Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.
A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.
The right of expressive association
There is an obvious difficulty in relying on the First Amendment in partisan-gerrymandering cases: The Supreme Court has never considered voting a form of protected speech. It has, however, long recognized that voting is a form of protected association, at least in certain contexts. Before getting to those cases, its helpful to examine the roots of the right of expressive association.
The original associational-rights cases involved groups like the NAACP and the Communist Party that were extremely unpopular one might even say persecuted in many parts of the country. In NAACP v. Alabama ex rel. Patterson, for example, the Supreme Court invalidated a requirement that the NAACP disclose its membership list. Justice John Marshall Harlan IIs opinion for the court remarked that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. In other words, expressive association is a necessary corollary of free speech.
The right of expressive association is closely linked to the First Amendments prohibition on content and viewpoint discrimination. As Justice Antonin Scalia put it in one of his last dissenting opinions, the First Amendment is a kind of Equal Protection Clause for ideas. It prohibits the government from abusing its authority to suppress disfavored points of view. Most importantly, it restricts the dominant political groups authority to diminish the voices of those who might challenge their grip on power.
Thus, in the first generation of association cases, disfavored groups like the NAACP and the Communist Party relied on the First Amendment to prohibit the government from taking adverse action against them and their members. These cases rest partly on the individual liberty interest identified in NAACP v. Alabama. But theyre also grounded in a larger vision of how democracy should function.
A leading example is the line of patronage cases that began with Elrod v. Burns, in which the Supreme Court struck down the practice of firing public employees who werent members of the Democratic Party, which controlled Cook County, Illinois. After describing the harm to individual employees, the plurality turned to systemic concerns arising from this practice: It is not only belief and association which are restricted where political patronage is the practice, wrote Justice William Brennan. The free functioning of the electoral process also suffers. Discrimination against non-party members tended to starve political opposition, thus tip[ping] the electoral process in favor of the incumbent party. In other words, party-based discrimination distorts the political process, entrenching the dominant party in power while subordinating its chief rival.
Voting as association
Partisan gerrymandering effects a comparable systemic harm, albeit through a different mechanism. By manipulating district lines, the dominant party can entrench itself in power even when the political winds shift. The increasingly sophisticated technology that line-drawers have at their disposal exacerbates the problem. It allows the dominant party to capture a large percentage of seats while ensuring that its majority will hold in both bad times and good.
Thats true not only in Wisconsin, from which Gill v. Whitford emerges, but in other states that would be competitive but for gerrymandering. Take my own state of Ohio. Although Ohio is a consummate purple state in presidential elections, Republican mapmakers drew lines there in 2011 that give their party a supermajority of districts three-quarters of the states congressional delegation and roughly two-thirds of its state legislative districts. These districts were drawn with the goal of creating a firewall that would ensure Republican control even in a strong Democratic year. And theyve been a spectacular success, ensuring Republican control of the Ohio state legislature throughout the current decade. Because they diminish the power of the non-dominant party in a manner thats both substantial and enduring, excessive partisan gerrymanders violate the right of expressive association.
Still, one might argue that compelled disclosure and patronage are very different from redistricting. In the original association cases, particular individuals were harmed discouraged from or punished for affiliating with disfavored groups. Moreover, those cases dont directly involve voting. Its a leap, one might argue, to hold that the right of association is implicated when voters, candidates and parties associate through the electoral process.
As it turns out, the Supreme Court made this leap long ago. For almost a half-century, the court has recognized that voting is a form of association protected by the First Amendment. The first voting-as-association case was Williams v. Rhodes, which challenged Ohios ballot-access requirements for new political parties like George Wallaces American Independent Party. Justice Hugo Blacks opinion for the court relied on both the First Amendment right of association and equal protection to strike down this requirement. Ohios onerous rules for adding new parties to the ballot gave the two old, established parties a decided advantage plac[ing] substantially unequal burdens on both the right to vote and the right to associate. In Williams, the Supreme Court thus stressed the risk of dominant parties using voting rules to entrench themselves in power, thereby harming non-dominant parties and their supporters.
Several years later, in Anderson v. Celebrezze, the Supreme Court again relied on the right of association to invalidate another ballot-access rule in Ohio, this time one that would have kept John Anderson from running as an independent presidential candidate in 1980. Justice John Paul Stevens opinion for the majority recognized that theres no litmus-paper test to separate valid and invalid restrictions on voting and association. Rather, the court should weigh the character and magnitude of the burden on voting and association against the states asserted interests. Although reasonable, nondiscriminatory restrictions can usually be justified by important regulatory interests, a stronger justification is required for more serious burdens, including ones that discriminate against outsider candidates and their supporters.
A subsequent case involving write-in voting in Hawaii, Burdick v. Takushi, reaffirmed Andersons flexible standard while clarifying that strict scrutiny applies only if the burden on voting and association is severe. Other cases like Tashjian v. Republican Party of Connecticut and Washington State Grange v. Washington Republican Party apply this standard to electoral rules that burden the associational rights of major parties and their adherents. The Anderson-Burdick balancing test is now used in constitutional challenges to a wide variety of election laws, including ballot access, blanket primaries and even voter ID. Whats not commonly recognized is that this legal standard originated in voting-as-association cases.
Applying the voting-as-association standard
Its true that the Supreme Court hasnt yet applied the Anderson-Burdick standard to partisan gerrymandering. In fact, the court has been maddeningly unclear about what legal standard should apply in these cases. But for several reasons, the standard emerging from the voting-as-association cases provides the best fit for evaluating partisan gerrymandering claims.
The first is that the First Amendment right of association best captures the type of injury alleged, specifically the lasting harm to non-dominant political parties and their adherents arising from the dominant partys self-entrenchment. Expressive-association cases have long focused on such harms, not only to the non-dominant party but to our political system. By contrast, equal protection law doesnt accord any special status to political party affiliation. Unlike race or sex, party affiliation isnt a protected class under the equal protection clause.
The second advantage of relying on the established voting-as-association standard is that it focuses on effects rather than intent. Recall that the Anderson-Burdick standard requires courts to weigh the character and magnitude of the burden on voting and association against the states asserted interests. An intent to harm the non-dominant party may be relevant, but it isnt required. Thats a good thing, because intent is notoriously hard to prove or disprove, especially in redistricting cases. The Shaw v. Reno line of racial-gerrymandering cases exemplifies this difficulty. Under those cases, the pivotal question is whether race was the predominant factor in drawing a particular district. Twenty-four years after Shaw, the Supreme Court is still struggling to explain what this means. An effect-based test is preferable. Though Anderson-Burdick is hardly a bright-line rule, its balancing standard has proven manageable in other voting contexts and can be adapted to partisan-gerrymandering claims.
This brings me to a third advantage of relying on the voting-as-association cases to assess partisan gerrymandering claims: It provides a nuanced legal standard. The Anderson-Burdick balancing approach would allow lower courts to sort through the evidence, striking down the most egregious and unjustified partisan gerrymanders without categorically prohibiting any consideration of party affiliation when drawing districts. Of course, partisan-gerrymandering claims demand hard judgments. There are no bright lines here. But the legal standard that the Supreme Court has long used in voting-as-association cases provides the best fit for partisan-gerrymandering cases like Gill v. Whitford.
Posted in Gill v. Whitford, Summer symposium on Gill v. Whitford, Featured, Merits Cases
Recommended Citation: Daniel Tokaji, Symposium: A path through the thicket the First Amendment right of association, SCOTUSblog (Aug. 10, 2017, 2:12 PM), http://www.scotusblog.com/2017/08/symposium-path-thicket-first-amendment-right-association/
- Florida education news: First Amendment rights, flu shots and another superintendents struggles - Tampa Bay Times - November 16th, 2019
- First Amendment rights are not a one-way street - The Bozeman Daily Chronicle - November 16th, 2019
- First Amendment conference explored diminishing local news as a 'crisis of democracy' - The Daily Tar Heel - November 16th, 2019
- The 'Evil' First Amendment - The American Conservative - November 16th, 2019
- First Amendment website launching by end of November - University Star - November 16th, 2019
- LTTE: We all have business exercising our First Amendment rights - Rocky Mountain Collegian - November 16th, 2019
- "The Case Against Free Speech: The First Amendment, Fascism, And The Future Of Dissent" - WAMC - November 16th, 2019
- Trump Attack on Envoy During Testimony Raises Charges of Witness Intimidation - The New York Times - November 16th, 2019
- Facebook has a political fake news problem. Can we fix it without eroding the First Amendment? - NBC News - October 27th, 2019
- The Panhandling Problem: When public safety clashes with the 1st Amendment - WCJB - October 27th, 2019
- Can a black high school guard be fired for quoting the n-word? | TheHill - The Hill - October 27th, 2019
- The Case Against Free Speech: The First Amendment, Fascism, and the Future of Dissent - The Humanist - October 27th, 2019
- Liz Cheney Calls Out Dems' New House Bill Intended to 'Circumvent the First Amendment' - Townhall - October 27th, 2019
- Mitch McConnell slams election-security bill as 'transparent attack on the First Amendment' - The Washington TImes - October 27th, 2019
- Are Corporate Employees Protected by the First Amendment? - IPWatchdog.com - August 25th, 2017
- NAACP asks for meeting with Goodell over Colin Kaepernick's First Amendment rights - CBSSports.com - August 25th, 2017
- The ACLU was practicing a core First Amendment duty - Washington Post - August 25th, 2017
- Letter: The right has hijacked the First Amendment to preach hate ... - INFORUM - August 25th, 2017
- Lawyer who objected to mandatory bar's PAC contribution loses First Amendment appeal - ABA Journal - August 25th, 2017
- LA Times: Restrict the Second Amendment at First Amendment rallies - Hot Air - August 25th, 2017
- Is advocating suicide a crime under the First Amendment? - OUPblog (blog) - August 22nd, 2017
- Letter First Amendment is a fundamental building block of our society - Petoskey News-Review - August 22nd, 2017
- How far do the First Amendment's protections go when it comes to hate speech? - The San Diego Union-Tribune - August 20th, 2017
- First Amendment in Peril? - City Journal - August 20th, 2017
- Letter: Peculiar First Amendment interpretation - MetroWest Daily News - August 20th, 2017
- Police must act fast to protect First Amendment rights: Robert Shibley - USA TODAY - August 18th, 2017
- Podcast: Trump, Twitter and the First Amendment - Constitution Daily (blog) - August 18th, 2017
- How groups use 'First Amendment' permits for protests at National Parks - ABC10 - August 18th, 2017
- Last weekend's violent protests prompt First Amendment conversation - WBKO - August 18th, 2017
- Equality, Justice and the First Amendment - ACLU (blog) - August 18th, 2017
- Between the lines: Cops caught in the First Amendment war zone - Police News - August 18th, 2017
- Theres no hate speech exception to the First Amendment - The ... - August 16th, 2017
- First Amendment banned from DC Metro literally! - Washington Post - August 16th, 2017
- There's No 'Nazi' Exception to the First Amendment - National Review - August 16th, 2017
- FIRST AMENDMENT: How far does it go? - Evening News and Tribune - August 15th, 2017
- Why the First Amendment won't protect Charlottesville white supremacists from being fired - MarketWatch - August 15th, 2017
- The First Amendment on the Grounds in Charlottesville - Lawfare (blog) - August 15th, 2017
- Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog) - August 15th, 2017
- March on Google: Self-proclaimed 'First Amendment supporters' to ... - Pittsburgh Post-Gazette - August 15th, 2017
- Militiamen came to Charlottesville as neutral First Amendment protectors, commander says - Washington Post - August 14th, 2017
- Editorial, 8/13: Court strikes right balance on Westboro ruling - Lincoln Journal Star - August 14th, 2017
- Beyond the First Amendment - Washington Times - August 14th, 2017
- Liberals need to stop messing with the First Amendment - Washington Examiner - August 13th, 2017
- Jeffrey Lord: 'CNN caved on the First Amendment' when it fired him - Fox News - August 13th, 2017
- First Amendment lawsuits pile up against governors who block ... - WJLA - August 13th, 2017
- DC's transit agency rejected ads touting the First Amendment (really) - Ars Technica - August 11th, 2017
- ACLU Sues DC Metro After It Rejects Ad With Text Of 1st Amendment - NPR - August 11th, 2017
- Jeffrey Lord Speaks Out on Firing: 'CNN Caved on the First Amendment' - Mediaite - August 11th, 2017
- Newseum provides first amendment perspective - FederalNewsRadio.com - August 11th, 2017
- The First Amendment (Literally) Banned in DC - ACLU (blog) - August 10th, 2017
- Inside the First Amendment: When leaks dry up, we turn to FOIA ... - Meridian Star - August 10th, 2017
- The Fired Google Engineer, the First Amendment, and the Alt-Right - Xconomy - August 10th, 2017
- The First Amendment won't protect you from saying something your company doesn't like - Marketplace.org - August 9th, 2017
- The First Amendment: Freedom of speech in the workplace - WDAY - August 9th, 2017
- ACLU, Rutherford Institute say permit revocation violates First Amendment - The Charlottesville Newsplex - August 9th, 2017
- No shield needed: The First Amendment works just fine - The Union Leader - August 9th, 2017
- Liberal Students Unite Against First Amendment Rights of Conservatives on 'The Fosters' - NewsBusters (press release) (blog) - August 9th, 2017
- Bill Bennett on Leaker Journalists: First Amendment Not a License to ... - Fox News Insider - August 8th, 2017
- Country Singer Dustin Collins: 'Without the Second Amendment, There Is No First Amendment' (Exclusive) - Breitbart News - August 8th, 2017
- First Amendment: When leaks dry up, we turn to FOIA - hays Post - August 6th, 2017
- Letter: Anti-boycott law violates the First Amendment - Santa Cruz Sentinel - August 6th, 2017
- No Free Speech for You - Slate Magazine - August 5th, 2017
- EDITORIAL: First Amendment 2.0 - Loudoun Times-Mirror - August 5th, 2017
- In 'Direct Attack on the First Amendment,' Sessions Declares War on Leaks - Common Dreams - August 5th, 2017
- McGovern: Free speech may mean free pass for Michelle Carter - Boston Herald - August 4th, 2017
- How the First Amendment could save Don Jr. - The Hill (blog) - August 3rd, 2017
- Police confront 'First Amendment auditors' - Post Register - August 3rd, 2017
- Loudoun County resident's First Amendment case may benefit free-speech group's suit against Trump - Loudoun Times-Mirror - August 3rd, 2017
- Justice Souter, the First Amendment and the case of the synagogue standoff - Reuters - August 3rd, 2017
- RTDNA Joins Free Press Groups in Tracking First Amendment Abuse - Broadcasting & Cable - August 3rd, 2017
- Peter Berger: Students and First Amendment rights - vtdigger.org - August 3rd, 2017
- HiQ v. LinkedIn: Does First Amendment limit application of computer ... - Reuters - August 2nd, 2017
- SMU Becomes the Face of the Collegiate War On The First Amendment - The Hayride - August 2nd, 2017
- Promoting First Amendment censorship - Herald and News - August 2nd, 2017
- Court Rules Randall Violated First Amendment on Facebook - Loudoun Now - August 1st, 2017
- Free Speech & Republicans: First Amendment Trumps Punishing ... - National Review - August 1st, 2017
- The First Amendment: Free press, open meetings laws survive RI State House standoff - The Providence Journal - August 1st, 2017
- Unite the Right rally sparks First Amendment questions - The Daily Progress - August 1st, 2017
- Randy Krehbiel: Lankford says anti-LGBT organization is exercising First Amendment rights - Tulsa World (blog) - August 1st, 2017
- Unite the Right rally sparks First Amendment questions | Virginia ... - Roanoke Times - July 30th, 2017