In the wake of the Supreme Court’s recent decision in Rucho v Common Cause, ruling partisan gerrymandering claims nonjusticiable, redistricting commissions have never been more important. These commissions remain one of the few methods to remove the redistricting process from the hands of self-interested state legislatures. To accomplish this goal, many commissions limit the number of Republicans and Democrats who can serve on the commission and bar certain political actors— such as legislators and party leaders—from serving as commissioners. Although likely necessary to ensure redistricting commissions’ independence, these provisions burden the First Amendment associational rights of the excluded individuals and their political parties. Recent litigation in Michigan has challenged the state’s commission under this theory, setting the stage for other suits to follow.
These challenges pose several questions. Chief among them is the proper constitutional standard of review to apply when evaluating associational-rights claims against redistricting commissions. Associational-rights doctrine provides two conflicting options: strict scrutiny under the Supreme Court’s patronage doctrine, or a sliding scale under the Anderson-Burdick balancing test, a standard of review often used by the courts to evaluate challenges to election laws. Plaintiffs challenging their exclusion from these commissions will likely argue for strict scrutiny, while defenders of redistricting commissions will argue for the more deferential sliding-scale scrutiny. This Comment sets out to resolve this dilemma. I evaluate the arguments for applying both strict scrutiny and Anderson-Burdick to First Amendment challenges to redistricting commissions, concluding that—both for doctrinal and normative reasons—Anderson-Burdick should apply.
Maxfield, Andrew C.
"Litigating the Line Drawers: Why Courts Should Apply Anderson-Burdick to Redistricting Commissions,"
University of Chicago Law Review: Vol. 87:
7, Article 3.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol87/iss7/3