The Yale Law Journal, vol. 114, #5, March 2005, carries an article “Judging Partisan Gerrymanders Under the Elections Clause” by Jamal Greene.

In 2001, the US Supreme Court struck down a Missouri law that said opponents of congressional term limits should have a label printed on the ballot, indicating that they had oppose that proposed constitutional amendment. That case, Cook v Gralike, said Article 1, sec. 4 of the U.S. Constitution (the “Elections Clause”) forbids the states from discriminating for or against any class of candidates for Congress.

The Yale Law Journal article is focused on Cook v Gralike. This particular article says that under the Cook v Gralike theory, partisan gerrymandering is unconstitutional. That’s an interesting idea in its own right. The article looks into British history, and U.S. colonial history, to support its thesis.

When Cook v Gralike was decided in 2001, B.A.N. argued that the theory behind Cook v Gralike could also be used to overturn severe ballot access requirements for congress (see March 1, 2001 B.A.N.). Unfortunately, Cook v Gralike has been ignored, ever since it was written. The Yale Law Journal article may cause more judges and attorneys to think about Cook v Gralike.