By Nicholas Stephanopoulos. Stephanopoulos is an attorney in the Washington, D.C. office of Jenner & Block, where he specializes in election law.
One of the many areas in which Elena Kagan has left next to no paper trail is election law. In particular, Kagan has expressed no views - at least, not in writing - on redistricting, gerrymandering, or the Voting Rights Act. These are all important topics. And they are especially vital now, as the Census nears completion and states prepare frantically to redraw all their districts in 2011. Election law blockbusters will very soon be on the Supreme Court's docket.
The Justice that Kagan has been nominated to replace, John Paul Stevens, has a unique perspective on redistricting. In his view - never endorsed by a majority of the Court - it is unconstitutional for a legislature to draw district lines with the primary purpose of benefiting (or harming) any political party or incumbent. As he put it in his 2004 dissent in Vieth v. Jubelirer, "purpose [is] the ultimate inquiry," and "when partisanship is the legislature's sole motivation," a district map must be struck down.
Justice Stevens has recognized that legislative purpose is often very difficult for courts to determine. In his 1983 concurrence in Karcher v. Daggett, he argued that courts should therefore focus not on the "subjective intent of local decisionmakers," but rather on "objective indicia of irregularity." These objective indicia include the "packing" or "cracking" of members of a political group, "dramatically irregular [district] shapes," and "[e]xtensive deviation from established political boundaries." If courts find enough of these clues, they can conclude that the legislature's motivation was overly partisan.
How does Justice Stevens' position on redistricting relate to Elena Kagan? The answer is that in one of her best-known academic articles, she embraced exactly the same approach - only with regard to free speech rather than electoral districts. In "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan contended that the underlying theme of the Supreme Court's First Amendment decisions is that actions taken due to "improper governmental motives" are unconstitutional. Perhaps the quintessential illicit motive is "restrict[ing] speech because the ideas espoused threaten officials' own self-interest - more particularly, their tenure in office."