as a basis for judicial review of congressional gerrymanders pursuant to the exercise of its interpretative authority under Marbury v. Madison, while simultaneously eschewing the First Amendment and Equal Protection as grounds for this review.

[end of Rick’s description of Ned’s essay]

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law
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