Redistricting Litigation and the Delegation of Democratic Design
59 Pages Posted: 2 Aug 2013
Date Written: March 1, 2013
The power to redraw electoral lines is the power to design elections. Enormous significance therefore attaches to any delegation of redistricting authority. Yet in every jurisdiction in the country, the power to redistrict has been delegated to a varied collection of actors whose participation largely has escaped academic attention. They are as ubiquitous as they are overlooked: they are the redistricting litigants. These actors’ participation in the process leads to a startling form of redistricting. Though the majority of these litigants are not elected, appointed, or in any way vetted by the electorate at large, they are empowered to affect electoral lines in deliberate and politically consequential ways; to affect the rights of non-parties without providing class-action protections or other defenses; and to exploit a procedural regime that, due to the time pressures of the election cycle, becomes warped in ways that give litigants significant leverage to advance their own agendas. These features reflect a regime developed not through deliberate design, but rather through the accidental effects of judicial intervention. This Article responds to the persistent gap in the literature by revealing the unacknowledged power of redistricting litigants. It identifies the concerns their participation raises with respect to the outcomes, efficiency, and legitimacy of the redistricting process, and it concludes with a discussion of targeted reforms. These reforms include institutional adjustments meant to reduce reliance on litigants and procedural changes meant to give greater voice to non-parties.
Keywords: Redistricting, Voting Rights, Litigation, Litigants, Procedure, Federal Courts, Forum Selection, Class Actions
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