Gerrymandering. Stephen K. Medvic

that redistricting should be thought of as a periodic adjustment to the foundational rules of the political system. The former will necessarily be ‘political’ and partisan; the latter aims to be apolitical and non-partisan.

As it happens, most of those who embrace the political/partisan perspective, or what I’ll call the “realpolitik redistricting” argument, are political practitioners such as campaign consultants and party operatives. There are some scholars in this camp but most of its adherents work in the realm of practical politics. The other side of the debate, which we might call the “civic redistricting” argument, consists mostly of legal scholars, political scientists, and reform activists. Thus, in a given sphere – “real world” politics or academia – the debate may be lop-sided. Taken as a whole, however, there are as many advocates of one perspective as there are of the other. These advocates simply come from different worlds and are, undoubtedly, influenced by their experiences in those different domains.

      The realpolitik redistricting argument rests on the assumption that no process involving political actors can be apolitical, nor can the product of such a process be neutral. Even if some such processes could be apolitical, redistricting is not likely to be one of them. As the political scientist Justin Buchler explains, given the winner-take-all nature of legislative districts in the United States, the procedures for drawing district boundaries will inevitably determine winners and losers, broadly defined, in those districts. Indeed, according to Buchler, choices about redistricting rules are “indistinguishable from the question of who should win and who should lose.”²² This holds both for the choice of actors responsible for redistricting and for the specific decision-making rules those actors choose to utilize to draw maps. “Thus,” writes Buchler, “there can be no apolitical redistricting in any meaningful sense of the term because the choice of delegation is as ‘political’ as the choice of algorithm.”²³

In partisan and bi-partisan (or incumbent protection) gerrymanders, it is easier to see how the process picks winners and losers. However, even if district lines are drawn to enhance competition between the parties (an approach Buchler calls a “competitive gerrymander”²⁴), winners and losers are being determined. If competitive districts make it more likely that a centrist candidate will win, then centrist voters are the winners, and non-centrists are losers. If, given voter and candidate polarization, a non-centrist is sure to win, then non-centrists on the winning candidate’s side of the spectrum are the winners and centrists and non-centrists on the other side of the spectrum are the losers.²⁵

      Critical to the realpolitik argument is the claim that voters aren’t powerless in the process. They know that redistricting takes place in the year following the census and they can vote for candidates who will draw lines the way they’d prefer them to be drawn. As the political commentator Kevin Williamson puts it,

      If Democrats are unhappy with Republican domination of the state legislatures and governorships – and they should be unhappy – then they have a much more direct option [than going to court]: They can go into the states and ask people for their votes in legislative races and in gubernatorial elections. If they find that route difficult, then maybe the Democrats should be rethinking what they’re trying to sell people.²⁶

      According to this view, when the voters put one party in charge of the entire post-census legislative process, they are likely to be satisfied with the legislative maps that party draws. (If, on the other hand, voters produce divided government – that is, control of at least one chamber in the state legislature is in the hands of one party while the governor is a member of the other party – then they apparently prefer compromise in the redistricting process.)

In fact, the realpolitik perspective maintains that it is undemocratic to take redistricting out of the democratic process. “Redistricting is not politicized. It is political,” writes Williamson. “For the Democrats and the Supreme Court to try to step in and take away from the state legislatures their longstanding right to draw up legislative districts as they see fit is much more deeply undemocratic than anything Republican gerrymanderers ever dreamt up.”²⁷ Take, for instance, the use of independent redistricting commissions to draw district boundaries. Members of such a commission, like judges, may appear non-partisan but they undoubtedly have partisan loyalties. It’s not realistic to expect that people involved in public affairs will be apolitical. But even if they were non-partisan, redistricting commissions with the power to unilaterally determine district lines would not be accountable to the voters. What recourse would voters have if a redistricting commission produced district maps the voters found objectionable?

      Finally, this perspective maintains that the rules of the game were established at the founding of the country, when the Constitution was adopted. Those rules – essentially, the Constitution – can be amended, but that process itself is provided for in the Constitution. However, in the absence of an attempt to change the Constitution, formally or informally as part of what might be referred to as “constitutional politics,” “normal politics” reigns.²⁸ Normal politics is the familiar, day-to-day struggle over “who gets what, when, and how,” as the political scientist Harold Lasswell famously put it.²⁹ Redistricting, then, is simply part of normal politics.

      One might argue, of course, that the Constitution forbids partisan gerrymandering. We will consider that argument in a later chapter. For now, suffice it to say that the realpolitik viewpoint does not believe partisan gerrymandering is constitutionally prohibited. To understand why, it’s worth quoting law professors Larry Alexander and Saikrishna Prakash at length:

There is no natural or obviously correct way of dividing voters into equipopulous districts. People have diverse preferences about how that ought to occur. Nor are there obviously wrong or improper ways of allocating voters across equipopulous districts. If we are to believe that the Constitution mandates certain districting and electioneering ideals, then we have to suppose that the Constitution implicitly imposes certain rather controversial and complex preferences on the conduct of districting and elections. Necessarily, we have to imagine that the Constitution also implicitly rejects all other plausible preferences about districting and elections. We think that such claims have no merit.³⁰

      The countervailing viewpoint, the civic redistricting perspective, acknowledges that neutrality in human processes is difficult to achieve. Nonetheless, it takes the position that we should strive to find a set of rules governing the operation of elections that both parties (or, indeed, all parties) can accept. Without opening a Pandora’s box of contemporary political theory, this position is grounded in the notion of public reason and the claim that political actors ought to be reasonable in their public deliberations.³¹ To be reasonable, a person must be willing “to live by rules that can be justified to similarly motivated citizens on grounds that they could accept.”³² There is, then, an important element of reciprocity at work here. What is fair for one side ought to be fair for the other (or others). We’ll find a version of reciprocity later in the book in the concept of partisan symmetry.

With respect to processes governing democratic elections, reasonable people would likely agree that the purpose should be to establish robust competition. Competitive elections are, after all, a hallmark of democracy. In a series of academic papers, the legal scholars Samuel Issacharoff and Richard Pildes develop a framework for adjudicating electoral rules that seeks to maintain “competitive partisan political environments that avoid insider lockups of democratic politics.”³³ Whereas current jurisprudence interprets election law in the context of individual rights and state interests, Issacharoff and Pildes argue that the focus should be on “the background rules that structure partisan political competition.”³⁴ “The key to our argument,” they write,

      is to view appropriate democratic politics as akin in important respects to a robustly competitive market – a market whose vitality depends on both clear rules of engagement and on the ritual cleansing born of competition. Only through an appropriately competitive partisan environment can one of the central goals of democratic politics be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens. But politics shares with all markets a vulnerability to anticompetitive behavior.