Partisan Gerrymandering and the Qualifications Clause

IntroductionEvery ten years state legislatures redraw congressional districts in their states based on the results of the federal census. State legislatures draw these districts to favor the majority party controlling the legislature. More often than not, legislatures will gerrymander the districts to favor the current majority party, "packing" the opposition into as few districts as possible, or alternatively "cracking" the opposition into numerous districts to dilute the opposition's voting power.1 This results in oddly shaped districts that combine municipalities with little common linkage. The use of gerrymandering by state legislatures to influence a party's success in congressional elections is not a new phenomenon. However, technological changes have improved a legislature's ability to identify sympathetic voters and turned gerrymandering into a science.2 In addition, the relatively recent polarization of the Democratic and Republican parties and the evolution of mass media have exacerbated the consequences of gerrymandering. Gerrymandered districts lead to less democratic institutions and more polarized representatives. The combination of these factors undermines Congress's ability to function. This dysfunction was in full view when the federal government shut down in 2013.Those harmed by gerrymandering have sought legal action to create districts more reflective of the communities that make up the region. The Supreme Court has heard two major partisan gerrymandering claims.3 In these cases, litigants allege that their gerrymandered district violates the Equal Protection Clause and that the gerrymander is therefore unconstitutional.4 The Supreme Court's jurisprudence on this subject, however, has caused much confusion for both litigants and lower courts. First, the Supreme Court has divided on whether courts can even hear gerrymandering claims or if gerrymandering is instead a non-justiciable political question.5 Second, among the justices who find gerrymandering claims to be justiciable, disagreement has arisen as to what standard can appropriately determine that the gerrymander violated the Constitution.6 The standard the Court developed is an intent and effects test: litigants must establish that those drawing the district intended to gerrymander the district, and that the litigants suffered the effect of this GERRYMANDERING * 7 While the test may seem simple, multiple justices have disagreed about how to prove the effect of the gerrymander; that is, how a party can show that a gerrymandered district has harmed the litigant.8Judicial standards for gerrymandering create problems for the courts because voters' political preferences are not static. Proving the exact reason why one candidate won and another lost may be impossible. Furthermore, if a candidate loses despite running in a district gerrymandered for his party, then litigants will be unable to show that the gerrymander had any actual effect.This Note argues that the Qualifications Clause, instead of the Equal Protection Clause, provides a stronger basis for showing that gerrymandered districts violate the Constitution. When a state uses partisan gerrymandering to create districts in which only the chosen party can win, the state effectively creates an additional qualification requiring that the candidate for Congress be a member of the chosen party. The Supreme Court has held that the states cannot create qualifications beyond those enumerated in the Qualifications Clause of the Constitution. Thus, to the extent that a district gerrymandered along partisan lines creates effective qualifications for members of Congress, that district violates the Qualifications Clause and is unconstitutional. The Qualifications Clause provides a stronger basis because unlike the Equal Protection Clause, the Constitution permits no discretion to the states in managing the qualifications of members of Congress.Part I of this Note explores the signs that a state has gerrymandered its congressional districts and the subsequent consequences of that gerrymandering. …