Procedural Integrity and Partisan Gerrymandering

Abstract

In the opening lines of her dissent in Rucho v. Common Cause, Justice Kagan articulated a concern that the practice of partisan gerrymandering endangers the legitimacy of American democracy. The primary task of this article is to flesh out the contours of this concern and articulate precisely how partisan gerrymandering undermines the enterprise of democratic decision-making. The key concept I introduce is a norm of procedural integrity. This norm demands some separation or distance between the purpose(s) motivating the choice of a collective decision-making rule, and the substance of the decisions reached under that decision-making rule. In illuminating the normative appeal of procedural integrity and its necessity to the enterprise of democratic decision-making, this article seeks to make three primary contributions: first, it will help to bring conceptual clarity to the harms posed by partisan gerrymandering in both normative-theoretical terms and in more policy-oriented terms. Second, it will also help to clarify those respects in which partisan gerrymandering should trouble us less. My argument is not a categorical critique of the practice, and I do believe there are circumstances in which partisan gerrymandering would not pose significant harm to democratic principles or democratic legitimacy. Third, my critique of partisan gerrymandering will also suggest better and worse judicial responses to dealing with the problem in the present time. As I will argue, there is much to be commended in the spirit of caution that can be found in past discussion of partisan gerrymandering in various Supreme Court opinions.

The article proceeds as follows: in Part I, one of my main tasks is to flesh out and defend the concept of procedural integrity. My second primary task in Part I is to clarify the qualified nature of my critique. While I argue that procedural integrity is implicit in the idea of democratic decision-making and is an element that contributes to democratic legitimacy, I also argue that there may be contexts in which it is less important — such as moments in time where the policy consequences of particular elections are less important. Nonetheless, I conclude Part I by emphasizing the significance of procedural integrity for contemporary American politics.

In Part II, I further develop the concept of procedural integrity by grounding it in the various arguments put forth in key Supreme Court opinions on partisan gerrymandering, and in some of the key scholarly works on the topic. In Part III, I elaborate on precisely why partisan gerrymandering poses such a threat to democratic legitimacy at the present moment in time. In particular, I identify and elaborate on three conditions of contemporary American politics that both heighten the need for procedural integrity, and that create significant opportunities for lasting damage to be done by partisan gerrymandering. They are, in turn,

(1) The existence of a broad policy space within which partisan conflict has the potential to touch on significant domains of American society;

(2) The mapping of sharp ideological divisions within society onto sharp partisan divisions; and

(3) A signaling by political elites of their willingness to drive forward on significant changes in American politics and society.

Finally, in Part IV, I conclude by discussing how the Supreme Court might proceed given the polarized context of the present moment in time, and the troubling consequences that might flow from unchecked partisan manipulation of electoral districting.

Keywords: Partisan Gerrymandering, Election Law, American Politics, Polarization, Neutral Principles