Gerrymandering. Stephen K. Medvic

population of a state or the nation (and which should we prioritize if we cannot have both)?

      The answers to those questions are complicated. The aim of this chapter has been to explore that complexity and to suggest that applying one set of principles to the redistricting process will likely mean sacrificing another set of principles. Regardless of one’s feelings about gerrymandering, the hope is that this chapter will have made readers aware of the validity of competing perspectives on the practice.

Notes

      1 1. Wang, Sam. 2013. “The Great Gerrymander of 2012.” The New York Times, February 2. https://www.nytimes.com/2013/02/03/opinion/sunday/the-great-gerrymander-of-2012.html (accessed July 17, 2019).

      2 2. Emamdjomeh, Armand, Ann Gerhart, and Tim Meko. 2018. “Why North Carolina’s House district lines have been upended – again.” The Washington Post, August 31. https://www.washingtonpost.com/graphics/2018/politics/north-carolina-redistricting/ (accessed August 21, 2019).

      3 3. Campaign Legal Center press release, January 25, 2019. https://campaignlegal.org/sites/default/files/2019-01/CLC%20Bipartisan%20Redistrictig%20Poll.pdf

      4 4. Ibid.

      5 5. Grofman, Bernard and Lisa Handley. 2008. “Introduction: Redistricting in Comparative Perspective.” In Redistricting in Comparative Perspective, eds. Bernard Grofman and Lisa Handley (New York: Oxford University Press), 3–8.

      6 6. Burnett, Kristin D. 2001. “Congressional Apportionment: 2010 Census Briefs,” United States Department of Commerce, US Census Bureau, 4. https://www.census.gov/content/dam/Census/library/publications/2011/dec/c2010br-08.pdf (accessed July 18, 2019).

      7 7. The exceptions are states with only one representative, since state boundaries serve as the congressional district lines.

      8 8. For a comprehensive list, see Appendix A in Grofman and Handley.

      9 9. Johnston, Ron, Charles Pattie, and David Rossiter. 2008. “Electoral Distortion Despite Redistricting by Independent Commissions: The British Case, 1950–2005.” In Redistricting in Comparative Perspective, eds. Bernard Grofman and Lisa Handley (New York: Oxford University Press), 218.

      10 10. Ibid., 219.

      11 11. For a classic treatment of this phenomenon, see Rae, Douglas W. 1967. The Political Consequences of Electoral Laws. New Haven, CT: Yale University Press.

      12 12. Johnston et al., “Electoral Distortion Despite Redistricting by Independent Commissions,” 205.

      13 13. Though it is possible to unintentionally produce biased maps, we are concerned with deliberate efforts to manipulate the process for partisan ends.

      14 14. On this point, generally, see Crick, Bernard. 2005. In Defense of Politics. New York: Continuum.

      15 15. Some may also break the law in pursuit of their ends but we should not expect, and certainly should not accept, such behavior.

      16 16. Grofman and Handley, “Introduction,” 3.

      17 17. Elklit, Jørgen and Palle Svensson. 1997. “What Makes Elections Free and Fair?” The Journal of Democracy 8: 35. See also Dahl, Robert A. 1989. Democracy and Its Critics. New Haven, CT: Yale University Press, 221.

      18 18. Elklit and Svensson, “What Makes Elections Free and Fair?,” 35.

      19 19. Ibid.

      20 20. Thompson, Dennis F. 2002. Just Elections: Creating a Fair Electoral Process in the United States. Chicago, IL: The University of Chicago Press, 2.

      21 21. Ibid.

      22 22. Buchler, Justin. 2010. “The Inevitability of Gerrymandering: Winners and Losers Under Alternative Approaches to Redistricting.” Duke Journal of Constitutional Law & Public Policy 5: 18–19 (emphasis mine).

      23 23. Ibid., 19.

      24 24. Ibid., 20.

      25 25. Ibid., 30–3.

      26 26. Williamson, Kevin D. 2017. “In Praise of Gerrymandering.” National Review, June 21. https://www.nationalreview.com/2017/06/gerrymandering-supreme-court-case-redistricting-legislature-republicans-democrats/

      27 27. Ibid. For a scholarly argument against judicial interference in incumbent-protection gerrymandering, see Persily, Nathaniel. 2002. “In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders.” Harvard Law Review 116: 649–83.

      28 28. The distinction between “normal politics” and “constitutional politics” was first drawn by Bruce Ackerman though not in the context of redistricting. The distinction is part of his theory of “dualist democracy.” See Ackerman, Bruce. 1991. We The People: Foundations. Cambridge, MA: The Belknap Press.

      29 29. Lasswell, Harold D. 1936. Politics: Who Gets What, When, How. New York: McGraw-Hill.

      30 30. Alexander, Larry and Saikrishna B. Prakash. 2008. “Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering.” William and Mary Law Review 50: 46–7.

      31 31. There is a large philosophical literature on public reason and reasonableness. The classic statement, however, is found in Rawls, John. 1993. Political Liberalism. New York: Columbia University Press, 48–54.

      32 32. Quong, Jonathan. 2004. “The Scope of Public Reason.” Political Studies 52: 248–9, n. 1.

      33 33. Issacharoff, Samuel and Richard Pildes. 1998. “Politics as Markets: Partisan Lockups of the Democratic Process.” Stanford Law Review 50: 643. See also Pildes, Richard H. 1999. “The Theory of Political Competition.” Virginia Law Review 85: 1605–26; and Issacharoff, Samuel. 2000. “Oversight of Regulated Political Markets.” Harvard Journal of Law & Public Policy 24: 91–102.

      34 34. Issacharoff and Pildes, “Politics as Markets,” 648.

      35 35. Ibid., 646.

      36 36. Issacharoff, Samuel. 2002. “Gerrymandering and Political Cartels.” Harvard Law Review 116: 600.

      37 37. Ibid., 599.

      38 38. See Levitt, Justin and Michael P. McDonald. 2007. “Taking the ‘Re’ Out of Redistricting: State Constitutional Provisions on Redistricting Timing.” Georgetown Law Journal 95: 1247–86.

      39 39. See, for example, Huefner, Steven F. 2010. “Don’t Just Make Redistricters More Accountable to the People, Make Them the People.” Duke Journal of Constitutional Law & Public Policy 5: 37–67; and Kang, Michael S. 2006. “De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform.” Washington University Law Review 84: 667–716.

      40 40. That is, unless it is part of a type of politics Mark Tushnet calls “constitutional hardball,” which occurs, according to Tushnet, during times of constitutional transformation. See Tushnet, Mark V. 2004. “Constitutional Hardball.” The John Marshall Law Review 37: 523–53. That might be a difficult case to make, given the long history of gerrymandering in the United States. However, one could argue that the particularly aggressive attempts to gerrymander districts following the 2010 census, especially by the Republican Party, amount to constitutional hardball. For an account of those efforts, see Daley, David. 2016. Rat F**ked: Why Your Vote Doesn’t Count. New York: Liveright Publishing.

      41 41. See the entry for “beanbag” in Safire, William. 2008. Safire’s Political Dictionary, Updated and Expanded Edition. New York: Oxford University Press, 45–6.

      42 42. For a very useful review, see Urbinati, Nadia and Mark E. Warren. 2008. “The Concept of Representation in Contemporary