Prof. Stephanopoulos's "Efficiency Gap" Measurement May Be "The Holy Grail of Election Law Jurisprudence"
When Does Political Gerrymandering Cross a Constitutional Line?
The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party would win an outsize number of seats. But it has left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme.
The problem, Justice Anthony M. Kennedy wrote in a 2004 concurrence, is that no one has come up with “a workable standard” to decide when the political gerrymandering has crossed a constitutional line.
Finding such a standard has long been, as one judge put it, “the holy grail of election law jurisprudence.”
In the coming weeks, the Supreme Court will consider an appeal from a decision in Wisconsin that may have found that holy grail. The case, Gill v. Whitford, No. 16-1161, arrives at the court in the wake of a wave of Republican victories in state legislatures that allowed lawmakers to draw election maps favoring their party.
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