“Partisan Gerrymandering and the Illusion of Unfairness”

Jacob Eisler has posted this draft on SSRN (forthcoming, Catholic Law Review).  Here is the abstract:

Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test.

This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.

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