Tempest in an empty teapot: why the Constitution does not regulate gerrymandering.

AuthorAlexander, Larry

Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"---legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons--they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate--the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. Yet the Constitution nowhere provides that a party's strength in the legislature should roughly mirror its strength in the populace, as the partisan gerrymandering cases suppose. Nor does the Constitution favor competition in legislative races, thereby forcing legislators to draw districting lines that maximize the number of competitive elections. In maintaining that the Constitution establishes districting and election ideals, the critics of gerrymandering have supposed that the Constitution incorporates their preferences about what is fair and just with respect to electoral contests and outcomes. But as we show, there are innumerable reasonable preferences about the composition of districts and legislatures, not all of which can be satisfied simultaneously. More importantly, there is no reason to think that the Constitution enshrines any of these preferences about districting and election outcomes, let alone the critics" particular preferences. We believe that the critics of gerrymandering have made the mistake of imagining that the Constitution incorporates their particular preferences. That is to say, they have sought a constitutional resolution to a matter of ordinary politics. Unfortunately, the search is futile, for the Constitution does not address the ills, real or imagined, associated with drawing district lines. The Constitution no more regulates gerrymandering than it regulates pork-barrel spending or the many advantages of incumbency.

TABLE OF CONTENTS

INTRODUCTION I. WHY GERRYMANDERS ARE THOUGHT TO BE UNCONSTITUTIONAL II. THE CASE OF PARTISAN GERRYMANDERS A. Partisan Gerrymanders as Unconstitutional Vote Dilution 1. Partisan Gerrymanders as Second-Generation Vote Dilution 2. Why the Constitution Has Nothing To Say About Second-Generation Vote Dilution a. Difficulties with the Concept of Statewide Vote Dilution b. Difficulties with the Concept of District Vote Dilution c. Voters Favoring Vote Dilution 3. Which Form of Vote Dilution Does the Constitution Prohibit? B. Partisan Gerrymanders as Anti-Democratic Measures C. Partisan Gerrymanders as Structural Constitutional Violations D. Partisan Gerrymanders as First Amendment Violations E. Why Partisan Gerrymanders Are Matters of Ordinary Politics III. WHY RACIAL AND OTHER GERRYMANDERS ARE NO DIFFERENT A. The Seemingly Hard Case of Racial Gerrymanders B. Other Gerrymanders IV. OBJECTIONS A. Not All Majority Preferences Are Intransitive B. Our Argument Implicitly Repudiates Reynolds v. Sims C. Legislative Self-Dealing Simply Must Be Unconstitutional CONCLUSION INTRODUCTION

Gerrymandering is older than the republic, the first American gerrymander occurring in early eighteenth-century Pennsylvania. (1) The portmanteau "gerrymander" was coined in 1812 to describe a particularly contorted Massachusetts district, one created as part of a larger redistricting plan that Governor Elbridge Gerry had signed into law. (2) Apparently, guests at a dinner party were lamenting the contours of that particular district, noting that it looked like a lizard or salamander, when one guest exclaimed that the district looked more like a "gerrymander." (3) Ever since, "gerrymander" has been used as an epithet to describe districts that are thought to have been drawn with an eye toward furthering various agendas.

The legislators who drafted the 1812 Massachusetts redistricting plan were rank amateurs compared to the sophisticates who craft districting plans today. For some time now, legislators have used demographic data to identify, among other things, the racial background, party affiliations, and voting proclivities of residents. (4) Using these data, legislators have utilized computers to draw precise district lines in order to include certain voters in particular districts and exclude others. (5) The aim is to draw district boundaries that increase the likelihood of some electoral outcome, (6) such as more Republican (or Democrat) legislators, or more (or fewer) minority legislators.

As lawmakers have become more skilled at shaping district lines, a scholarly consensus has emerged that excessive gerrymandering is unconstitutional. (7) Racial gerrymanders might be used to divide the votes of racial minorities and thereby deprive them of a "fair share" of legislative representation. Partisan gerrymanders (8) might minimize the electoral representation of members of the opposing party. (9)

This is one area where the courts largely agree with the scholars. Indeed, the Supreme Court has long regarded certain racial gerrymanders to be unconstitutional. (10) Moreover, all current Justices seem to agree that certain partisan gerrymanders may be unconstitutional, even as a slim majority continues to believe that no judicially administrable standards exist by which to determine precisely when partisan gerrymanders are unconstitutional. (11)

Although there is a consensus that gerrymandering may violate the Constitution, there is a marked disagreement as to why. To begin with, there is disagreement about which provisions of the Constitution gerrymanders violate. Depending upon whom one reads, gerrymandering supposedly violates the First Amendment, (12) the Guarantee Clause, (13) the Elections Clause, (14) and the Equal Protection Clause. (15) A few go further, claiming that although gerrymandering violates no specific clause, it violates the Constitution's overall structure. (16) Perhaps just as important, there is disagreement about the constitutional evils caused by gerrymandering. Some claim that gerrymanders are unconstitutional because they dilute votes; (17) others lament that they generate uncompetitive elections; (18) and still others say that the evil is that gerrymanders produce extremist legislators, who are unwilling to compromise. (19)

Disagreement about why some statute or practice is unconstitutional is not uncommon. For instance, several scholars have written about what Roe v. Wade (20) ought to have said, with many different rationales (other than the Court's) offered to justify the claim that the Constitution safeguards an abortion right. (21) Such disagreement, by itself, hardly means that each of the alternative rationales is wrong. Still, it does suggest that individuals approach the question of abortion regulation from different perspectives and that these perspectives, in turn, lead to distinctive diagnoses of the supposed constitutional problems associated with laws regulating abortion.

We believe something similar has occurred with respect to gerrymanders. Diverse constitutional arguments have been invoked against gerrymandering because gerrymanders trouble individuals for many different reasons. Certain preferences resonate with some scholars and judges (for example, the desire for a legislature that reflects the demography of the electorate) (22) at the same time that other preferences (such as the desire for competitive elections) (23) strike a chord with a different set of critics. In the case of gerrymandering, we believe that the dissensus about why and when gerrymanders are unconstitutional reflects rather serious shortcomings with the underlying assertion that the Constitution somehow regulates gerrymandering.

Legislators do nothing constitutionally suspect when they draw districts with the hope of securing a partisan advantage. Indeed, politicians pass many statutes with an eye toward securing their election and giving their party a leg up on the competition. Gerrymandered districting plans are no different in kind. Such schemes are just a matter of ordinary politics, no more unconstitutional than pork-barrel spending or legislation that confers a benefit upon a labor union or corporation.

Moreover, despite the even more robust consensus that the Constitution forbids racial gerrymanders that dilute the votes of racial minorities, (24) this orthodoxy likewise rests on a false foundation. The idea that so-called minority vote dilution violates the Constitution mistakenly assumes that the Constitution actually addresses this form of vote dilution. (25) But as we show, the Constitution simply does not speak to minority vote dilution. (26) The same point holds true for any gerrymander, using the term broadly to mean any outcome-driven drawing of electoral district lines. Neither "gender gerrymanders," "ethnic gerrymanders," nor "religious gerrymanders" are unconstitutional because they allegedly dilute the votes of males, Latin-Americans, or Catholics. (27)

How can this be? Each of the very different objections voiced against gerrymandering--vote dilution, the non-competitiveness of elections, the polarization of legislatures--assumes that the Constitution establishes certain controversial districting and election ideals. The fatal flaw running through all such complaints is that the Constitution neither envisions nor mandates any such ideals. The Constitution never sets out criteria for the proper composition of the legislature, the suitable amount of electoral competitiveness, or the correct ideological balance of legislators within a legislature.

Consider vote dilution. The very concept of dilution necessitates some baseline against which to measure the supposed dilution. Yet the Constitution does not establish an ideal...

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