Redistricting and the territorial community.

• Author: Stephanopoulos, Nicholas O.

As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional--but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to organic geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they unnecessarily disrupt them.

This approach, which I call the "territorial community test," has a robust theoretical pedigree. In fact, the proposition that communities develop geographically and require legislative representation has won wide acceptance for most of American history. The courts have also employed variants of the test (without scholars previously having noticed) in several related fields: reapportionment, racial gerrymandering, racial vote dilution, etc. The principle of district-community congruence thus animates much of the relevant case law already. The test is largely unscathed, furthermore, by the unmanageability critique that has doomed every other potential redistricting standard. The courts have shown for decades that they can compare district and community boundaries, and the social science literature confirms the feasibility of such comparisons. Finally, the political implications of the test's adoption would likely be positive. My empirical analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participation would rise.

It is true that the territorial community test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinal dead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart.

INTRODUCTION I. THEORETICAL UNDERPINNINGS A. The Underlying Theory B. Other Approaches 1. Compactness 2. Competition 3. Partisan Fairness II. THE ARC OF HISTORY A. Ascendance B. Decline and Fall C. Comeback 1. Reapportionment 2. Racial Vote Dilution 3. Racial Gerrymandering 4. Political Gerrymandering 5. State Redistricting Law III. DEVELOPING THE DOCTRINE A. Defining the Territorial Community B. Doctrinal Details C. Relation to Other Domains IV. MEASURING MANAGEABILITY A. Sidestepping the Problem B. The Supreme Court's Experience C. The State Courts' Experience D. The Political Science Literature E. Lingering Ambiguity V. PLAYING POLITICS A. Empirical Analysis 1. Bias and Responsiveness 2. Minority Representation 3. Voter Engagement B. The Political Science Literature 1. Bias and Responsiveness 2. Minority Representation 3. Voter Engagement CONCLUSION APPENDIX INTRODUCTION

The decennial bloodsport of redistricting is now underway. Across America, state legislatures are busy drawing new electoral district lines based on the results of the 2010 Census. These new district lines, of course, will produce both winners and losers. Some political parties will gain seats while others will lose them. Some incumbents will have their districts fortified while others will be thrown to the wolves. Some minority groups will be able to elect the candidates of their choice while others will be engulfed by the surrounding majority.

In typical American fashion, many of the losers of the redistricting wars are seeking redress in court. (1) For better or worse, the doctrine that governs most of their claims--unequal district population, racial vote dilution, racial gerrymandering, retrogression, etc.--is relatively clear. But in one crucial area, that of political gerrymandering, (2) the case law is in chaos, at the levels of both theory and practice. The relevant scholarly literature is less confused but equally fragmented. There is thus an urgent doctrinal and academic need for new ideas, as well as for some coherence where now there is mostly upheaval. The "territorial community test" that this Article introduces is an attempt to meet that need.

A generation ago, in Davis v. Bandemer, the Supreme Court recognized a cause of action for political gerrymandering for the first time) However, the standard the plurality announced, focusing on the "consistent[] degrad[ation] ... of voters' influence on the political process as a whole," (4) proved hopelessly unworkable. Scholars puzzled over what values the standard sought to capture, (5) while lower courts struggled to apply it in actual cases. (6) A few years ago, in Vieth v. Jubelirer, the Court tackled gerrymandering again, with even worse results. A plurality would have reversed Bandemer and declared the whole field nonjusticiable. (7) Three dissents proposed separate (and conflicting) approaches for determining when gerrymanders cross the constitutional line. (8) As for Justice Kennedy, ever the Court's agonist, he was unpersuaded by the plurality, but also unpersuaded by any of the dissents, leaving him (and us) in a limbo where a standard for identifying unlawful gerrymanders might exist but has yet to be discovered. (9)

In the literature, as one might expect, potential approaches abound for resolving political gerrymandering disputes. One important camp, led by Samuel Issacharoff and Richard Pildes, argues that courts should emphasize electoral competition and intervene when districts are deliberately drawn to be uncompetitive. (10) Political scientists such as Andrew Gelman, Bernard Grofman, and Gary King have devised quantitative measures that show how fairly (or unfairly) a given district plan treats the two major parties. (11) Other scholars contend that the judicial inquiry should center on partisan intent, (12) district compactness, (13) the loss of democratic legitimacy, (14) or a series of factors derived from traditional districting criteria. (15) Still other scholars assert that gerrymandering is not particularly harmful and should not be dealt with by the courts at all. (16)

As voluminous as this literature is, much of it favors approaches that already have been spurned by the Court or that are in tension with the principles underlying the American electoral system. For instance, an outright majority of the Vieth Court rejected Justice Stevens's partisan-intent standard, Justice Souter's five-part test based on traditional districting criteria, and Justice Breyer's minority-entrenchment approach. (17) Nor, despite repeated invitations, has the Court ever embraced competition as the linchpin of its election law jurisprudence; indeed, even one of the dissenters in Vieth declined to adopt "[t]he analogy to antitrust." (18) A competition-centered approach also would be difficult to reconcile with the American commitment to geographic districting, which intrinsically produces many uncompetitive constituencies. Similarly, quantitative measures of partisan fairness have been appraised skeptically by the Court, (19) and have limited relevance for a districting regime that is organized around localized constituencies rather than statewide seat and vote tallies.

In this Article, I present an approach for curbing political gerrymandering that promises to avoid some of these pitfalls. The approach, in brief, is that electoral districts should be required to correspond to underlying territorial communities. To the extent possible, the boundaries of districts and organic geographic communities should be required to coincide--and the courts should be prepared to intervene when communities are unnecessarily fused, fragmented, or subverted, and the state can offer no reasonable explanation for the communal disruption.

A few points of clarification: First, by "territorial community," I mean (1) a geographically defined group of people who (2) share similar social, cultural, and economic interests and (3) believe they are part of the same coherent entity. Under this definition, territorial communities sometimes, but not always, mirror political subdivisions such as towns and counties. Territorial communities also are not quite the same thing as "communities of interest" (a common term in the redistricting case law), which are not necessarily geographically rooted and can form on the basis of any shared concern. Rather, territorial communities arise from the unique combinations of geography, interests, and identity that characterize particular places.

Second, district and community boundaries should coincide "to the extent possible" because the one-person, one-vote rule makes perfect congruence impossible. When communities must be disrupted, however, the disruption should be minimized--for instance, by joining groups that are as similar in their interests and affiliations as is practicable. Third, "fusion" and "fragmentation" refer, respectively, to the unnecessary merger of disparate communities and division of unified communities. By "subversion," I mean the drawing of districts that diverge sharply from the defining characteristics of the larger communities in which they are located.

Lastly, when I say that the judiciary should be ready to "intervene," I primarily have in mind constitutional law as the source of the courts' authority. But the power could, of course, be derived from other wellsprings, too: an act of Congress, state legislation, or, as I have discussed elsewhere, popular initiatives and referenda. (20) I also do not claim that adherence to community boundaries should be the sole criterion for determining whether a district plan is valid. My goal here is to call attention to an intriguing but underdeveloped doctrinal possibility--not to steal the thunder of other methods for combating gerrymandering.

Little in law is ever entirely new, but this territorial community test clearly runs against the grain of contemporary scholarship. In three recent articles, for example, Richard Briffault, Richard Hasen, and...