A discernable and manageable standard for partisan gerrymandering

McGann, Anthony J. and Smith, Charles Anthony and Latner, Michael and Keena, J. Alex (2015) A discernable and manageable standard for partisan gerrymandering. Election Law Journal, 14 (4). pp. 295-311. ISSN 1557-8062 (https://doi.org/10.1089/elj.2015.0312)

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The case of Veith v. Jubelirer (2004) challenges us to find a standard for partisan gerrymandering that is judicially discernable and manageable. Without such a standard even the most egregious partisan gerrymanders cannot be effectively challenged. However, we argue that the way to find a suitable standard is not to embark on a quest for a “new” standard. Rather it is to take the existing valid measures that science gives us, and show that these can be grounded in constitutionally protected rights. Using recent results in social choice theory, we show that the existing partisan symmetry standard can be derived from an individual right to equal protection. We also show that the existing technology for measuring partisan symmetry can provide a judicially manageable test for partisan bias.