To modern observers of American politics, our current hyperpartisan era appears historically extreme, even bizarrely partisan. The preceding Cold War era was far less partisan and ideologically polarized. Spanning roughly from World War II through the 1980s, it offers a hopeful model for a better, less partisan American politics. However, this historical baseline is badly misleading. Partisanship for most of American history was much more similar to today’s hyperpartisanship than the Cold War. And legislative redistricting, for most of American history, was just as intensely partisan as today’s hyperpartisan gerrymandering. But it was precisely during the Cold War era of partisan peace that courts inaugurated election law and began overseeing redistricting. The development of redistricting law, and indeed most of election law, therefore occurred during the unusual circumstance of historically low partisanship when partisan complications largely receded from judicial attention. As a result, our inherited law of redistricting developed by courts during the Cold War era is fundamentally mismatched to today’s hyperpartisanship and hyperpartisan gerrymandering. Moored to outdated Cold War assumptions, the Supreme Court badly underestimates hyperpartisanship and the effectiveness of hyperpartisan gerrymandering.
Michael S. Kang, Hyperpartisan Gerrymandering, 61 B.C.L. Rev. 1379 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss4/4