Academic journal article Harvard Law Review

A Federal Administrative Approach to Redistricting Reform

Academic journal article Harvard Law Review

A Federal Administrative Approach to Redistricting Reform

Article excerpt

I. INTRODUCTION

Partisan gerrymandering is a tradition as old as redistricting itself. For more than two hundred years, the task of drawing congressional district boundaries has fallen to state legislatures, which until half a century ago exercised almost unlimited discretion over the redistricting process. Even after the rise of "one person, one vote" (1) and the enactment of the Voting Rights Act of 1965 (2) (VRA), the ability of partisan state legislatures to manipulate the redistricting process for political gain has remained largely unchecked. The political nature of congressional line-drawing presents at least two potential problems: incumbent entrenchment and partisan bias. These problems have become increasingly acute in recent decades, an era marked by high incumbent reelection rates and increasing polarization in Congress. (3) Despite growing concerns about partisan manipulations of the redistricting process, the federal judiciary appears unlikely to make serious efforts to curb partisan gerrymanders in the foreseeable future. Although partisan gerrymandering remains nominally unconstitutional, the Supreme Court's decision in Vieth v. Jubelirer (4) effectively renders partisan gerrymandering claims nonjusticiable. (5) Vieth thus leaves reformers to turn to nonjudicial options to address the problem of political self-dealing during the redistricting process.

Proposed solutions run the gamut from the creation of independent redistricting commissions (6) to popular referenda on proposed redistricting plans. (7) Most of these proposals have focused on state-level action, usually through legislation or constitutional amendments, rather than through the adoption of a uniform federal standard. Although some scholars have suggested federal legislation requiring states to create independent commissions, (8) there has been surprisingly little discussion of a larger role for the federal government in the congressional redistricting process. (9) The reasons why this possibility has been largely ignored are easy to imagine: states have exercised nearly exclusive control over congressional redistricting since the Founding; (10) state legislators may be more familiar with the idiosyncratic cultural, political, and geographic factors that may define "natural" representative districts; and, perhaps most importantly, arguments for greater federal involvement in many issues, especially elections and local representation, have proven unpopular in recent decades. Despite their initial appeal, however, these reasons do not categorically rule out a role for the federal government. In fact, limited federal involvement could ameliorate some of the most glaring partisan abuses of the redistricting process, while reserving primary control of congressional redistricting for the states.

This Note advocates the adoption of limited, selective federal oversight of congressional redistricting plans created by partisan legislatures, with an eye toward encouraging the use of independent redistricting commissions. (11) It suggests the creation of a federal agency authorized to review partisan redistricting at the request of a substantial minority of a state's legislature, (12) while providing a safe harbor for states that use independent agencies to redraw district lines. Providing "opt-in" (13) review reduces the risk of partisan gerrymandering by mimicking divided government and forcing compromise on otherwise biased congressional maps. (14) Although the courts have not been able to settle on an appropriate measure of partisan bias, Congress and the proposed agency would be free to expound one (15)--and there would be nothing to stop a court reviewing an agency decision from applying the same standard.

Part II proceeds to lay out the basic problems of "partisan" and "bipartisan" gerrymanders. Part III then reviews various approaches to redistricting reform, including judicial review and independent commissions, and finds that most have failed to address partisan gerrymanders in a comprehensive way. …

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