<x-flowed>Rick Pildes writes:

I read Larios as holding that systematic partisan gerrymandering is an impermissible purpose under the Equal Protection clause, pure and simple.  Whenever the state has to provide an explanation for its districting plans, it cannot offer pursuit of partisan advantage as the only reason.  Note that Larios is not a strict scrutiny context; the plan has less than a 10% population deviation and the state's burden is only to offer some legitimate reason for the deviation (thus, deviations designed to comply with the VRA are surely acceptable ones at the state and local level).  But even under a legitimate purpose or rational-basis like test, partisan advantage is not an acceptable explanation.  That's certainly what the three-judge court said, more or less directly, and while summary affirmances do not technically affirm the reasoning below, in this context it's hard to see how the summary affirmance could not entail agreement with that principle.  The difference between Larios  and Vieth is that in the former, there are obvious managable remedial standards for the Court to employ in response to the constitutional violation.  On Justice Scalia's view, the Court should not even set the case for argument, it should summarily reverse; he thinks pure pursuit of partisan advantage is not an impermissible purpose.  But he's so much on the defensive here, he can only go so far as to urge full consideration on the merits.

What does this suggest about Vieth?  Most obviously, if partisan gerrymandering is not a legitimate purpose or rational basis here, it is also not one in the normal context in which plaintiffs bring affirmative challenges to districting plans. To the extent Vieth left this unclear, it now seems that most of the Court takes systematic partisan gerrymandering to be not just illegitimate and unconstitutional, but a serious constitutional problem; the difficulty in the Vieth context really is one of managable remedies, not a debate about whether partisan gerrymandering is unconstitutional.  That suggests in any context in which a managable remedy for a partisan gerrymandering can be constructed, the Court is likely to require such a remedy -- for example, systematic and selective pairing of incumbents, which can be undone in a managable way (Larios deals only with the partisan gerrymander, not the bipartisan one).  For another thing, the dissenters reflect the view that this remains a very live issue within the Court and that they are not resigned to having lost on the issue.  In addition, it suggests to me that Justice Kennedy's opinion in Vieth, rather than being a half-hearted gesture at not closing the door altogether, is genuinely a temporizing opinion, a vote based on uncertainty, in a case without great facts.



Rick Pildes
An-Bryce Professor of Law, New York University School of Law
Visiting Professor of Law, Harvard Law School (Jan.-May 04)
Griswold Hall Room 507
Cambridge, MA 02138
office:  617-495-9083
home:  617-491-0489
fax:  617-496-5156




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