“A Cloud of Constitutional Illegitimacy”: Prospectivity and the De Facto Doctrine in the GerrymanderingContext

Abstract

Courts have traditionally shielded the acts of malapportioned or otherwise illegally constituted legislatures from dissolution by employing the “de facto doctrine,” an ancient common law policy tool with medieval roots. In its most basic form, the de facto doctrine seeks to safeguard the acts of unlawful but well-intentioned public officials from collateral attack out of concern for third-party reliance and a bald recognition of necessity. However, the doctrine as traditionally articulated only serves to validate past official acts; once the official in question has lost the “color of authority,” the doctrine no longer affords his actions de facto validity. Although this has not prevented courts from extending the doctrine, or something like it, to cover prospective acts in certain scenarios, courts have generally avoided “taking a look under the hood” and wrestling with the policy concerns underlying the doctrine to see if they still apply prospectively. This Note examines the potential use of the de facto doctrine in the gerrymandering context. Both racial and partisan gerrymandering present distinct challenges for courts seeking to prospectively apply the de facto doctrine to acts of a state legislature: generally, gerrymanders are created intentionally, making it harder to apply any “good faith” exception; illegal gerrymandering by its nature trespasses on important constitutional guarantees; and the traditional motivations for the de facto doctrine—necessity and reliance—arguably do not apply to legislation crafted by an unconstitutional government body seeking to preserve its power. By examining the historical roots of the doctrine, tracing its modern development, and considering its underlying policy rationales, this Note seeks to answer two questions: (1) how have courts expanded the de facto doctrine and its animating principles prospectively?; and (2) how do those expansions shape the prospective application of the doctrine in the gerrymandering context?