Draft from Benjamin Plener Cover forthcoming in the Iowa Law Review now up on SSRN:
The popular narrative surrounding gerrymandering frames it as a performative phenomenon—achieved through the intentional manipulations of malevolent partisan actors. Efforts to curb partisan gerrymandering—which I call countermandering—have been performative, in turn, focusing on constraining these bad actors through judicial review or mapmaker neutrality. Yet performative countermandering has had limited success. Judicial and institutional constraints are only sometimes available and are often cumbersome and costly. More important, their utility is inherently limited, because gerrymandering is not only performative. It is also structural—an inevitable product of the American electoral schema itself.
This paper makes the case for structural countermandering. It explains why transformative change to our electoral schema is urgently necessary. It also hypothesizes that such transformative change has no practical chance of success unless it preserves the two-party system. Accordingly, this paper proposes a new electoral schema called MM2. It operates much like the traditional Mixed-Member Proportional (MMP) system used successfully for decades in Germany and New Zealand, but its goal is two-party, not multiparty, proportionality. Like MMP, MM2 preserves personal, geographic representation by selecting most legislators through single-seat districts; and it implements structural countermandering by allocating additional seats to political parties to compensate for any vote-seat distortion these districted elections produce. But whereas MMP allocates these seats to achieve vote-seat proportionality for every party, MM2 allocates these seats to achieve vote-seat proportionality only for the top two parties. By preserving certain core features of American democracy, while structurally nullifying gerrymandering, MM2 presents a promising and feasible prospect for transformative change.