Over the past decade, the growing polarization of the American electorate has led state political parties to redouble efforts to implement politically advantageous electoral maps. (1) Majority parties regularly adopt irregularly shaped districts in an attempt to pack opposition voters into a few districts while setting up their own "safe" legislative seats--a process popularly known as "gerrymandering." (2) The Supreme Court has addressed the practice twice. In Davis v. Bandemer, (3) the Court established that partisan gerrymandering presents a justiciable controversy, but it failed to settle on a test or standard to determine the constitutionality of any given plan. (4) After Bandemer, emboldened state legislatures created increasingly extreme districting maps with the purpose of entrenching the favored political party. The practice has escalated to the point that one commentator now believes that there are as many as four hundred safe congressional seats. (5) Eighteen years after Bandemer, the Court dismissed a similar case, Vieth v. Jubelirer, (6) because it was not able to agree on a workable standard to apply. (7) Vieth did not leave much hope of resolution, as four Justices advocated three separate approaches for adjudicating partisan gerrymandering claims, (8) four other Justices concluded that these claims presented a nonjusticiable controversy, (9) and one Justice found Vieth itself to be nonjusticiable, but hesitated to declare justiciability for all such suits. (10) Last Term, in League of United Latin American Citizens v. Perry (LULAC), (11) the Supreme Court attempted for the third time to create a reliable standard for adjudicating claims of political gerrymandering. Although the Court held that a redistricting plan violated section 2 of the Voting Rights Act with respect to a specific district, it once again dismissed appellants' claims of statewide partisan gerrymandering because of the absence of a workable standard. (12) It seemed plausible that the Court's new composition would lead to the resolution and consensus lacking in Bandemer and Vieth, but that hope proved to be misplaced; instead, the present Court gave no new direction for the political branches or lower courts. If anything, LULAC's limited majority opinion and six separate concurrences plunged partisan gerrymander jurisprudence deeper into confusion. The third failure to delineate a workable framework, along with the constitutional delegation of districting to Congress and the States, should have led the Court to rule partisan gerrymandering nonjusticiable as a "political question."
