Schultz D. Encyclopedia of the United States Constitution

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(Resolution No. 13787) that stipulated, in part,

“NOW, THEREFORE, BE IT RESOLVED

by the Board of Airport Commissioners that the

Central Terminal Area at Los Angeles Interna-

tional Airport is not open for First Amendment

activities by any individual and/or entity.” Alan

Snyder, a minister of the Gospel for Jews for Jesus

(a nonproﬁ t organization), was caught distributing

free pamphlets at the Los Angeles International

Airport. An airport police ofﬁ cer approached Sny-

der and informed Snyder of Resolution No. 13787,

and then the police ofﬁ cer warned Snyder to leave

the airport or face legal action by the City of Los

Angeles. Snyder complied with the order and left.

Jews for Jesus and Snyder ﬁ led an action chal-

lenging the constitutional nature of Resolution

No. 13787. In a 9-0 decision, Justice Sandra Day

O’Connor ruled that the resolution was over-

broad—it went too far. The Court recognized that

the law addressed some legitimate concerns the

Board of Airport Commissioners may have had

for the safety of people using the airport—con-

gestion, disruption of services, and so forth. How-

ever, this does not mitigate the importance of and

the right to free expression. In other words, the

law was so broad it prohibited constitutionally pro-

tected activities.

For more information: Garner, Bryan A., ed.

Black’s Law Dictionary. 8th ed. St. Paul, Minn.:

Thomson/West, 2004.

—Dan Krejci

532 overbreadth doctrine

vi+904_EofUSConsti-v2.indd 532 3/20/09 2:18:00 PM

533

ﱶﱷﱸ

Paciﬁ c Gas & Electric Company v. State

Energy Resources Conservation and

Development Commission

461 U.S. 190

(1983)

In Paciﬁ c Gas & Electric Company v. State Energy

Resources Conservation and Development Com-

mission, the Supreme Court ruled that a state law

regulating the placement of nuclear power plants

did not conﬂ ict with the 1954 Atomic Energy Act

that had been passed by Congress. The impor-

tance of this case is that it dealt with the issue of

preemption.

Preemption is a legal concept that addresses the

issue of the scope of authority to legislate. Under

the United States Constitution’s supremacy

clause (Article VI), it, along with federal laws, is

the supreme law of the land, and any state or local

law in direct conﬂ ict with it is preempted, so long

as the issue is one that the federal government has

authority over. If federal legislation, especially

when it comes to the regulation of commerce, is

so pervasive as to leave states no room to act on

their own, then the issue is deemed preempted by

federal action.

In this case, the California Public Resources

Code Section 25524.1(b) and Section 25524.2

stipulated that the State Energy Resources Con-

servation and Development Commission must

determine whether a proposed nuclear power

plant will have “adequate capacity” for “interim

storage of the plant’s spent fuel at the time the

plant requires such storage.” According to Sec-

tion 25524.1(b), this decision must be made prior

to the building of the plant. Section 25524.2

imposed a moratorium on any certification of

new nuclear plants “until the State Commission

ﬁ nds that there has been developed, and that the

United States through its authorized agency has

approved, a demonstrated technology or means for

the permanent and terminal disposal of high-level

nuclear wastes.” Pacific Gas & Electric filed an

action in the federal district court, claiming that

these sections of the Public Resources Code were

invalid because the Atomic Energy Act preempted

these sections of the Public Resources Code. The

federal district court found that the two sections

were ripe for adjudication and found both sections

to be preempted by the Atomic Energy Act.

The case made its way to the United States

Court of Appeals for the Ninth Circuit. The court

of appeals agreed with the notion that Section

25524.2 was ripe for adjudication but not Sec-

tion 25524.1(b) “because it could not be known

whether the State Commission will ever find a

nuclear plant’s storage capacity to be inadequate.”

In addition, the court of appeals noted that Sec-

tion 25524.2

[W]as not designed to provide protection against

radiation hazards but was adopted because

uncertainties in the nuclear fuel cycle make

nuclear power an uneconomical and uncertain

source of energy, and therefore that the section

was not pre-empted because 271 and 274(k) of

the Atomic Energy Act constituted authorization

for States to regulate nuclear powerplants for

purposes other than protection against radiation

hazards.

Furthermore, the court stated that Section

25524.2 was not unconstitutional because it was

not an impediment to the “fulfillment of the

federal goal of encouraging the development of

atomic energy.”

vi+904_EofUSConsti-v2.indd 533 3/20/09 2:18:00 PM

The Supreme Court, in a 9-0 decision, afﬁ rmed

the court of appeals decision. It ruled that the

Atomic Energy Act, which dealt with the safety

of nuclear power plants, left room to states to

regulate the issue of the disposal of spent nuclear

waste. Therefore, the California law was not pre-

empted by the act.

For more information: Farber, Daniel A., Wil-

liam N. Eskridge Jr., and Philip P. Frickey. Cases

and Materials on Constitutional Law: Themes for

the Constitution’s Third Century. St. Paul, Minn.:

West Publishing Company, 1993.

—Dan Krejci

Palko v. State of Connecticut 302 U.S. 319

(1937)

In Palko v. State of Connecticut, the Supreme

Court case deﬁ ned what protections in the Bill

of Rights should be applied to limit the actions

of individual states.

Frank Palko was a poor Connecticut factory

worker who burglarized a store one night. Fleeing

on foot with a stolen radio, Palko was interrupted

by two police ofﬁ cers who tried to stop him, but

he shot one of them to death. He was captured a

little over a month later.

Palko was indicted in Fairfield County by

the State of Connecticut for murder in the ﬁ rst

degree. He was tried before a jury that had only

two legal options. Either it could have acquitted

Palko, or it had to sentence him to death. How-

ever, the jury found Palko guilty of murder not in

the ﬁ rst degree but guilty of murder in the second

degree. The sentence for second degree murder

was life in prison.

With the permission of the trial judge, which

was required by Connecticut law, the state prose-

cutor appealed the conviction on the grounds that

the jury had erred by returning a verdict of mur-

der in the second degree rather than acquittal or

murder in the ﬁ rst degree. The Supreme Court of

Errors for Connecticut ordered a new trial (State

v. Palko, 121 Conn. 669, 186 Atl. 657) on grounds

there had been errors of law to the prejudice of

the state in the lower court, including the exclu-

sion of Palko’s confession and ﬂ awed instructions

to the jury, as well as the improper conviction.

At Palko’s second trial, the jury returned a ver-

dict of ﬁ rst degree murder. Palko was then sen-

tenced to death. Palko appealed the legality of his

second trial to the Connecticut Court of Errors

(122 Conn. 529, 191 Atl. 320), which ruled against

him. He then appealed to the United States

Supreme Court under the due process clause

of the Fourteenth Amendment, claiming that

the Fifth Amendment prohibition against double

jeopardy had been violated.

The case was argued on November 12, 1937,

and decided December 6, 1937. The 8-1 majority

opinion, written by Justice Benjamin N. Cardozo,

was probably his most famous decision. He con-

cluded that the question of double jeopardy was

not the controlling issue. The state of Connecti-

cut, in seeking a trial without prejudicial errors,

was not engaged in double jeopardy.

While the Court was unwilling to apply the

Fifth Amendment prohibition of double jeop-

ardy to Palko’s case, Cardozo announced a test

for determining which rights were to be applied

to the states or incorporated. It was to be those

“so rooted in the traditions and conscience of our

people as to be ranked as fundamental.”

Justice Pierce Butler dissented. Palko was exe-

cuted in the electric chair at the Connecticut State

Prison at Wethersﬁ eld on April 12, 1938.

For more information: Cortner, Richard C. The

Supreme Court and the Second Bill of Rights: The

Fourteenth Amendment and the Nationalization

of Civil Liberties. Madison: University of Wis-

consin Press, 1981; Harrison, Maureen, and Steve

Gilbert. Criminal Justice Decisions of the United

States Supreme Court. Carlsbad, Calif.: Excellent

Books, 2003.

—Andrew J. Waskey

Panama Reﬁ ning Co. v. Ryan 293 U.S. 388

(1935)

In Panama Refining Co. v. Ryan, the Supreme

Court held that Section 9(c) of the National

Industrial Recovery Act of 1933 was an uncon-

534 Palko v. State of Connecticut

vi+904_EofUSConsti-v2.indd 534 3/20/09 2:18:00 PM

stitutional delegation of authority from Congress

to the president. The importance of the Panama

Reﬁ ning ruling, coupled with the Court’s decision

in S

CHECHTER POULTRY V. UNITED STATES, 295 U.S.

495 (1935), handed down the same year, was that

the Court emphasized Congress could not dele-

gate authority to the executive branch unless the

legislative branch issued standards to guide the

exercise of this authority.

The National Industrial Recovery Act was

one of the ﬁ rst pieces of New Deal legislation,

proposed by the Roosevelt administration and

approved by Congress, to deal with the depres-

sion affecting the United States in the early 1930s.

At issue in this case was Section 9(c), which gave

the president the authority to prohibit the trans-

portation of petroleum in excess of the amount

permitted by various state laws. In short, this sec-

tion of the act would help control the supply of

petroleum, in hope that by doing so prices would

stabilize. Panama Reﬁ ning Company, the owner

of an oil reﬁ ning plant in Texas, challenged the

law on the grounds that it was an unconstitutional

delegation of legislative authority to the presi-

dent and that it exceeded Congress’s commerce

clause authority.

The Court, in an 8-1 vote, held that Section 9(c)

was an unconstitutional delegation of legislative

authority. Presuming for the purposes of this case

that Congress had the authority under the com-

merce clause to pass such a law, the Court looked

to the law to determine if Congress had declared

a policy, and if so, whether Congress had set up

a standard to guide executive branch action or

required any ﬁ nding by the president before exer-

cising the authority found in the law. In the end,

the Court concluded that Congress had left to the

president’s discretion as to when the industry vio-

lated state regulations, imposing upon the execu-

tive no standard to guide his actions in enforcing

the law nor requiring the president to ﬁ nd certain

facts in evidence before acting.

The larger issue in this case was what the Con-

stitution required of the political branches as the

administrative state grew dramatically in the 1930s

and 1940s. While the Court acknowledged that the

Constitution afforded Congress the ability to pass

legislation that adapted to complex situations that

the legislative branch could not foresee, the Court

also stressed that the Constitution firmly rests

legislative authority in Congress. For Congress to

delegate authority to the executive branch without

standards and guidance would violate the separa-

tion of powers written into the Constitution.

In a lone dissenting opinion, Justice Cardozo

claimed that the Court misread the law. In partic-

ular, Cardozo stated that Congress made clear the

intent of the policy, and it did not give the presi-

dent limitless discretion, as he could not act unless

the industry violated established state regulations.

For Cardozo, the Court should have looked at the

law in its entirety, not just Section 9(c), to deter-

mine whether Congress clearly pronounced a pol-

icy to guide the president.

As a number of scholars have pointed out, the

Court’s rulings in Panama Reﬁ ning and Schechter

Poultry were the last two times that the Court lim-

ited the delegation of authority from Congress to

the executive branch. The nondelegation doctrine,

as these rulings came to be known, gave way to

the Court’s typically ratifying broad congressional

delegations of authority to the executive branch

throughout the 20th century. In a number of con-

texts, whether foreign affairs (see United States v.

Curtiss-Wright, 299 U.S. 304 [1936]) or the U.S.

Sentencing Commission (see MISTRETTA V. UNITED

STATES, 109 S.Ct. 647 [1989]), the Court has held

the non-delegation doctrine to be dead.

For more information: Warren, Kenneth F.

Administrative Law in the Political System. 3d

ed. Upper Saddle River, N.J.: Prentice Hall, 1997.

—John M. Aughenbaugh

parades

Parades raise several constitutional concerns

under the First Amendment right to freedom

of association.

First, there is the place the parade takes place.

HAGUE V. COMMITTEE FOR INDUSTRIAL ORGANIZATIONS,

307 U.S. 496 (1939), established that streets are

public forums, which have traditionally allowed

a broad range of debate—including parades. In a

parades 535

vi+904_EofUSConsti-v2.indd 535 3/20/09 2:18:01 PM

public forum, the state cannot discriminate against

speech without a compelling interest. For most of

the 20th century, this interest was hard to ﬁ nd. For

example, in Collin v. Smith, 578 F.2d 1197 (7th

Cir. 1978), the case that spawned the Skokie affair,

the Seventh Circuit held that concerns about hate

speech were not sufﬁ cient to uphold a ban against

a proposed Nazi march through a neighborhood of

Holocaust survivors.

However, courts tend to be more lenient

toward the state when the state’s regulations do

not appear on their face to discriminate against a

particular type of speech. In resolving these cases,

courts apply the “time, place, and manner” test,

which asks (1) whether the restrictions are content

neutral, (2) whether they are narrowly tailored to

meet the state’s concerns, and (3) whether there

are alternative means of communication.

Applying these tests, courts have held that

the state can require the group to seek a permit,

provided that the process is timely, does not vest

too much authority in the hands of state ofﬁ cials,

and allows for judicial review. Likewise, the

state can limit the number of people who can

attend the parade, change the parade route, or

restrict the activities that parade goers can under-

take. Finally, most courts that have considered

the issue have also upheld laws banning masked

demonstrations.

Disputes sometimes arise over whether state

regulations are in fact neutral. In Clark v. Com-

munity for Creative Non Violence, 468 U.S. 288

(1984), the Court upheld a ban on sleeping during

an overnight demonstration as a valid, content-

neutral restriction on speech. In a sharp dissent,

however, Justice Thurgood Marshall argued that

given the context—the demonstration was an

encampment on the Capitol Mall intended to call

attention to the plight of the homeless—the ban

on sleeping discriminated against the protesters.

In the post 9/11 era, courts have tended to defer

to state restrictions on parades—especially when

national security can be invoked. For example, in

United for Peace & Justice v. City of New York,

243 F. Supp. 2d 19 (S.D.N.Y. 2003), a lower court,

citing fears of terrorism, upheld New York City’s

refusal to allow an antiwar group to stage a parade

in front of the United Nations to protest the

impending invasion of Iraq. Courts also approved

the use of “protest pens” and “free speech” zones

at the 2004 Democratic and Republican national

conventions.

A separate issue involves whether parade orga-

nizers can, consistent with the antidiscrimina-

tion laws, exclude parade goers. This issue has

arisen repeatedly where gay and lesbian groups

have sought to march openly in St. Patrick’s Day

parades. In H

URLEY V. IRISH-AMERICAN GAY, LES-

BIAN AND BISEXUAL GROUP OF BOSTON, INC., 515 U.S.

557 (1995), the Supreme Court held that parades

were per se an expressive activity, and, therefore,

parade organizers were free to exclude messages

they opposed.

For more information: Duncan, Dwight G.

“Parading the First Amendment through the

Streets of Boston.” New England Law Review

30 (1996): 664–694; Nanes, Susan Rachel.

“Comment: ‘The Constitutional Infringement

Zone’: Protest Pens and Demonstration Zones

at the 2004 National Conventions.” Louisiana

Law Review 66 (2005): 189–232; Suplina, Nick.

“Note: Crowd Control: The Troubling Mix of First

Amendment Law, Political Demonstrations, and

Terrorism.” George Washington Law Review 73

(2005): 395–428.

—Robert A. Kahn

parental notiﬁ cation and abortion

Parental notiﬁ cation and abortion refer to laws

passed by states requiring women under the age of

18 to obtain parental consent before terminating

a pregnancy. These laws raise important questions

about the right to privacy of minors as well as the

rights of parents.

Shortly after 1973, when the Supreme Court

declared that the right to privacy included the

right to abortion, states began to impose restric-

tions on a minor’s access to abortion, either by

requiring her to notify her parents or by requir-

ing their consent. Advocates of such laws say that

parents have a right to be involved in her decision,

and that their involvement would reduce teenage

536 parental notiﬁ cation and abortion

vi+904_EofUSConsti-v2.indd 536 3/20/09 2:18:01 PM

pregnancies. Opponents say that pregnant teenag-

ers usually inform their parents anyway, and par-

ents do not provide support and comfort in every

case. Beginning in 1976, the Court decided the

parameters of the minor’s right to privacy, weigh-

ing it against the parents’ interest in their child’s

welfare and the state’s interest in the child’s health

and in the integrity of the family.

In H.L. v. Matheson, 450 U.S. 398 (1981), the

ﬁ rst case on the constitutionality of a notice law,

the Court upheld a Utah statute requiring a physi-

cian to notify the parents of a minor before per-

forming an abortion. The law was challenged by

a 15-year-old pregnant and unmarried teenager

living at home who wanted to obtain an abortion

without notifying her parents. The Court held that

a state may require a physician to notify the par-

ents of an immature and dependent minor such

as this. In a 6-3 opinion, it found that the law fos-

tered the state’s interest in promoting the family

and protected the teenager by allowing her par-

ents to apprise her physician about her medical

and psychological history.

In June 1990, the Court addressed the issue of

parental notice in two cases arising out of Min-

nesota and Ohio. Subdivision Two of the Minne-

sota law, with few exceptions, required a doctor

to notify both parents. Another section, Subdivi-

sion Six, specified that a judicial bypass proce-

dure would take effect if Subdivision Two were

declared unconstitutional by a court. The bypass

would allow the minor to try to convince a judge

that she was mature enough to decide for herself

about having an abortion or that it was not in her

best interests to notify her parents. In H

ODGSON

V. MINNESOTA, 497 U.S. 417 (1990), a majority of

the Court found Subdivision Two unconstitu-

tional because it had no reasonable relationship

to a legitimate state interest. A different ﬁ ve-jus-

tice majority sustained Subdivision Six, thereby

upholding the entire law.

Speaking for the Court on Subdivision Two,

Justice John Paul Stevens stressed that none

of the Court’s earlier rulings addressed the con-

stitutionality of a notice or consent requirement

that applied to both parents. He denied that the

two-parent notice furthered the state’s interests in

the teenager or the family. The state could pro-

tect the minor by requiring one parent to be noti-

ﬁ ed and allowing that parent to decide whether to

notify the other. He rejected the state’s argument

that it was best for the family if both parents were

involved in a teenager’s abortion decision, saying

that the state cannot try to mold a family into its

idealized image.

With respect to Subdivision Six, Stevens

explained how the Minnesota judicial bypass pro-

cedure differed from those upheld in previous

cases. A bypass is intended to allow exceptions

from a reasonable general rule and thereby pre-

serve its constitutionality. This bypass requires

the minor to ask the court to excuse her from

complying with a rule that does not further the

state interest. In her concurring opinion, Justice

Sandra Day O’Connor agreed that Subdivision

Two was unconstitutional. But she believed that

Subdivision Six was constitutional, because the

bypass procedure allowed the minor to avoid noti-

fying both her parents.

Similarly, in Ohio v. Akron Center for Repro-

ductive Health, 497 U.S. 502 (1990), the Court

upheld an Ohio law with a one-parent notice

requirement and a bypass procedure. The law

speciﬁ ed that, in most cases, before performing

an abortion, the physician was required to give 24

hours notice to a parent; the law also allowed the

teenager to show that she was sufﬁ ciently mature

and could make the decision without notifying her

parent or simply that notiﬁ cation was not in her

best interests. The lower courts declared the law

unconstitutional, but the majority declared the

Ohio law constitutional because it did not place

an undue burden on the young woman seeking an

abortion.

Since Hodgson, the Court has ruled on chal-

lenges to parental notiﬁ cation laws in Montana,

Virginia, and Arizona, among others and, in most

cases, has upheld them. In 2006, the Senate and

House of Representatives each approved leg-

islation that would make it illegal to transport a

minor child across a state line to obtain an abor-

tion that would avoid complying with parental

involvement laws in the minor’s home state. No

ﬁ nal vote was taken after the bill came out of the

parental notiﬁ cation and abortion 537

vi+904_EofUSConsti-v2.indd 537 3/20/09 2:18:01 PM

conference committee before the 109th Congress

adjourned.

For more information: Friedman, Jennifer C.

“Parental Notice in State Abortion Statutes: Fill-

ing the Gap in Constitutional Jurisprudence.”

Columbia Human Rights Law Review 29 (1998):

437–464; Liebman, Joanna S. “The Underage, the

‘Unborn,’ and the Unconstitutional: An Analysis

of the Child Custody Protection Act.” Columbia

Journal of Gender & Law 11 (2002): 407–425;

Mezey, Susan Gluck. Elusive Equality: Women’s

Rights, Public Policy, and the Law. Boulder, Colo.:

Lynne Rienner Publishers, 2003.

—Susan Gluck Mezey

Parker v. Brown 317 U.S. 341 (1943)

In Parker v. Brown, the Supreme Court recog-

nized an important exception to federal antitrust

law. The Court unanimously upheld a state pro-

gram intended to restrict competition among

California raisin producers in an opinion by Chief

Justice Harlan Stone. Although the state policy

was attacked on three separate grounds, the pri-

mary impact of the case has been within antitrust

law, through the development of “state action” or

“Parker immunity.”

Brown, a producer and packer of raisins, was

subject to state sanctions for failing to participate

in a price maintenance program that, he claimed,

would prevent him from marketing existing crops

and fulﬁ lling previously entered sales contracts.

He challenged the enforcement of the State Agri-

cultural Prorate Advisory Commission’s program

as a violation of the Sherman Act, as preempted by

a federal statute regulating agricultural market-

ing, and as inconsistent with the dormant com-

merce clause, which prohibits the states from

imposing unreasonable restraints on interstate

commerce. A three-judge district court ruled

for Brown on the dormant commerce clause, and

the case was accepted by the Court on that basis,

but after other issues arose during oral argument,

the case was scheduled for additional briefs and

reargument. The justices rejected all proposed

challenges, however, concluding that California’s

prorate program was not subject to the Sherman

Act because its operation is directed by the state,

acting as a sovereign government, and the Sher-

man Act does not indicate that Congress intended

to restrain such activities.

The Sherman Act prohibits the restraint of trade

by contract, conspiracy, or the act of monopoliza-

tion, and Chief Justice Stone’s opinion grants that

the prorate program, which combines raisin pro-

duction in California for the purposes of controlling

output and price, would be illegal if it were per-

formed by private actors. The majority opinion also

granted that Congress could forbid such a program

by legislation if it chose. However, the Court’s inter-

pretation of the Sherman Act concluded that Con-

gress did not intend to displace the states’ power to

enact programs like the one at issue in the case. The

chief justice also made reference to the substantial

issues of federalism raised by any subtraction of

state authority by congressional action, and this line

of support has contributed more to the subsequent

development of Parker doctrine.

The California proration program also survived

the other two challenges to its legal enforcement.

The Court concluded that the state program did

not conﬂ ict with the federal Agricultural Market-

ing Agreement Act of 1937 (7 U.S.C. 601–674),

nor was it preempted by the dormant commerce

clause, as the district court had declared.

Although Parker v. Brown was litigated primar-

ily as a preemption case and initially accepted by

the Court for review on that question, its primary

impact has been as the foundation for “state action

immunity” from antitrust enforcement, which

took its modern form in California Retail Liquor

Dealers Association v. Midcal Aluminum, Inc.,

445 U.S. 97 (1980). This doctrine has been sub-

ject to considerable criticism, within and outside

the judiciary, and the justices have struggled for

some time to articulate the distinction between

regulatory or regulated activity conducted by or

under color of state authority immune from anti-

trust law and illegal market behavior that states

cannot immunize.

For more information: Patrizia, Charles A.

“Parker v. Brown: A Preemption Analysis.” Yale

538 Parker v. Brown

vi+904_EofUSConsti-v2.indd 538 3/20/09 2:18:02 PM

Law Journal 84 (1975): 1,164–1,177; Philips, Dirk

C. “Putting Parker v. Brown and its Progeny

in Perspective: An Assessment of the Supreme

Court’s Role in the Development of Antitrust

Federalism.” Journal of Law and Politics 16

(2000): 193–229; Squire, Richard. “Antitrust and

the Supremacy Clause.” Stanford Law Review 59

(2006): 77–130.

—Scott E. Graves

partisan gerrymandering

Partisan gerrymandering refers to the drawing of

political representation district lines for partisan

purposes or advantage. While the Supreme Court

has stated that partisan gerrymandering is a poten-

tial violation of the Fourteenth Amendment’s

equal protection clause, there is significant

dispute and disagreement over whether this is the

type of issue the judiciary should hear.

The role of the Supreme Court and lower fed-

eral courts in resolving redistricting issues is a

continuing source of controversy. In Colgrove v.

Green, 328 U.S. 549 (1946), the Supreme Court

was asked to hear a case alleging the malappor-

tionment or drawing of district lines to beneﬁ t one

party of a community at the expense of another.

Justice Felix Frankfurter, writing for the Court,

ruled that questions about reapportionment were

political questions that the judiciary should not

hear. Instead, they should be resolved by the

political branches, such as by Congress. How-

ever, in BAKER V. CARR, 369 U.S. 186 (1962), the

Court reversed itself and ruled that reapportion-

ment questions were justiciable. By justiciable, the

Court meant that the federal judiciary would no

longer consider them to be political questions, but,

instead, would be willing to hear them.

As a result of Baker, in cases such as REYNOLDS V.

SIMS, 377 U.S. 533 (1963), the Supreme Court was

increasingly drawn into redistricting issues, ruling

that the apportioning of district lines could violate

the one person, one vote standard. This would

occur if some districts contained more individuals

than another, such that the votes of some would

have more weight than others. If this dilution of

voting strength occurred, then it would constitute

a violation of the equal protection clause of the

Fourteenth Amendment.

While the Supreme Court had ruled, in cases

such as Reynolds and in GOMILLION V. LIGHTFOOT,

364 U.S. 339 (1960), that the drawing of district

lines contrary to the one person, one vote standard,

or for racial purposes, was unconstitutional, these

cases did not address whether it was permissible

to consider partisan motives when undertaking

apportionment. Some allege that it is a common

practice for political parties in control to attempt

to draw district lines to their advantage, so that it

will be easier for them to get reelected and stay

in ofﬁ ce. Beginning in Davis v. Bandamer, 478

U.S. 109 (1986), the Supreme Court attempted to

address this issue to decide if partisan gerryman-

dering or redistricting was also a constitutional

violation.

In Davis v. Bandamer, at issue was a suit

brought by Indiana Democrats, contesting the

constitutionality of a 1981 state redistricting plan.

The specific allegation was that the plan drew

legislative lines and seats in such a way as to dis-

advantage Democrats. It did so by dividing up cit-

ies such as South Bend in arguably unusual ways.

The Democrats ﬁ led suit, contending that these

districts violated their rights as Democrats under

the Fourteenth Amendment equal protection

clause. The district court had ruled in favor of the

Democrats, in part because of evidence and tes-

timony suggesting that the Republican Party had

in fact drawn the lines in its favor. When the case

reached the Supreme Court, a central issue was

whether this was a justiciable controversy under

the equal protection clause. The Court held that

it was.

The Court articulated several stipulations that

had to be met to sustain a political gerrymander-

ing claim. First, there had to be proof of inten-

tional discrimination against the one party,

here, the Democrats. Second, “a group’s electoral

power is not unconstitutionally diminished by

the simple fact of an apportionment scheme that

makes winning elections more difﬁ cult. A failure

of proportional representation alone does not con-

stitute impermissible discrimination under the

equal protection clause.” Instead, the Court stated

partisan gerrymandering 539

vi+904_EofUSConsti-v2.indd 539 3/20/09 2:18:02 PM

that the political process must frustrate political

activity in a systematic fashion that frustrates the

will of the voters. Finally, the Court contended

that showing frustration or dilution of political

influence in one election was also insufficient.

Instead, it would need to be shown that it took

place over several elections.

While the Bandamer decision ruled that par-

tisan gerrymandering was justiciable and laid

out a test to determine if an apportionment was

a constitutional violation, no court had held in

favor of such claims. Instead, some contended

that Bandamer was wrongly decided and that

partisan gerrymanders should not be heard by the

courts. There were calls to revisit the decision in

Bandamer. The Supreme Court did that, ﬁ rst in

Vieth v. Jubelirer, 541 U.S. 267 (2004), and again

in L

EAGUE OF UNITED LATIN AMERICAN CITIZENS V.

PERRY, 126 S.Ct. 2594 (2006).

In Vieth, at issue was the constitutionality of a

Pennsylvania districting plan that drew the seats

for its congressional delegation after the 2000 cen-

sus. Prior to the census, the state had 21 represen-

tatives, but after 2000 it was entitled to only 19

seats. Republicans controlled both houses of the

Pennsylvania legislature as well as the governor’s

ofﬁ ce. State Democrats contended that the dis-

trict lines drawn violated Article I, Sections 2 and

4, and the equal protection clause, thereby consti-

tuting both a violation of the one person, one vote

standard and, more importantly here, a partisan

gerrymander. The district court dismissed the

partisan or political gerrymandering claim (with

some of the other issues addressed or resolved in

other litigation in the case), and it was appealed to

the Supreme Court.

In a split decision, the Supreme Court ruled

several things. First, a four-person plurality opin-

ion written by Justice Antonin Gregory Scalia

reviewed the history of partisan gerrymandering

in the United States, concluding that such a prac-

tice went back to the early days of the republic.

Given this history, there had also been numerous

efforts to address it, and they all had failed. Scalia

next argued that the standards for addressing par-

tisan gerrymandering in Bandamer had proved

unworkable. He criticized the three-prong test

enunciated there, contending that it was unman-

ageable and arbitrary and that it would fall into

a simple proportionality test between voting per-

centages and seats won by a particular party. But

more importantly, based on the employment of

the test in the lower courts, the Bandamer opin-

ion provided no guidance to the Court.

Overall, a four-justice plurality ruled that

partisan gerrymanders were not justiciable, and

therefore, in the case before them, the claims

of the Democrats should be rejected. However,

ﬁ ve justices agreed that the Democrats had not

proved that a partisan gerrymander existed in the

case before them, and that this type of issue was

not justiciable. Justice Anthony M. Kennedy

concurred that there was no partisan gerryman-

der here, but he refused to go along with overrul-

ing Bandamer. He agreed that neutral rules for

resolving and adjudicating partisan gerrymanders

were needed, but he did not agree with the major-

ity that it would never be possible to ﬁ nd them.

This thus created a ﬁ ve-justice majority to reject

the plaintiffs’ claims. However, five justices in

several dissents, including Kennedy, refused to

overrule Bandamer, continuing to make partisan

gerrymanders justiciable issues. What the dis-

senters could not agree on were what constituted

acceptable or manageable standards for adjudicat-

ing a partisan gerrymander dispute. The hope was

that League of United Latin American Citizens v.

Perry (LULAC) would do that, but it did not.

LULAC arose from a high-profile partisan

battle in the Texas legislature that involved U.S.

Representative Tom DeLay and a battle for the

state legislature and its congressional delegation.

The 2000 census indicated that the state of Texas

should receive two additional seats in the House

of Representatives beyond the current 30

that it had. At the time of redistricting the Texas

Republican Party controlled the state senate and

governor’s ofﬁ ce, but the Democrats controlled

the state house of representatives. With the leg-

islature unable to agree to adopt a redistricting

scheme, litigation eventually led to the creation

of a court-ordered one. This plan produced a 17

to 15 Democratic majority in the Texas congres-

sional delegation. But in 2003, state elections gave

540 partisan gerrymandering

vi+904_EofUSConsti-v2.indd 540 3/20/09 2:18:02 PM

Republicans control of both houses of the state

legislature as well as control of the governor’s

ofﬁ ce. With the encouragement of Tom DeLay,

and after a long struggle, including Democrats in

the legislature hiding out in Oklahoma to avoid a

special session, the state passed a new redistrict-

ing plan in 2003.

In 2004, elections using this new plan gave

Republicans 58 percent of the statewide vote,

compared to 41 percent for Democrats. Republi-

cans also captured 21 of the congressional seats to

the 11 won by the Democrats. The 2003 plan was

challenged in court, claiming, inter alia, that it

was a partisan gerrymander and that the state and

federal constitutions barred a second redistricting

scheme following a decennial census. Judgment

was for the appellees, but in light of the Vieth v.

Jubelirer decision, the Supreme Court vacated

and remanded it to reconsider. The district court

then solely considered the political gerrymander-

ing claim and again ruled in favor of the appel-

lees. Before the Supreme Court were arguments

that the 2003 redistricting schema was a partisan

or political gerrymander, that it violated the Vot-

ing Rights Act (VRA), and that the mid-decade

redistricting violated the one person, one vote

requirement under the Fourteenth Amendment.

While the Court did ﬁ nd that one of the districts

did violate the VRA, it rejected claims that the

mid-decade redistricting violated the Consti-

tution, and it also ruled that the appellants had

failed to state a claim upon which relief could be

granted for the political gerrymander.

Justice Kennedy, writing for yet another divided

Court when it came to the partisan gerrymander

claim, specifically noted that the theory of the

plaintiffs was that mid-decade redistricting, when

solely motivated by partisan objectives, violated

the Fourteenth Amendment. A majority of the

Court rejected this claim, stating that not every

line drawn was done based on partisan objectives.

Yet, even if mixed motives were not present in this

case, Kennedy asserted that one challenging a ger-

rymander as partisan would have to show how it

burdened, according to a reliable standard, their

representational rights. The simple fact that a mid-

decade redistricting schema took place is rejected

as a per se standard to show burden. Similarly,

the claim that a mid-decade redistricting violates

the one person, one vote requirement if done for

partisan purposes is also rejected. While Kennedy

clearly stated that this decision did not revisit the

justiciability of partisan gerrymandering, it

rejected the tests offered in this case to deﬁ ne a

standard for resolving disputes averring this as a

claim.

As with Vieth, LULAC produced a divided

Court that failed to mend the split over partisan

gerrymandering. Kennedy wrote the opinion for

the Court, with various justices concurring with

parts of the decision. The splits occurred over

whether partisan gerrymanders are justiciable

(ﬁ ve justices agreed that they were), whether there

was a VRA violation in the drawing of district 23

(ﬁ ve agreed there was), and over what constituted

manageable standards for resolving a political

gerrymander. Kennedy rejected the plaintiff’s

proposed standard, four justices rejected all stan-

dards, and four other justices splintered over vari-

ous possible standards.

LULAC left the Court no better off than before,

despite a change in two justices since the Vieth

decision and with four justices saying political ger-

rymanders are nonjusticiable, four saying they are

and proposing different standards, and Kennedy

in the middle saying the issue is justiciable but still

in search of a standard.

Overall, in theory, partisan gerrymanders are

justiciable issues that can be heard by the courts.

However, lacking a clear set of standards to deter-

mine what constitutes a partisan gerrymander, it

is unclear how these issues will be resolved in the

near future.

For more information: Schultz, David. “The

Party’s Over: Partisan Gerrymandering and the

First Amendment.” Capital University Law

Review 36 (2007): 1–52.

—David Schultz

patents

A patent is the grant by a federal government to an

inventor of the exclusive property right to make,

patents 541

vi+904_EofUSConsti-v2.indd 541 3/20/09 2:18:02 PM