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118 Colum. L. Rev. Online 153 (2017-2018)
Back to the Future: Recentering the Political Outsider: Response to Professor Bertrall Ross

handle is hein.journals/sidbarc118 and id is 154 raw text is: COLUMBIA LAW REVIEW ONLINE VOL. 118 NOVEMBER 30, 2018 PAGES 153-78 BACK TO THE FUTURE: RECENTERING THE POLITICAL OUTSIDER RESPONSE TO PROFESSOR BERTRALL ROSS Cheryl L Harris* INTRODUCTION Partisan gerrymandering has a lengthy history, as political parties in power have repeatedly sought to construct electoral districts in ways that disfavor the minority party and ensure majority-party dominance. While more recently it appears that Republicans have reaped more of the bene- fits of partisan gerrymandering,' over the past fifty years, each major politi- cal party, Republican and Democratic, has accused the other of reap- portioning districts to stack the deck in favor of the party in power. Legal challenges to these practices have asserted that this use of political author- ity violates the minority party's First Amendment associational rights and Fourteenth Amendment right to equal protection. The stakes in this dispute have risen ever higher, in part because, as commentators have noted, technology has made it possible to identify voter affiliation with * Rosalinde and Arthur Gilbert Professor in Civil Rights and Civil Liberties, UCLA School of Law. Thanks to the Knight First Amendment Institute and to all the participants in the Symposium for a remarkable set of conversations and discussions. I especially extend thanks to Bertrall Ross for his essay and for the opportunity to offer comments. I also thank the editors of the Columbia Law Review for their assistance and ideas. Thanks also for the excellent research assistance from Julia Jensen and for the support of the UCLA Law Library staff. 1. See Laura Royden & Michael Li, Brennan Ctr. forJustice, Extreme Maps 1 (2017), https://www.brennancenter.org/sites/default/files/publications/Extreme%20Maps%205.16 O.pdf [https://perma.cc/R7CJ-BRKN] (noting that in the twenty-six states that account for eighty-five percent of congressional districts, Republicans are favored by the district maps, deriving a net gain from partisan gerrymandering of about sixteen to seventeen seats); Amber Phillips, These 3 Maps Show Just How Dominant Republicans Are in America After Tuesday, Wash. Post (Nov. 12, 2016), https://www.washingtonpost.com/news/the-fix/ wp/2016/11/12/these-3-maps-show-just-how-dominant-republicans-are-in-america-after-tuesday [https://perma.cc/CC5E-A7US] (explaining that, following the 2016 elections, Republicans enjoyed a near-record level of political power nationally in the modern era in part because Republicans got to draw the electoral maps for state and congressional seats in about three times as many states as Democrats did). 2. Justice Stevens has been particularly vocal about this issue, pointing out that drawing district lines to benefit one party violates citizens' rights to equal protection. See Vieth v.Jubelirer, 541 U.S. 267, 333 (2004) (Stevens,J., dissenting) (contending that the Equal Protection Clause implements a duty to govern impartially that requires, at the very least, that every decision by the sovereign serve some nonpartisan public purpose). 153