Nick Stephanopoulos has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:
The Supreme Court is on the cusp of rejecting one of the best ideas for reforming American elections: independent commissions for congressional redistricting. According to the plaintiffs in a pending case, a commission is not “the Legislature” of a state. And under the Elections Clause, it is only “the Legislature” that may set congressional district boundaries.
There are good reasons, grounded in text and precedent, for the Court to rebuff this challenge. And these reasons are being aired effectively in the case’s briefing. In this symposium contribution, then, I develop three other kinds of arguments for redistricting commissions. Together, they illuminate the high theoretical, empirical, and policy stakes of this debate.
First, commissions are supported by the political process theory that underlies many Court decisions. Process theory contends that judicial intervention is most justified when the political process has broken down in some way. Gerrymandering, of course, is a quintessential case of democratic breakdown. The Court itself thus could (and should) begin policing gerrymanders. And the Court should welcome the transfer of redistricting authority from the elected branches to commissions. Then the risk of breakdown declines without the Court even needing to enter this particular thicket.
Second, commission usage leads to demonstrable improvements in key democratic values. The existing literature links commissions to greater partisan fairness, higher competitiveness, and better representation. And in a rigorous new study, spanning federal and state elections over the last forty years, I find that commissions, courts, and divided governments all increase partisan fairness relative to unified governments. At the federal level, in particular, commissions increase partisan fairness by up to fifty percent.
And third, the implications of the plaintiffs’ position are more sweeping than even they may realize. If only “the Legislature” may draw congressional district lines, then governors should not be able to veto plans, nor should state courts be able to assess their legality. And beyond redistricting, intrusions into any other aspect of federal elections by governors, courts, agencies, or voters should be invalid as well. In short, a victory for the plaintiffs could amount to an unnecessary election law revolution.