Every be in guiding future justices. Discernibility refers “to

Every political gerrymandering standard that has been proposed up until this point has been rejected by the Court. In LULAC, however, a majority of the justices were open to implement a standard, and spoke in favor of partisan symmetry. Partisan symmetry highlights the idea that “a plan should treat the major parties symmetrically” (PG and EG) when converting votes to seats. the major parties should be treated symmetrically. No plaintiff that raised gerrymandering claims has argued for a partisan symmetry test since five justices in LULAC expressed their favorability towards it. The Court’s case law prior to LULAC highlights the hesitant acceptance of a standard that no plaintiff had met in Davis v. Bandemer, which followed the rejection of almost every test proposed in Vieth v. Jubelirer by the justices. The justices have considered all tests put forth by plaintiffs and each other, however, no test has been judicially discernible and manageable. Manageability refers to how “concrete a particular test is and how capable” (nyu law review) it will be in guiding future justices. Discernibility refers “to whether a doctrinal is suggested or compelled by legitimate legal materials such as constitutional language, structure, history, and precedent.” (nyu law review) JUSTICE SCALIA rejects each standard by “(1) arguing that they are too loose and unpredictable (i.e., unmanageable) or (2) arguing that admittedly manageable standards from other areas of constitutional law are not discernible in the Constitution” (nyu law review). Between Bandemer and Vieth, a plaintiff has not been able to convince the Court to strike down a district map on partisan gerrymandering grounds. The approach of the Bandemer plurality and JUSTICE POWELL’s argument for a totality-of-the-circumstances test were unmanageable for the plurality in Vieth. Along with the standards in Bandemer, JUSTICE SOUTER’s five-part test that required subjective quantification, JUSTICE STEVEN’s intent-based test, and JUSTICE BREYER’s unjustified minority entrenchment test were all rejected by the Vieth plurality for being unmanageable. The Court, since, has not been able to find a test that is both judicially discernible and manageable. Although no test has been identified between Bandemer and Vieth, JUSTICE KENNEDY concurred in Vieth stating that he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases” (Vieth-Kennedy p.1). After Vieth, a majority of the justices in LULAC expressed interest in the idea of partisan symmetry, which has been before the Court prior to partisan gerrymandering claims. JUSTICE KENNEDY wrote in his concurring opinion in LULAC that he did not “altogether discount its utility in redistricting and partisan litigation” (LULAC-Kennedy), referring to partisan symmetry and leaving the door open for the use of such a standard in future cases.


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