Partisan Gerrymandering and the Constitutionalization of Statistics

Abstract

Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court’s most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy. This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake. The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage. This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.