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University of Miami Law Review

Abstract

Under the Constitution, voters choose their elected officials. Partisan gerrymanders, however, enable elected officials to choose their voters and, in the process, dilute the votes of citizens who do not support them. From this perspective, partisan gerrymanders undermine the sovereignty of the people and, thereby, undermine the foundation of this democratic republic. In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering raises a nonjusticiable political question beyond the competence of the federal courts. This Article asks: How did this happen? How could the Supreme Court abdicate its duty to protect the sovereignty of the people and its duty to provide access to justice? The majority opinion, written by Chief Justice John Roberts, located the issues raised in these cases not in the jurisprudence of voting and voting rights but in a series of narrow claims about the competence of federal courts to craft appropriate legal standards. The dissent, penned by Justice Elena Kagan, focused on voters, voting, and the sovereignty of the people. Grounded in the constitutional values of a democratic republic, the dissent offered a passionate repudiation of virtually every element of the majority opinion. Yet, in the end, it was the dissent that developed a methodology, based on the work of the lower federal courts, for a workable standard for addressing the challenges that the majority rejected as impossible. It was the dissent that found a way forward based on the recognition of the modern technology of vote dilution that provides the basis for preserving the voters’ access to justice. Nevertheless, the crafty and at times disingenuous framework of the majority opinion that ignored voting rights and democracy prevailed. This Article suggests that this may well be only a temporary victory as a younger generation of lawyers, judges, and citizens with more experience with the technology of partisan gerrymandering will find the majority’s framework and strategy as implausible and unpersuasive as the dissent already did in Rucho.

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