• Lauren Mooney

Gerrymandering, Grand Theory, and Gill v. Whitford

Author: Levi Moneyhun, Fourth Year PPL Student

I. INTRODUCTION


Chief Justice Earl Warren, who presided over the Supreme Court’s historic decisions in

Brown v. Board of Education, Miranda v. Arizona, Loving v. Virginia, and more, identified

Baker v. Carr, which held legislative apportionment to be a justiciable issue and introduced the standard of “one person, one vote,” as the most important decision of his career. Compared to the Court’s decisions on segregation, criminal procedural rights, and anti-miscegenation laws, Baker v. Carr may strike a typical viewer of American history as insignificant. To Chief Justice Warren, the decision was vital for its recognition of the role the Court must play in protecting the political process. The role of the Court, as envisioned by Earl Warren, is to ensure that “everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community,” such that “most of the problems that we are confronted with [can] be solved through the political process rather than through the courts.”1 This case marked a significant milestone in the Court’s protection of the political process and, by holding reapportionment to be justiciable, open the door for further action in this area.


On October 3rd, 2017, the United States Supreme Court heard oral argument for Gill v.

Whitford, a case regarding partisan gerrymandering in Wisconsin. While the Court has heard

several cases on partisan gerrymandering (e.g., Veith v. Jubelirer and Davis v. Bandemer), it has never struck down a redistricting plan on the basis of partisan gerrymandering. As such, this case has the potential to be a new Baker v. Carr for a new generation—a new finding from the high Court to address a growing ill in our political process. As evidenced by its difficult history in the courts, partisan gerrymandering poses a dilemma for jurists. Given the Constitution’s scant 1 Whitman, Alden. “Earl Warren, 83, Who Led High Court in Time of Vast Social Change, Is Dead,” New York Times, July 10, 1974. guidance on apportionment, a textualist approach (i.e., “clause-bound interpretivism”) may struggle to yield a satisfactory answer. A non-interpretivist approach, resting on the premise that there exists some set of overarching substantive moral principles embedded in the Constitution provides little guidance on issues of process, such as gerrymandering. A theory of judicial review

based on the political process, as described by John Hart Ely, seems to provide a clearer answer.


In this paper, I will explore the merits and failings of the textualist approach and the non-

interpretivist approach with regard to gerrymandering, and then search for an answer down the third path of process theory.


II. GILL V. WHITFORD

The term “gerrymander” originated as a portmanteau of “salamander” and the last name

of Elbridge Gerry, Governor of Massachusetts. In 1812, Governor Gerry signed a redistricting

bill which benefitted the Democratic-Republican party at the expense of the Federalist party and contained a district near south Essex which, as pointed out in a Boston Gazette cartoon, appeared conspicuously serpentine. The term now generally refers to the practice of using redistricting to establish political advantage. However, gerrymandering can also exist in a racial, rather than political, form, diluting the voting power of racial minorities via manipulation of district lines.


To combat the practice of racial gerrymandering, Congress passed the Voting Rights Act of

1965, prohibiting racially discriminatory voting procedures, including dilution via discriminatory redistricting. While the Court has upheld this requirement of the law, it has found some means of compliance with it to be unconstitutional. In Shaw v. Reno, the Court held that, while those involved in redistricting must consider race to the extent that they ensure that the lines they draw do not result in racial dilution, they cannot create districts which are so otherwise bizarre that they can only be explained on the basis of race. Racial considerations in the districting process, even if intended to have a positive effect on a minority group, must be held to a standard of strict scrutiny under the equal protection clause. This shows that, in addition to some districting actions forbidden by law, there are some which the Court holds to be forbidden by the Constitution itself.


However, there exists no law against partisan gerrymandering, and the Supreme Court

has never invalidated a districting pattern on the basis of excessive partisan consideration or

effect. In Veith v. Jubelirer and Davis v. Bandemer, the Court held that issues of political

gerrymandering are justiciable, but in both cases it failed to discover a manageable standard by which to resolve them. Justice Kennedy, concurring in the judgement of the Veith v. Jubelirer, held out hope that such a standard exists and expressed willingness to exercise review on political gerrymandering should it be found. What makes Gill v. Whitford particularly noteworthy is that the plaintiffs claim to have found such a standard, utilizing a mathematical measure called the efficiency gap. Assuming that the Justices follow either their actual votes in Veith v. Jubelirer or those of their spiritual predecessors, Justice Kennedy once again will have the capacity to swing the decision. As his vote presumably rests on the adequacy of this new standard, the stakes are high for the efficiency gap.


The efficiency gap measures—or at least claims to measure—the degree of asymmetrical

partisan gerrymandering in a given election. Comparing each party’s “wasted votes”—i.e., votes cast for a losing candidate or votes cast in excess of those needed to elect the winning

candidate—and is calculated as the difference between two parties’ wasted votes, divided by the total number of votes cast.3 This is significant as it enables scalar empirical demonstration of gerrymandering’s effect. It allows plaintiffs to make claims on the severity of the effect of

redistricting against their interests and the degree of distortion from a fair districting pattern.

Insofar as each of the judicial theories to be explored provides grounds for objection to

gerrymandering, these grounds depend on different claims, some of which could already be

satisfied without this measure, some which still cannot be satisfied, and some whose satisfaction

may turn on the adequacy of this standard. In the following sections, I will explore the

interaction between several major grand theories, the issue of partisan gerrymandering, and the

new measure introduced in Gill v. Whitford.


III. GRAND THEORY

Before exploring each theory’s answer (or lack thereof) to the issue of political

gerrymandering, let us first consider why and whether such grand theories are actually necessary

or useful. From its genesis in Marbury v. Madison, judicial review has occupied a perilous place

in American democracy. That nine unelected justices can overturn the actions of popularly

elected agents seems fundamentally at odds with the ideal of democratic self-governance. For

this arrangement to appear legitimate, judicial review must have some justification and some

limit. Each theory explored herein purports to offer both. Under a textualist theory of judicial

review, the Supreme Court is justified in striking down certain acts of popular will when they

conflict with the superior, more permanent popular will expressed in the text of the constitution.

The Court is justified in that it simply acts as the speaking agent of the Constitution and is

restrained in that it goes no further. The noninterpretive theories discussed herein claim that

judicial review is justified not in spite of its undemocratic nature but because of it. The

Constitution, they claim, embeds certain fundamental principles which the Court must enforce by

striking down legislative action when it conflicts with these principles. While the principles are embedded in the text, resolution of questions on these principles require reference to external

sources. Each non-interpretive theory constrains the Court within the bounds of its claimed set of

embedded values. Process theory rests on the idea that the political process is better suited than

the judicial process to make substantive judgements but is also prone to procedural failures

which corrupt the resultant substantive decisions. The Court, playing the part of procedural

policeman, is both justified and restrained by this division of labor: The Court will handle

procedure, and the legislature/executive will handle substance.

Each of these theories attempts to justify judicial review and define its scope. One should

wonder, however, why an agency with no enforcement power must limit itself. Does the Court’s

complete lack of de facto coercive power not provide a sufficient limit on its authority? The

Court’s power is an illusion, derived solely from its prestige and from popular deference to this

prestige. These theories, seeking to maintain the Court’s prestige, serve to further this illusion

and enlarge, rather than restrain, the Court’s power. However, this does not make the theories

useless. It is important for the Court to convince the public that it’s action is justified and that its

action takes place on some higher plane of existence than lowly legislative quarrels. Explaining

decisions with grand theories accomplishes both of these tasks. Continual contortion of these

theories works against these goals, so the purveyors of these theories have reason to strive for

internal consistency. Judicial pragmatists may be correct to criticize grand theories as sophistry,

but they must also recognize the usefulness of this sophistry. Further, they must note how this

effectiveness varies across varies combinations of theories and issues.


IV. TEXTUALISM

Having shown the usefulness of coherent theoretical justification, even under a pragmatic

view of the Court, we will now examine some possible textualist responses to the issue of

gerrymandering. Initially, the text of the Constitution seems to present a clear answer. Article I,

Section 4, Clause 1 states that “the Times, Places and Manner of holding Elections for Senators

and Representatives, shall be prescribed in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter such Regulations, except as to the Places of

chusing Senators,” clearly granting states the power to conduct elections and Congress the power

to regulate elections.4 The textualist would likely grant that Congress has the power to prohibit

gerrymandering by state legislatures, but he would also surely point out that Congress has taken

no such action. To the textualist, such a case clearly warrants judicial deference to Congress’

inaction.

However, delegation of powers to state is not without limit. The 14th Amendment

prohibits states from “mak[ing] or enforc[ing] any law which shall abridge the privileges or

immunities of citizens of the United States, . . .depriv[ing] any person of life, liberty, or property,

without due process of law, . . . [or] deny[ing] to any person within its jurisdiction the equal

protection of the laws.”5 Further, the 15th Amendment prohibits States from denying or

abridging a citizen’s right to vote on the basis of “race, color, or previous condition of

servitude.”6 The textualist’s search cannot stop with Article I, Section 4, Clause 1. Rather, he

must consider the possible limitations on state action, as expressed throughout the Constitution

and subsequent amendments.

The Equal Protection clause of the 14th Amendment seems to provide a possible

textualist grounds for objection to some state redistricting plans. An attempt to discern which

plans would be objectionable, however, reveals some difficulty with a textualist position. The

4 U.S. Const. art I, § 4. 5 U.S. Const. amend. XIV 6 U.S. Const. amend. XV

Constitution does not explain whether the “equal” in Equal Protection means “nominally similar”

or “effectively equivalent.” For example, a law requiring a $500 processing fee to submit a ballot

for an election applies in a nominally similar way to both the rich and poor, but results in a very

disparate effect. Similarly, while even a severely gerrymandered election counts each

individual’s vote equally, individuals’ votes do not appear to be equally efficacious. To resolve

this, the textualist may look at the original intent of the 39th Congress, which proposed the 14th

Amendment, or at the intent of the state legislatures which ratified it. However, such analysis is

likely to be indeterminate. The perceived purpose of the Amendment differed among its

proponents, and their internally held conceptions of its purpose may have diverged even further.

A textualist may attempt to make an argument from original intent, but, as most modern

textualist have realized, such an argument is unlikely to survive significant scrutiny.

In lieu of original intent, most textualist, including Justices Scalia and Thomas, turn to

originally understood meaning, referencing dictionaries of the time, popular usage of terms, and

historical context, including subsequent application of the text in question and relation of the text

to historical circumstances. Such an approach seems both more determinate and more

convincing. However, two appropriately skilled, ideologically divergent textualists could easily

find significant conflicting evidence to support their conflicting positions. Allowing even a self-

proclaimed textualist to step outside the Constitutions four corners and into the vast reaches of

historical evidence, jurisprudence of original understanding is susceptible to much of the same

indeterminacy the beleaguers noninterpretivist theories, though an admittedly lesser extent.

However, the principle defect of this approach is not the loss of determinism which the

introduction of historical evidence causes, but rather the introduction of historical evidence itself.

While the case for textual analysis in Constitutional jurisprudence is iron-clad—the people of the

United States ratified the text to be supremely binding on all future decisions—the case for

historical analysis is shaky at best. It cannot be reasonably argued that, in ratifying the text of the

Constitution and subsequent amendments, the people also ratified the historical facts of the time.

In ratifying the text of the 14th Amendment, the historical fact of segregation did not become

legal doctrine. When the people ratified the 15th Amendment, they did not also ratify the

practices of voter intimidation and de facto denial of voting rights that occurred in the years that

followed. The long history of gerrymandering and the relatively recency of challenges thereto

provide no dispositive evidence on the issue of gerrymandering. At best, they are merely

informative. More likely, they are distracting and deceptive. At its heart, the Constitution

represents a plan for government, but this plan contains a multitude of ideals. Historical failure to

satisfy the ideals within the plan should not be construed as having altered the plan to exclude

these ideals.

Textualism provides a determinate answer only when the text provides a determine

answer—i.e., rarely. The Constitutions abounds with vague language and balancing acts, few of

which can be resolved internally. An issue as complex as gerrymandering necessitates reference

to outside sources. To do so in the name of textualism simply disguises this exercise. However, it

may prove a convincing disguise. Insofar as grand theories of jurisprudence help justify judicial

review, they must approach perfection. To maintain or enlarge the prestige of the Court,

however, they must merely sustain the appearance that the Court’s decisions and supporting

reasoning are substantially different from those of the legislature and executive (i.e., legal rather

than political and objective rather than ideological). Ultimately, with regard to gerrymandering,

textualism seems incapable of accomplishing the first objective and only moderately better

equipped for the second.

V. NONINTERPRETIVISM: DWORKIN AND EQUAL DIGNITY

In contrast to textualism’s professed allegiance to the words on the page, non-

interpretivist theories of jurisprudence readily admit their willingness to search elsewhere. Given

the apparent necessity of doing so, this may enable them to offer clearer answers on complex

issues such as gerrymandering. To determine whether that is in fact the case, we shall examine

the theories of two prominent and sharply divergent non-interpretivist scholars: Ronald Dworkin,

who professes a jurisprudence based on a moral philosophy of human dignity, and Richard

Epstein, whose jurisprudence derives from a libertarian theory of property rights.

Dworkin’s jurisprudence begins with the premise “that men have moral rights against the

state.”7 As such, he claims, “the difficult clauses of the Bill of Rights, like the due process and

equal protection clauses, must be understood as appealing to moral concepts rather than laying

down particular conceptions; therefore, a court that undertakes the burden of applying these

clauses fully as law must . . . be prepared to frame and answer questions of political morality.”8

Dworkin’s next task, then, is to articulate a framework for these questions of rights and morality.

Noting that the existence and importance of rights is relatively uncontroversial, he strives to

develop a means for discovering and balancing rights. Dworkin considers two accounts for the

origin of rights: first, a Kantian account, which “supposes that there are ways of treating a man

that are inconsistent with recognizing him as a full member of the human community” and

defines rights as those things requisite for such recognition; second, an account from political

equality, holding that “the weaker members of a political community are entitled to the same

concern and respect . . . as the more powerful members.”9 The Kantian account establishes that

7 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 147. 8 Dworkin, Taking Rights Seriously, 147. 9 Ibid, 198-9.

Moneyhun 10

people have a right to certain level of dignity and respect; the account via political equality

establishes that this right is held equally by all members of society. Dworkin, synthesizing the

two, holds essentially that people have a right to equal dignity and respect and to those things

which constitute equal dignity and respect.

With regard to the delicate balancing act between individual rights and the general social

good, Dworkin acknowledges that it is costly to either infringe or inflate moral rights.

Demonstrating his commitment to taking rights seriously, he holds that we should weigh the cost

of infringement much more seriously than the cost of inflation. The inconvenience the majority,

to Dworkin, rarely, if ever, outweighs the importance of individual rights. Dworkin’s conception

of rights as those things which constitutes equal dignity and respect necessarily includes many

positive rights and seems to be much more concerned with de facto equality than mere nominal

equal treatment. As such, he may be able to coherently argue for a right to representation which

mandates not only that each vote be counted equally—as the Court declared in Baker v. Carr—

but also that each vote have equal capacity to affect the outcome of an election. This distinction

seems to allow Dworkin to condemn partisan gerrymandering as an abrogation of equal dignity

and respect. On a closer look, however, it cannot.

The impossibility of achieving the latter mandate, interpreted as distinct from the first,

gives us good cause to suspect that it cannot in fact be distinct. Whether we define ability to

affect the outcome of an election as the probability of being the deciding vote, the probability of

being a causally necessary vote, or anything other than one’s vote simply being counted, we are

led to an impossible conclusion. Under any measure other than mere counted-ness, the efficacy

of a vote varies directly with closeness of an election and inversely with the size of the

electorate.10 Thus, in any multi-district election, equalizing the efficacy of votes would require

creating equally competitive districts of equal size—an impossible demand within the constraints

of any geographic system of representation. Unless Dworkin hopes to take the precarious stance

that geographic representation itself is a denial of equal dignity and respect, he must accept that

the equal efficacy of votes either is not distinct from them being counted equally or is not

important. Thus, he cannot object to gerrymandering on this basis.

Perhaps he could instead object that it is a denial of human dignity to classify people into

districts on the basis of their political affiliation. This may allow him to oppose partisan

gerrymandering, but it would not allow him to solve the Court’s dilemma on gerrymandering.

The facts of political geography—i.e., liberals tend to live in cities, conservatives tend to live

outside of cities and, more generally, those with similar ideologies tend to group together

geographically—lead to the unfortunate reality that districting on the sole basis of geography can

lead to patterns of districts similar in effect to partisan gerrymandering. Under this basis for

objection, the courts could not stop partisan gerrymandering except when able to demonstrate

motive, and the facts of political geography make motive incredibly easy to disguise. Further,

this Dworkinian view does not seem to bode well for the efficiency gap. The harm done by

gerrymandering, under this view, is not the unfair political advantage it confers on one party over

another, but its abrogation of individual entitlement to equal respect. A test reliant on the

efficiency gap measures the former rather than the latter. While Dworkin’s theory provides

grounds to object to political gerrymandering, it does not seem to provide grounds to vote

accordingly in Gill v. Whitford.

Dworkin’s constitutional philosophy emphasizes the importance of moral philosophy.

Unfortunately, it seems that moral philosophy, by nature addressed to the substance of politics,

does little to inform us on its proper procedure. But there is an upside for Dworkin: if the court

vigorously protected the substantive rights of procedurally disenfranchised groups, their

procedurally disenfranchisement would be much less problematic. Dworkin’s theory begins from

an understanding of Constitutionalism not just as a specific plan for democracy, but also as a

condition upon democracy—that the majority may rule only up to the boundary of fundamental

individual rights. His theory accepts that democracy will err. Rather than seeking to correct

democratic procedure such that the process would not lead to abrogation of fundamental rights, a

Dworkinian court would simply intervene when the process fails.


VI. NONINTERPRETIVISM: EPSTEIN AND TAKINGS

Epstein, like Dworkin, firmly believes that individuals have moral rights against the state.

However, unlike Dworkin’s positive conception of equal dignity and respect, Epstein’s

conception of rights is almost entirely negative. Individuals have few, if any, rights to things, but

instead strong rights from things—particularly, infringement upon their private property. Thus,

there a few things a government must do and many things it must not do. Like Dworkin, Epstein

finds the text of the Constitution incomplete. To find all the answers, one must look elsewhere.

First, Epstein looks briefly to moral philosophy and finds that the right to property is the most

important right for the Court to consider. From here, he turns away from moral philosophy and

towards economic analysis. He comes to the conclusion that most government actions constitute

some form of “taking”—i.e., a seizure of or infringement upon property— and that such actions are only justifiable when they (a) increase the total welfare of society and (b) are accompanied

by just compensation to those who experience a taking.11

Epstein’s theory constrains democratic governance many degrees further than that of

Dworkin. However, it does not seem to provide him with any plausible grounds from which to

object to gerrymandering. Unlike Dworkin’s theory of equal dignity and respect, Epstein’s

theory of property seems completely irrelevant to issues of political representation. Unless

Epstein proposes that a citizen’s private property includes some proper share of political power,

a position entirely contrary to his general legal theory, no “taking” occurs when one is placed in

a district intended to waste their vote or when one’s favored political party is disadvantaged by a

pattern of redistricting. As a theory of substance, Epstein’s work is understandably of little

informative value on such a procedural issue. Content with authorizing the Court to enforce his

extensive conception of substantive rights, Epstein has no need or desire to concern himself with

the political process by which these rights may alternatively be protected.

Dworkin and Epstein’s disinterest in questions of process renders their theories fairly

weak for resolving such questions. While the two theorists provide fairly convincing arguments

for their preferred methods of outside reference to resolve judicial questions, their disregard for

the political process should arouse our suspicions. Epstein and Dworkin embrace the function of

the Court as a superlegislature and may be right to do so. However, their disregard for the

process which occurs outside the high Court indicates their theories’ incompatibility with a

society which values democracy in itself. While Dworkin and Epstein can bite the bullet on

issues of process to maintain their theories’ internal consistency, they sacrifice their ability to

maintain the illusion of the Court’s decisions as non-ideological in doing. Their theories’

inability to answer questions of process shatters the veil which grand theory, under a pragmatic

view, serves to maintain.


VI. PROCESS THEORY

John Hart Ely proposes a theory of jurisprudence focused on resolving questions of

process. Like Dworkin and Epstein, he presents textual support for his theory—far more

extensive and convincing evidence than either of them—but his theory is ultimately not one of

textual interpretation. Instead, on the basis of textual evidence, he finds the Constitution to be a

document which “is overwhelmingly concerned . . . with ensuring broad participation in the

processes and distributions of government” and presents arguments for “a participation-oriented,

representation reinforcing approach to judicial review.” The Court, under this theory, should not

decide issues of substance, as “the selection and accommodation of substantive values is left

almost entirely to the political process,” but instead should simply police this process to ensure

that it discovers substantive values in a fair manner.12 Ely finds his theory articulated in the

fourth footnote in the Court’s opinion in United States v. Carolene Products Co., which suggest

that the Court may apply special scrutiny to legislation “which restricts those political processes

which can ordinarily be expected to bring about repeal of undesirable legislation” and to

“statutes directed at . . . discrete and insular minorities.”13

Partisan gerrymandering, a clear case of the “ins . . . wanting to make sure the outs stay

out,” appears to be a perfect fit for process theory.14 Gerrymandering distorts political outcomes

in favor of the group controlling the districting process. It can allow the majority party to win a

much greater legislative seat majority than their popular vote share should warrant, or even allow

a favored party to win a majority of legislative seats without commanding a majority of the

popular vote. This is a clear corruption of political process and its resultant substantive decisions.

Ely commended the Court’s action in Baker v. Carr and Reynold v. Sims for firmly emphasizing

the individual right to vote and by further declaring that this right must be extended on an equal

basis, via the standard of “one person, one vote.” The case against gerrymandering seems to be a

logical extension of the case against malapportionment. Just as “one person, one vote” equalized

each citizen’s power in choosing his or her representative, a workable anti-gerrymandering

standard might seek to equalize each citizen’s power in selecting the overall balance of the

representative body. Initially, this seems like a plausible and manageable stance on

gerrymandering. Under more careful examination, however, it fails. Just as it did for the other

theories, the hard case of gerrymandering helps expose fundamental flaws in process theory.

This standard, which process theory seems to suggest for gerrymandering implies that

gerrymandering diminishes certain individual’s voting power. However, in a pattern of

districting which concentrates members of a minority party into several districts in order to

prevent them from attaining a majority in other districts, it does not seem clear whose voting

strength has been diminished. Is it those in “packed” districts, those in “cracked” districts, or

both? The first two answers are unsatisfactory. To pack a minority block into a district requires a

corresponding degree of packing levied against the majority. Similarly, cracking a minority

block is impossible without also dispersing a majority block to a corresponding extent. To say

that harm is done only to those in packed districts or only to those in cracked districts in to

suggest that a pattern of gerrymandering which grants electoral advantage to the majority party

harms majority-party and minority-party voters alike. Rather than harm depending on the benefit

or harm to one’s party, it would simply depend on which of the two means of distortion was

applied to one’s district to achieve this benefit or harm. Perhaps it would be coherent to suggest

that only members of the disadvantaged party are harmed, and that they are harmed in both

packed and cracked districts. However, this is no longer a claim of abrogation of one’s voting

rights. It is a claim which seems to suggest no wrong to any individual, but instead aggregate

harm to a party, which is then distributed amongst individuals with an interest in that party’s

success.

Under this idea of harm, process theory demands a standard which seeks not to equalize

some individual impact or entitlement but rather to minimize distortion of the political process.

The efficiency gap seems to provide the framework for such a standard by measuring the relative

degree of advantage or disadvantage conferred on each party by a particular scheme of distortive

districting. Unlike the other two theories discussed, process theory accepts the idea of aggregate

harm to the political process itself as a problem which in itself warrants Court intervention, so it

seems that a process-based theory of interpretation can take advantage of the new efficiency gap

measure introduced in Gill v. Whitford in a way that the other theories cannot. However, the

efficiency gap itself is not a standard, simply a measure. One possible standard including this

measure would be to consider any non-zero efficiency gap problematic, in the same way that

variance in the population of legislative districts in considered problematic under Baker v. Carr

and Reynolds v. Sims, and use similar balancing tests to allow for slight imperfections. While

such a standard seems harsh, it is plausible that this more intrusive rule would be less intrusive in

practice than a more lenient standard, due to the clarity of its implication for redistricting

commissions.

This naturally creates a difficult question of standing, an issue which is suspiciously of notable importance to the Court and little importance to these constitutional theorists.


Balancing adherence to the “one person, one vote” standard against traditional districting

requirements (e.g., compactness, contiguity) has proven challenging for those engaged in

redistricting. Adding a standard of efficiency to these already extensive demands may render the

task of redistricting near impossible. Perhaps the Court should then consider an even more

manageable standard: the abolition of geographic representation in favor a system of

proportional representation. In such a system, the deviation of the legislative seat balance from

the popular vote spread is limited to no more than what rounding necessitates. However, the link

between representatives and constituents would be lost. Before considering possible ways the

Court may undertake the balancing act between these considerations, one should note what this

may reveal about process-based jurisprudence: first, that the concept of proper political process

is not objective; second, that the task of maintaining proper political process gives judges much

wider latitude than initially apparent.

Mark Tushnet criticizes process theory on the grounds that while “designed to prevent

legislative and judicial tyranny, [it] can prevent one only by creating the risk of the other.”16

Without the ability to impose such drastic measures as “one person, one vote” and proportional

representation (or at least zero-efficiency districting), the Court is unable to prevent legislative

tyranny. To grant the Court such power, however, seems quite opposite of preventing judicial

tyranny. In seeking to constrain the judicial and legislative branches, it is not enough to

distinguish between substance and process and divide the two amongst them. This is doomed to

fail because of the lack of a true distinction between substance and process. Laurence Tribe

demonstrates that this distinction is not merely difficult to discover but in fact nowhere to be

found, arguing as follows:


If process is constitutionally valued, therefore, it must be valued not only as a means to

some independent end, but for its intrinsic characteristics: being heard is part of what it

means to be a person. Process itself, therefore, becomes substantive. There is a curious

irony here. One who holds that constitutional law should aim chiefly to perfect process is

apparently unable to treat process as itself valuable. Instead, the process-perfecter must

treat process as ultimately instrumental, as but a means to other ends, and thus must

regard as secondary what he would at the same time celebrate as primary.17

This attempted distinction’s failure is further revealed in the issue of gerrymandering when one

attempts to discern the precise nature of the right to vote in a representative democracy. It may

be interpreted as a right to indirectly influence national politics or as a right to directly choose a

geographic agent to act in national politics. The question, like many other facially procedural

issues, ultimately cannot be answered without a judgement of substance.

In addition to the internal failures of Ely’s theory, one must confront serious flaws in its

textual justifications. Many provisions of the Constitution are undoubtedly procedural, but the

document in no way lacks statements of substance. For example, security in one’s home, liberty

of contract to freedom of religion, and protection from cruel and unusual punishment are

overwhelmingly substantive rights, even if they may have have some arguable procedural

purpose. As convenient as it would be if the founders had committed substance to the political

process and procedure to the judiciary, it does not appear that they did so. Rather than seeking

and finding a textual answer, Ely begins from the premise that the judiciary is bested suited to


questions of process and the political process is best suited to questions of substance, then

searches the Constitution for ad hoc justification.

While this initial premise is sounder than the questionable evidence presented in its favor,

it is not without fault. Ely’s theory accepts that democracy may be prone to distortion and is

likely to treat minorities poorly when left unrestrained. However, he still shows immense respect,

even reverence, for democratic outcomes. He maintains such faith in democracy that he denies

the possibility that a properly functioning democratic majority could unjustly abridge its own

rights and shapes his entire judicial theory around reconciling judicial review with majoritarian

democracy. However, democracy may not deserve the deference he gives it. Many political

theorists suggest that non-ideal outcomes are not evidence of improperly functioning democracy

but instead the exact outcomes we should expect from properly functioning democracy. Under

their views, democracy is not prone to pollution from outside but instead broken from within by

its very nature. Even a well-policed process, they claim, would produce non-ideal outcomes.

Review of process, while perhaps helpful, it is likely not sufficient. Even if Ely’s proposed

methods are sound, he may be striving for the wrong goal.

While a process theory of jurisprudence seems tailor-made to resolve cases of

gerrymandering, it is not immune from the difficulties faced by other theories. For both

originalism and non-interpretivism, attempts to resolve the issue of gerrymandering reveal each

theory’s internal incapability of answering its own demands. Process theory fares no differently.

Under this theory, the Court cannot address the issue in a manageable way without sacrificing

the pretense of judicial restraint and cannot address it whatsoever without making at least some

substantive judgement. Like the other theories, process theory seems to fail on its own terms.


However, that may not be the performance metric of true importance. If we accept the

idea of grand theories as mere sophistry to preserve and enlarge the power of the Court, they

need not be evaluated on their own terms but instead simply on their convincingness. Process

theory’s simultaneous simplicity and sophistication makes it especially attractive as a

justification regarding issues as complex and popularly relevant as gerrymandering. Further,

unlike other theories, process theory is capable of utilizing the efficiency gap measure when

making arguments of harm and developing standards of review. Even if Ely is just a sophist,

protecting the power of the Court by claiming to restrain it, he may be the most convincing of the

sophists studied here. Often viewed as a middle ground between textualist and non-interpretivist

theories, process theory is a mild flavor, palatable for most. It relies on simple but convincing

distinctions and appears to assign judges a simple but important task. This appearance of benign

simplicity allows process theory to justify wide-reaching decisions—like Baker v. Carr and

potentially Gill v. Whitford)—without receiving the same scrutiny as other theories. Textualism

can be easily cast off as unnecessarily binding us to the dead hand of the past and non-

interpretivism can be chastised as legislating from the bench. Though critiques of process theory

exist, they do not approach this level of pith or public understandability. Politicians can arouse

enthusiasm by railing against judges stuck in the past or judges who impose their values through

judicial opinions, but one should not expect much applause if he promises to put an end to false

dichotomies between process and substance and failures to adequately recognize the subjective

nature procedural questions. While none of these theories can accomplish grand theory’s grand

goal, process theory seems highly capable of accomplishing the more cynical goal of maintaining

the illusion which sustains the power of the Court.

Moneyhun 21

VII. CONCLUSION

Ultimately, these grand theories fail to achieve determinate, coherent answers for the

issue of partisan gerrymandering, but this does not render them useless (or at least not equally

useless). It may be true that the Court makes decisions best when it approaches cases

pragmatically, one at a time, rather than through the lens of some overarching theory. However,

this pragmatic approach weakens the perceived distinction between the Court and the political

branches, upon which the power of the court depends. Without the perception that the Court’s

orders are higher, not only in authority but also in spirit, than those of the executive and

legislative branches, the Court has no power. Congress controls the purse, the president controls

the sword, and the Court controls nothing. The best its Justices can do is to don their black robes

and speak with enough poise and restraint to stop the masses from noticing that they are naked

underneath. On the issue of political gerrymandering, Ely’s theory of process-based

jurisprudence seems to provide their most effective distraction.

Moneyhun 22

Works Cited

Caplan, Bryan. Myth of the Rational Voter. Princeton: Princeton University Press, 2007.

Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press, 1977.

Elmer, Griffith C. “The Rise and Development of the Gerrymander.” (PhD diss., University of

Chicago, 1907.)

Ely, John H. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard

University Press, 1980.

Stephanopoulos, Nicholas and McGhee, Eric. “Partisan Gerrymandering and the Efficiency

Gap.” University of Chicago Law Review 82 (2015): 831.

Tribe, Laurence H. “The Puzzling Persistence of Process-Based Constitutional Theories.” The

Yale Law Journal 89, no. 6 (1980): 1063.

Tushnet, Mark. Red, White, and Blue: A Critical Analysis of Constitutional Law. Cambridge:

Harvard University Press, 1988.

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