Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering
University of San Diego School of Law
University of Virginia School of Law
San Diego Legal Studies Paper No. 08-031
William & Mary Law Review, Forthcoming
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 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 an ordinary political issue. 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.
Number of Pages in PDF File: 42
Keywords: gerrymandering, districting, vote dilution
JEL Classification: K10Accepted Paper Series
Date posted: June 26, 2008
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