The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting

• Author: Jordan Carr Peterson
• DOI: http://doi.org/10.1111/lapo.12132
• Published date: 01 July 2019
• Date: 01 July 2019

The Mask of Neutrality: Judicial Partisan

Calculation and Legislative Redistricting

JORDAN CARR PETERSON

Do judges ruling on redistricting litigation increase electoral competition in congressional races

while simultaneously drawing districts favoring their party’s congressional candidates? I offer a

novel theory of judicial partisan calculation, arguing that judges draw more competitive dis-

tricts than legislatures or commissions, but that judge-drawn districts favor the electoral inter-

ests of their copartisans. These claims are reconcilable because judges target districts held by

contrapartisan legislators to maximize their copartisans’ fortunes. I find that Democratic

judges draw competitive districts by adding Democratic voters to Republican-held House con-

stituencies. Court-administered redistricting increases competitiveness, ostensibly due to judi-

cial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.

The redistricting process lies at the heart of American democracy because decisions

about legislative district boundaries define both the form and substance of representa-

tives’ constituencies. The boundaries of legislative districts profoundly impact the rela-

tionship between representatives and constituents, governments and the governed (Cain

1985; Yoshinaka and Murphy 2009, 2011; Cottrill 2012; McKee 2013; Carson, Crespin,

and Williamson 2014). The redistricting process, likewise, influences the character and

quality of democratic governance in the United States due to the range of preferences

motivating those who determine district boundaries.

The determination of district boundaries in the United States occurs through a variety

of methods due to both the federal framework of American government and the preva-

lent use of litigation to resolve disputes in American politics. In many states, state legis-

lators make redistricting choices each decade, while other states’ legislative districts are

drawn by commissions. In other instances, judges either draw the lines themselves or

oversee the creation of new constituency boundaries by experts. Scholars have argued or

shown that redistricting often results in more competitive legislative elections when

judges draw the district lines (Carson, Crespin, and Williamson 2014). Scholars often

assume that this result occurs because courts are more neutral than legislatures when it

comes to partisan and political districting considerations, as legislators have partisan

incentives when redrawing lines (Murphy and Yoshinaka 2009).

I would like to thank Christian Grose and Jeb Barnes for their helpful comments on this article. I would also

like to acknowledge the Southern California Law and Social Science Forum for providing a place to share an

early version of the work.

Address correspondence to: Jordan Carr Peterson, Texas Christian University, DepartmentofPolitical Science,

TCU Box 297021, Fort Worth, TX 76129, USA. Telephone: (904) 704-3335; Email: jordancarrpeterson@gmail.com.

LAW & POLICY, Vol. 41, No. 3,

©2019 The Author

Law & Policy ©2019 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12132

ISSN 0265-8240

I argue that, all else being equal, congressional elections are most competitive in dis-

tricts in which judges draw the district lines. I theorize, however, that judges also draw

and approve districts that systematically favor their copartisan legislative candidates.

How are these two apparently countervailing tendencies reconciled? As an answer,

I advance a novel theory of judicial partisan calculation that explains how cloaking parti-

san advancement in the guise of electoral competition makes it possible to find both that

judges increase overall competitiveness and that judges maximize their congressional

copartisans’ vote shares. On balance, judges enhance the average electoral competitive-

ness at the district level, but these increases in district-level competitiveness tend to come

mostly from judges increasing their legislative copartisans’ likelihoods of winning elec-

tions as challengers against contrapartisan incumbents. In this way, judges strategically

target districts held by contrapartisan legislators in order to increase their copartisans’

vote shares in those congressional constituencies. This means that judges indeed make

districts more competitive, but not in the manner typically imagined by those who as a

rule find more competitive legislative elections normatively desirable. My theory is

informed by existing work suggesting that court-ordered redistricting is part of an itera-

tive process in which legislators drawing district lines after redistricting decisions became

justiciable —and those observing the process—anticipate the possibility that their maps

will be altered by courts that might behave in an even more nakedly partisan manner

than the legislators (Cox and Katz 2002). I argue that despite the likelihood of the parti-

san distribution in the federal judiciary indirectly influencing electoral dynamics in

legislature-drawn plans, there are theoretical advancements to be made by carefully con-

sidering the political geography of where and for whom judges enhance electoral compe-

tition. In contrast to the implications of past work on court redistricting, I argue that

judges are neither neutrally nor arbitrarily creating electorally competitive districts;

instead, this enhanced competition is a result of judicial partisan calculation regarding

where new votes and voters might be most influential.

I test my argument’s claims empirically by examining the association between the

district-level margin of victory in legislative elections and both the type of redistricting

method and the partisanship of judges from 1982 to 2012. To my knowledge, no scholar

has examined whether the margin of victory in congressional elections is associated with

judicial redistricting over so long a time period, nor has any scholar theorized that judicial

partisan calculation of the sort I describe—in which judges deliberately target districts

held by contrapartisans for increased electoral competition—leads to systematically differ-

ent outcomes in legislative elections. I find that judicial redistricting plans have resulted in

more competitive elections than plans drawn by state legislatures and non-independent

commissions (consistent with Cottrill and Peretti 2013 and Carson, Crespin, and

Williamson 2014). Further, I find that since judges may rightly be seen as actors in or

attendant to a political regime and as doing the bidding of their preferred partisan coali-

tions, judges drawing districts appear to advance the electoral interests of their copartisan

candidates for Congress (consistent with the extant literature on judicial partisanship and

election litigation [e.g., Lloyd 1995; Kopko 2015; Peretti 2016]). Contrary to previous

studies finding no effect of judicial partisanship on electoral outcomes (Cottrill and Peretti

2013) or finding partisan behavioral effects when examining judicial decisions about indi-

vidual instances of redistricting on their own without comparing the electoral outcomes of

those decisions with the outcomes following legislative or commission redistricting

(McKenzie 2012), I demonstrate that some judges draw legislative districts that provide

significant electoral rewards to copartisan congressional candidates. While courts may in

fact draw more electorally competitive districts than legislatures, court-drawn electoral

competition seems to have its roots in judges’ partisan calculations.

©2019 The Author

Law & Policy ©2019 The University of Denver/Colorado Seminary

Peterson THE MASK OF NEUTRALITY 337