Partisan Gerrymandering and the Constitutionalization of Statistics

Recent partisan gerrymandering litigation has relied heavily on statistical metrics to identify constitutional violations. If this trend continues, quantitative analysis could become the crux of constitutional analysis. This Article describes how constitutional law founded on numerical thresholds transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights founded in moral principles, not to advance alternative policy arrangements.

Yet if quantitative outcomes are used to define rights, courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake. Courts should approach the problem of partisan gerrymandering using a principle-based approach, and identify constitutional violations when legislatures seize partisan advantage in democratic process.