GPO-CONAN-2017-10-15.pdf

2049 377 us 533 56566 1964 this phrase has had a life

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2049 377 U.S. 533, 565–66 (1964). This phrase has had a life of its own in the commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last , 1986 S UP . C T . R EV . 175, and sources cited therein. It is not clear from its original context, however, that the phrase was coined with such broad application in mind. 2050 The quotation is from the Baker v. Carr measure for existence of a political question, 369 U.S. 186, 217 (1962). 2051 478 U.S. at 133. Joining in this part of the opinion were Justices Brennan, Marshall, and Blackmun. 2214 AMENDMENT 14—RIGHTS GUARANTEED
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they relate to “the fairness of a redistricting plan” in determining whether it contains invalid gerrymandering. Among these factors are the shapes of the districts, adherence to established subdivi- sion lines, statistics relating to vote dilution, the nature of the leg- islative process by which the plan was formulated, and evidence of intent revealed in legislative history. 2052 In the following years, however, litigants seeking to apply Da- vis against alleged partisan gerrymandering were generally unsuc- cessful. Then, when the Supreme Court revisited the issue in 2004, it all but closed the door on such challenges. In Vieth v. Jubelirer, 2053 a four-Justice plurality would have overturned Davis v. Bandemer ’s holding that challenges to political gerrymandering are justiciable, but five Justices disagreed. The plurality argued that partisan con- siderations are an intrinsic part of establishing districts, 2054 that no judicially discernable or manageable standards exist to evaluate unlawful partisan gerrymandering, 2055 and that the power to ad- dress the issue of political gerrymandering resides in Congress. 2056 Of the five Justices who believed that challenges to political ger- rymandering are justiciable, four dissented, but Justice Kennedy con- curred with the four-Justice plurality’s holding, thereby upholding Pennsylvania’s congressional redistricting plan against a political gerrymandering challenge. Justice Kennedy agreed that the lack “of any agreed upon model of fair and effective representation” or “sub- stantive principles of fairness in districting” left the Court with “no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a given partisan clas- sification imposes on representational rights.” 2057 But, though he concurred in the holding, Justice Kennedy held out hope that judi- cial relief from political gerrymandering may be possible “if some limited and precise rationale were found” to evaluate partisan re- districting. Davis v. Bandemer was thus preserved. 2058 2052 478 U.S. at 173. A similar approach had been proposed in Justice Stevens’ concurring opinion in Karcher v. Daggett, 462 U.S. 725, 744 (1983). 2053 541 U.S. 267 (2004).
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