Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering

Article excerpt

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 contests and 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 a matter of ordinary politics. 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.

TABLE OF CONTENTS

INTRODUCTION
I. WHY GERRYMANDERS ARE THOUGHT TO
   BE UNCONSTITUTIONAL
II. THE CASE OF PARTISAN GERRYMANDERS
   A. Partisan Gerrymanders as Unconstitutional
      Vote Dilution
      1. Partisan Gerrymanders as Second-Generation
         Vote Dilution
      2. Why the Constitution Has Nothing To Say About
         Second-Generation Vote Dilution
         a. Difficulties with the Concept of Statewide
            Vote Dilution
         b. Difficulties with the Concept of District
            Vote Dilution
         c. Voters Favoring Vote Dilution
      3. Which Form of Vote Dilution Does the
         Constitution Prohibit?
   B. Partisan Gerrymanders as Anti-Democratic
      Measures
   C. Partisan Gerrymanders as Structural
      Constitutional Violations
   D. Partisan Gerrymanders as First Amendment
      Violations
   E. Why Partisan Gerrymanders Are Matters of
      Ordinary Politics
III. WHY RACIAL AND OTHER GERRYMANDERS
   ARE NO DIFFERENT
   A. The Seemingly Hard Case of Racial Gerrymanders
   B. Other Gerrymanders
IV. OBJECTIONS
   A. Not All Majority Preferences Are Intransitive
   B. Our Argument Implicitly Repudiates Reynolds v. Sims
C. Legislative Self-Dealing Simply
   Must Be Unconstitutional
CONCLUSION

INTRODUCTION

Gerrymandering is older than the republic, the first American gerrymander occurring in early eighteenth-century Pennsylvania. (1) The portmanteau "gerrymander" was coined in 1812 to describe a particularly contorted Massachusetts district, one created as part of a larger redistricting plan that Governor Elbridge Gerry had signed into law. (2) Apparently, guests at a dinner party were lamenting the contours of that particular district, noting that it looked like a lizard or salamander, when one guest exclaimed that the district looked more like a "gerrymander. …