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PARTISAN GERRYMANDERING, THE FIRST AMENDMENT, AND THE POLITICAL OUTSIDER

Ross, Bertrall

Columbia law review, 2018-11, Vol.118 (7), p.2187-2218 [Periódico revisado por pares]

New York: Columbia Law School

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Título:
PARTISAN GERRYMANDERING, THE FIRST AMENDMENT, AND THE POLITICAL OUTSIDER
Autor: Ross, Bertrall
Assuntos: Apportionment ; Associations ; Campaign funds ; Candidates ; Competition ; Congressional reapportionment ; Constitutional amendments ; Court decisions and opinions ; Discrimination ; Districts ; Economic aspects ; Election districts ; ELECTIONS ; ELECTORAL BOUNDARIES ; Equal rights ; ESSAYS ; Evaluation ; First Amendment-US ; Freedom of association ; Freedoms ; Gerrymandering ; Holding ; Injuries ; Jurisdiction ; Law and legislation ; Legislators ; Legislatures ; MINORITIES ; Minority groups ; Mobilization ; Money ; Participation ; Partisanship ; Political campaigns ; Political participation ; POLITICAL PARTIES ; Politics ; POLITICS AND GOVERNMENT ; Power ; Redistricting ; Representation ; State court decisions ; State elections ; State legislatures ; Supporters ; Supreme Court decisions ; Supreme courts ; U.S. states ; Voter behavior ; Voters
É parte de: Columbia law review, 2018-11, Vol.118 (7), p.2187-2218
Notas: 2019-09-04T18:23:19+10:00
COLUMBIA LAW REVIEW, Vol. 118, No. 7, Nov 2018: 2187-2218
COLUMBIA LAW REVIEW, Vol. 118, No. 7, Nov 2018, 2187-2218
Informit, Melbourne (Vic)
Descrição: The most recent call for judicial intervention into state partisan gerrymandering practices ran aground on the shoals of standing doctrine in Gill v. Whitford. The First Amendment stood at the center of this latest gerrymandering challenge. Democratic voters claimed that the legislative districting scheme infringed on their associational rights by denying their party an opportunity for fair representation in the state legislature. For the Gill majority, the voters’ alleged representational harm was the sort of generalized grievance that failed to satisfy standing’s particularized injury requirement. Gill was the latest in a series of First Amendment freedom of association fights between partisan insiders—members or supporters of one of the two major political parties—that dates back to the 1970s. In these fights, the interests and needs of political outsiders—both nonvoters and those unaffiliated with the major political parties—have gone unheard and unaddressed. Political outsiders were not always marginalized in legal controversies involving the freedom of association. In fact, the Supreme Court originally constructed its First Amendment freedom of association doctrine in the 1950s to protect the political activity of dissident minority groups excluded from democratic politics. In this Essay, I argue that advocates should return to the Court’s initial freedom of association concern with ensuring the inclusion of political outsiders’ voices in the democratic space. Gerrymandering can inflict multiple harms, on both insiders and outsiders. While partisan gerrymandering may deprive one political party of holding power in a way that corresponds to its electoral support in the jurisdiction (a “representational harm”), it can also prevent individuals who do not belong to the majority party in the gerrymandered districts from being able to effectively participate in elections (a “participatory harm”). Both political outsiders and members of the minority party experience this latter harm. I argue that the participatory harm should drive future gerrymandering challenges. Such claims could empower political outsiders, advance minority parties’ interest in fair representation, and overcome the standing obstacles laid out by the Court in Gill.
Editor: New York: Columbia Law School
Idioma: Inglês

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PARTISAN GERRYMANDERING, THE FIRST AMENDMENT, AND THE POLITICAL OUTSIDER

Ross, Bertrall

New York: Columbia Law School

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