Gerrymandering. Stephen K. Medvic

lines are that extreme. There are a number in which electoral districts correspond to predetermined sub-national governmental jurisdictions (e.g., provinces or states).⁸ In the remaining countries, where districts don’t correspond to permanent territorial units, gerrymandering becomes a possibility.

Even in countries that utilize redistricting commissions, gerrymandering can occur. Of course, the extent to which this is possible depends on how the commission is constructed and how it operates. Nevertheless, even in places where redistricting commissions are supposed to be neutral, forms of gerrymandering can take place. The United Kingdom, for example, uses Boundary Commissions (one each for England, Scotland, Wales, and Northern Ireland) to establish parliamentary constituencies. Despite the fact that the Commissions are designed to be independent and non-partisan, Ron Johnston, Charles Pattie, and David Rossiter have found significant bias (in favor of the Labour Party) in the results of UK general elections through 2005. In part, this bias was the result of “increased efficiency of Labour’s votes.”⁹ This increased efficiency of the vote, in turn, is explained (at least in part) by the Labour Party’s efforts to influence boundaries during the Public Inquiries conducted by the Commissions.¹⁰ Thus, even when partisan operatives don’t control the redistricting process, they may nonetheless influence it.

      It should be noted that electoral systems using single-member legislative districts (i.e., one representative per district) almost inevitably produce disproportional results. The percentage of seats won by the victorious party will usually be larger than the percentage of votes they received because of the winner-take-all nature of these districts. Winning districts with 75, 60, or even 51 percent of the vote results in 100 percent of the representation for those districts.¹¹ However, this disproportionality is not the same as bias, as Johnston and his colleagues point out.¹² We’ll discuss various definitions, and measures, of partisan bias later in the book. For now, it’s worth noting that gerrymandering, by definition, results in biased electoral results and bias is the chief problem with gerrymandering.

      Of course, gerrymandering can sometimes be used for purposes other than maximizing the number of seats for a party. The protection of incumbents is another, quite common, use of gerrymandering (sometimes referred to as “bipartisan gerrymandering”). Though it is possible to protect incumbents while also maximizing seats for a party, it is generally thought to be difficult to do both effectively. To protect an incumbent in one place often means giving up a seat to the other party elsewhere. Regardless of why it’s being done, however, the root problem with gerrymandering is the same – it creates an unlevel playing field in a given district.

      The need to redraw district lines, in and of itself, doesn’t create biased maps.¹³ Indeed, unbiased districts can be drawn, as the experience of many countries, and even many American states, demonstrates. Instead, it’s the political nature of the redistricting process that makes gerrymandering so hard to avoid.

To say that the redistricting process is political is not to imply that it is corrupt.¹⁴ It is simply to recognize that politically motivated actors will use any legal means to achieve their goals.¹⁵ To a non-partisan observer, this may appear ethically problematic or, at the very least, distasteful as it seems to place narrow self-interest above the common good. The partisan, however, sees their goals as synonymous with the greater good. If they are inclined to consider the ethical implications of their actions, they are likely to find those actions perfectly acceptable. They are, after all, pursuing the greater good (as conceived from their partisan perspective).

      Put another way, the politics of redistricting simply reflect the underlying tensions within a given political system. As political scientists Bernard Grofman and Lisa Handley so wisely note in the introduction to their collection of comparative studies of the subject,

      Redistricting can be thought of as politics in a microcosm. Redistricting struggles are fought on several levels in ways that reflect both the politics of ideas and the politics of naked power. The allocation of seats and the drawing of constituency boundaries have practical, legal, and philosophical implications. To reflect on redistricting forces us to think about the underlying bases of political representation and the related fundamental issues of democratic theory.¹⁶

      It is to the philosophical implications that we now turn our attention. It is easy to condemn gerrymandering as a perversion of democratic processes. However, doing so requires a clear understanding of what it means to say a process is ‘democratic.’ As we’ll see, that is more complicated than it might first appear.

Fair Elections

It is commonplace to hear that democratic elections must be “free and fair.” But what, exactly, does that mean? Drawing on Robert Dahl’s classic work, Jørgen Elklit and Palle Svensson argue that elections must avoid coercion if they are to be free.¹⁷ Voters must be allowed to fully participate in the process, meaning their rights to assemble peaceably, speak freely, and associate expressively, among others, must be protected. Free elections, according to Elklit and Svensson, entail “the right and the opportunity to choose one thing over another.”¹⁸

      Whereas free elections must avoid coercion, fair elections must ensure impartiality. Fairness “involves both regularity (the unbiased application of rules) and reasonableness (the not-too-unequal distribution of relevant resources among competitors).”¹⁹ That is, election rules must apply equally to everyone, and all political parties and candidates must have roughly equal access to resources that are necessary to be competitive. Equality, then, is a vital aspect of electoral fairness. It is the basis, for instance, of the “one person, one vote” standard.

      Free elections occur almost automatically in free countries. It’s nearly impossible to imagine a country with protections for free speech or a free media somehow curtailing those freedoms in the electoral arena. Fairness, on the other hand, requires the conscious development and application of impartial electoral rules. A country may be judged to be fair, in general, according to any number of standards and still have election laws that fail to ensure electoral fairness.

We might think of electoral fairness, following the political theorist Dennis Thompson, as “electoral justice.” Electoral justice, in turn, “is a species of procedural justice. It seeks fair terms of cooperation, a set of practices that all citizens could accept as an equitable basis for making collective decisions.”²⁰ Importantly, Thompson argues that we must judge electoral processes independently of the outcome of any given election (or set of elections). In other words, we can’t decide that an electoral rule is fair or just simply because we’re happy with the result of an election. We have to assess electoral rules and procedures in and of themselves. For Thompson, electoral rules “are just to the extent that they realize principles that could be freely adopted under conditions of equal power. In the case of electoral justice, the principles express the values of equal respect, free choice, and popular sovereignty.”²¹

      Thompson readily acknowledges that people will interpret these principles differently. What sorts of (and how many) alternatives must voters be given if their choices are to be free? How equal must voters, or candidates, be in order to achieve an equal level of respect and what is required to ensure such equality? Must the electoral system always enable the majority to win if “the people” are to rule? Of course, the problem is not only that it isn’t obvious what kinds of procedural arrangements are necessary to achieve equality, liberty, and popular sovereignty. It’s that these principles can sometimes come into conflict with one another. The freedom of a billionaire to spend as much as they’d like supporting the party or candidate of their choice conflicts with the ability of citizens to have equal voice in the process or of candidates to have roughly equal resources for contesting an election.

      It is unlikely, therefore, that debates over electoral rules and procedures – including redistricting and gerrymandering – will take the form of a democratic side versus an undemocratic side. Instead, the debate is over competing visions of democracy. Thus, the most productive way to frame the debate over gerrymandering is as follows: One side believes redistricting should be considered