Academic journal article William and Mary Law Review

A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals

Academic journal article William and Mary Law Review

A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                           1523 I. OUTLIER ANALYSIS AND AUTOMATED PLAN GENERATION      1528  A. Getting to a Reasonable Partisan Bias Standard     1538  B. Evaluating Existing Measures of Partisan Fairness  1540  C. Optimizing Plans Along All Dimensions of Partisan     Fairness                                           1548  D. Applications of PEAR in Redistricting              1555 CONCLUSION                                             1556 

INTRODUCTION

Partisan gerrymandering has moved to the front burner of political reform once again. As the origin of the term "gerrymander" reminds us, partisan bias in redistricting has been a serious concern in the United States since the early nineteenth century. (1) When Baker v. Carr lowered the doctrinal barrier to more serious judicial scrutiny of redistricting efforts, (2) many initially hoped and expected that the Court would eventually find a way to prohibit, or at least severely limit, the practice of drawing district lines for partisan advantage. (3) That early optimism, however, faded when the Court failed to endorse any specific partisan bias test in Davis v. Bandemer (4) and Vieth v. Jubelirer, (5) even as it reaffirmed at the same time that partisan gerrymandering claims were justiciable.

The wildly fluctuating interests of politicians in limiting partisan gerrymandering illustrate the hoary political principle that "[w]here you stand depends upon where you sit"; that is, political actors tend to oppose redistricting reform when they control the line-drawing process and to favor it when they do not. (6) Republicans, historically more skeptical about political reform than the Democrats, nonetheless led a decade-long charge in California to fix the state's line-drawing process after a Democratic governor and state legislature imposed a particularly contentious redistricting on them in 1982. (7) By comparison, Democrats in the immediate post-Baker period were more conflicted about legislative redistricting, in part because they controlled more state legislatures than the Republicans. (8) Hence, in the 1980s, the Democrats were plaintiffs in Davis v. Bandemer (9) and defendants in Badham v. Eu. (10) By the 1990s, political conditions further dampened partisan redistricting concerns for both parties. (11) Divided government had become more prevalent in the states, blocking partisan designs and incentivizing incumbency protection plans. (12) The focus was redirected instead to how redistricting contributes to lower levels of competitiveness and bipartisan incumbent lockups. (13)

Political circumstances and party positions have changed again in recent years. (14) Partisan polarization has increased sharply, raising the stakes of political contestation for state and federal offices. (15) Thirty-seven states still allow their state legislatures to redraw congressional lines. (16) The Republicans, not the Democrats, currently dominate the state legislatures and governorships. (17) The concerns of the Democratic Party's good government faction in reforming the redistricting process now more closely align with the interests of the Party's pragmatists in hedging against the likely Republican advantage in the 2021 round of legislative redistricting. (18) Since the probability of a partisan plan increases with single-party control of the executive and legislative branches and decreases with divided government, (19) any imbalance in single-party control at the state level could easily translate into decades-long electoral advantage for the Republicans in the future. The short-term political answer for the Democrats is to win back enough state legislative seats and governorships in order to block adverse partisan plans in 2021. (20) But given heightened partisanship and increasing exploitation of voting laws for electoral advantage in the current era, there is also a renewed interest in finding ways to curb partisan gerrymandering. …

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