Gerrymandered by Definition: The Distortion of 'Traditional' Districting Principles and a Proposal for an Empirical Redefinition
62 Pages Posted: 26 Mar 2020 Last revised: 26 Oct 2020
Date Written: February 1, 2020
What are “traditional” districting principles? The meaning of that term is critical to curbing abusive districting practices, because states must redistrict according to those criteria to defeat claims of racial gerrymandering. Yet, the Supreme Court has never identified those criteria explicitly or the qualities that make a criterion “traditional.” Exploiting the Court’s failure to intelligibly define traditional redistricting criteria, conflicted interests are attempting to define that term in service of their private interests at the expense of the public’s. For example, legislatures pushing redistricting plans that would advantage certain parties or incumbents claim that those districting objectives are “traditional”—and must be judicially protected—by relying on anecdotal examples of a state having used them.
This Article proposes a definition of “traditional” districting criteria that would both reduce such abuse and stay faithful to the commonly understood meaning of that word: widely accepted as standard practice. Under this alternative, which we call the empirical definition, a criterion is “traditional” only if a majority of states require or allow it and fewer than a quarter prohibit it in state constitutions, statutes, or legislative guidelines. According to the empirical definition and our database of redistricting laws in the fifty states, compactness, contiguity, equal population, and preserving county and city boundaries are traditional criteria. Among others, partisan advantage, incumbent protection, and preserving communities of interest are nontraditional. The empirical definition would not only curb abusive districting, but also reduce the influence of undesirable judicial activism over redistricting by binding judges’ discretion to an objectively discernible definition of “traditional” criteria.
In addition to practical gains, the empirical definition is also validated by constitutional theory. Responding to concerns of judicial legislation, we argue that the empirical definition merely defines a central element of redistricting law, which the Supreme Court has failed to, according to the public will and the Court’s requirement of traditionality. The empirical definition also advances a constitutional principle that courts purport, but often fail, to follow: redistricting must not unduly discriminate against any candidate. In the status quo, courts would uphold discriminatory criteria such as incumbent protection if they are applied consistently to all electoral districts in a state. Moreover, the courts' “consistent application” approach would contradict their own precedents by incorrectly deeming certain criteria to be nontraditional, such as the contiguity principle. The empirical definition would neither commit such self-contradiction nor condone abusive redistricting on condition that everyone suffer from it.
Keywords: Gerrymandering, election law
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