Mulroy: Gerrymandering: Courts And Commissions Won’t Save Us

The following is the second of three guest posts by University of Memphis law professor Steve Mulroy, sounding some themes from his fascinating new book, Rethinking US Election Law: Unskewing the System:

This is the second of a series of blog posts discussing key arguments from my new book, Rethinking US Election Law: Unskewing The System.  This post discusses gerrymandering, and why conventional remedies won’t fully fix it.

It’s well-established that gerrymandering is a problem in the U.S. House, one getting potentially worse  as our high-tech mapdrawing tools get ever more precise.  Significantly, “partisan bias,” the deviation between a party’s overall vote percentage and percentage of seats gained, tends to be greatest in states with one-party control of the state House, Senate, and governorship. This is strong evidence that conscious decisions by partisan politicians, at least in significant part, is the product of conscious decisions by partisan politicians.  So is the smoking gun evidence  of such intent by politicians, which, like a lot of the above, applies to state and local redistricting as well.  Gerrymandering is a thing.

The two most commonly advocated remedies are (a) more robust judicial scrutiny of redistricting, and (b) nonpartisan redistricting commissions.  Both are great ideas.  But they won’t fully solve the problem.

Take judicial scrutiny first.  Late-2018 disappointment in the Gill  and Benisek cases gave way to early-2019 renewed hope that either a revived Benisek    or the new Rucho case would finally provide a judicial limit on gerrymandering (or fear that a Kavanaugh court could end such hope).  But given the Court’s consistent reluctance to enter the “political thicket” of redistricting, even the most optimistic view would see the Court intervening in only the most extreme gerrymandering cases, leaving many substantial but non-outlier gerrymanders intact.  And  even the Supreme Court Justices most inclined to police gerrymandering—e.g., Justice Kagan, dissenting in Gill –focus on proof of intentional gerrymandering.  This is seriously underinclusive for the obvious reason that proof of intent can be hard to obtain—start policing gerrymanders, and blatant, smoking gun evidence will start drying up fast—and for the more important reason that many gerrymanders are unintentional.

The 2008 book The Big Sort  popularized the “demographic clustering” thesis, and more recent studies have confirmed it. Democrats over-concentrate in urban areas, “self-packing” and causing “unintentional gerrymanders.”  As long as we insist on electing representatives from relatively compact, equipopulous, single-member districts, Democrats will be underrepresented.  Demographic clustering is a thing, too.

Clustering helps explain why the redistricting commission results have been so mixed.  A comprehensive 2002 study by Bruce Cain showed a median partisan bias of 4.7 percentage points in commission states versus 8.6 points in non-commission states—an improvement, to be sure, but partisan bias remains, significant enough to flip majority control or cause other real representational problems.  Nicholas Stephanopoulos found  a median “efficiency gap” of 12% for legislator-drawn plans, versus 6% for commission-drawn plans; and using congressional over presidential election results as a measure of overall partisan preference, commission-drawn plan showed no statistically significant improvement at all.   Redistricting commissions are undoubtedly an improvement over the status quo, but won’t get us all the way.

Even without demographic clustering, commissions would be only a partial fix, for an even more fundamental reason.  Unintentional gerrymanders are inevitable in any winner-take-all, single-member district system. Carve the polity up into subunits, even with the best of intentions, and there will be a skew of some kind.  Strive mightily to minimize the partisan skew by drawing a fair number of Republican and Democratic districts, and you reduce the number of competitive districts.  This will make the general election a foregone conclusion, lowering turnout, increasing alienation, and incentivizing candidates to play to the extremes of their parties to avoid a primary challenge, thus making across-the-aisle compromises even harder to achieve.  It’s an inherent bug in the system.

The long-term solution is proportional representation, the subject of the next blog post.

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