SCOTUSblog by Daniel Tokaji 8/10/2017
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, it’s 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 II’s 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 Amendment’s 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 group’s authority to diminish the voices of those who might challenge their grip on power.
More:
http://www.scotusblog.com/2017/08/symposium-path-thicket-first-amendment-right-association/#more-259237
