An Exercise in Line-Drawing: Deriving and Measuring Fairness in Redistricting

Abstract

Drawing district lines is a central and important task in a district-based election system - the principal American form - because the nature of districts often dictates the electability of candidates, if not the actual results of elections. One of the biggest debates in election law is therefore about policing redistricting to ensure that it is fair. Previous case law - including, most recently, Vieth v. Jubilerer, 124 S. Ct. 1769 (2004) - and academic literature primarily framed the debate over fairness in redistricting as a search for a substantive measure or standard of fairness. This article argues that such a search is doomed to fail, fundamentally because no one can agree on what is fair and because the proposed measures typically attempt to mask or subvert the political effects of redistricting, despite the inherent nature of politics in redistricting.

The article seeks instead to reorient the discussion toward procedural standards and measures of fairness. It sets forth a novel procedural model for constructing a fair redistricting scheme based on compromise among a virtually unlimited number of participants. In this model, the participants' goals and preferences are blended together to derive a unique districting configuration. There are a variety of ways to accomplish this blending, including configuration elimination and meta-elections. The procedural model can also be used descriptively by courts to judge the fairness of existing districting schemes. The benefits of this model include placing redistricting's political decisions in the hands of politically motivated participants by allowing each one to consider its particular preferences, which are incorporated into the ultimate districting scheme. The model also recognizes that it is impossible to ignore the political effects of redistricting, yet does not require any choice among the numerous and conflicting substantive fairness measures and standards. The article concludes by addressing further avenues of research, including the determination of who gets to participate in redistricting, strategic gaming, and opportunity costs.

Keywords: democracy, election law, redistricting, gerrymandering, legal algorithms, Vieth v. Jubilerer

JEL Classification: D72, H70, C60, C70, K41, J70