GERRYMANDERING, ENTRENCHMENT, AND “THE RIGHT TO ALTER OR ABOLISH”: DEFINING THE GUARANTEE CLAUSE AS A JUDICIALLY MANAGEABLE STANDARD

Authors

James R. Brakebill

Abstract

The Guarantee Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Based on its original public meaning, the guarantee of a republican government protects core political rights and contains readily ascertainable standards founded on majority rule and a prohibition of minority-party entrenchment. The Supreme Court failed to develop a standard for adjudicating partisan gerrymandering claims because the Equal Protection Clause and the “one person, one vote” framework are fundamentally incompatible with the harms associated with partisan gerrymandering. Such claims involve harms to majority rights that strike at the core of the republican guarantee. The use of advanced technology and household-level data means partisan gerrymanders will only become increasingly precise and durable, leading to more situations where parties earning a minority share of votes nonetheless hold a permanent majority of seats. Given these new challenges, the Supreme Court should revisit partisan gerrymandering under the majoritarian standards derived from the Guarantee Clause.

Recommended Citation

James R. Brakebill, GERRYMANDERING, ENTRENCHMENT, AND “THE RIGHT TO ALTER OR ABOLISH”: DEFINING THE GUARANTEE CLAUSE AS A JUDICIALLY MANAGEABLE STANDARD, 44 W. New Eng. L. Rev. 211 (2022), https://digitalcommons.law.wne.edu/lawreview/vol44/iss2/4