Having had some more time to digest the (205-page!) decision striking down North Carolina’s congressional plan, I thought I’d share a few additional observations.
First, the decision demonstrates the manageability of the partisan gerrymandering test that was proposed in Whitford and applied here too. Under this test, a district map is invalid if (1) it was enacted with the discriminatory intent of benefiting a particular party and handicapping its opponent; (2) it has produced a discriminatory effect in the form of a large and durable partisan asymmetry in favor of the mapmaking party; and (3) no legitimate justification exists for this effect. Two federal courts and five judges have now employed the test without apparent difficulty. Even more encouragingly, the five judges were appointed by Carter, Carter, Reagan, George W. Bush, and Obama. In an area of law where outcomes often seem to follow party, this degree of bipartisan agreement is unusual and impressive.
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