Stopping Gerrymandering by Respecting Territorial Communities

As Rick noted, the Alaska Supreme Court held on Friday that “partisan gerrymandering is unconstitutional under the Alaska Constitution,” specifically, its equality guarantee in Article I, Section 1. This ruling is notable in at least two respects. First, it’s based on a general constitutional provision—“equal rights, opportunities, and protection under the law”—rather than a specific prohibition of partisan gerrymandering. In Rucho v. Common Cause, of course, the U.S. Supreme Court decided that partisan gerrymandering is nonjusticiable under the general provisions of the U.S. Constitution. The Alaska Supreme Court explicitly disagreed with the U.S. Supreme Court, declining “to follow the [U.S.] Supreme Court’s lead.”

Second, the Alaska Supreme Court operationalized its partisan gerrymandering ban using the “territorial community” test that I proposed in this 2012 article. As the court put it, “[t]o allow for meaningful review in redistricting cases, we formally adopt Professor Nicholas O. Stephanopoulos’s ‘community of interest’ definition,” under which a territorial community “is (1) a geographically defined group of people who (2) share similar social, cultural, and economic interests and (3) believe they are part of the same coherent entity.” The territorial community test calls for the invalidation of districts that unnecessarily disrupt communities by fusing, fragmenting, or otherwise subverting them. Using this test, the court struck down a state senate district that unnecessarily divided the Eagle River community in Anchorage, instead combining part of Eagle River with the distinct community of Muldoon.

By operationalizing its partisan gerrymandering ban using the territorial community test, the Alaska Supreme Court swam against the tide of recent state court rulings in this area. Most of these rulings have focused directly on partisan intent and partisan effect, considered statewide and demonstrated primarily through empirical evidence. The Alaska Supreme Court’s decision most reminded me of the Pennsylvania Supreme Court’s 2018 decision nullifying the state’s congressional plan because of its blatant disregard for traditional redistricting criteria. Both of these decisions emphasized noncompliance with nonpartisan requirements and didn’t fixate on empirical evidence of partisanship. This approach is appealing because it demands less empirical sophistication on the part of courts, it builds on precedent (especially in Alaska), and it doesn’t force courts to accuse other institutional actors of partisanship. On the other hand, adept gerrymanderers may be able to achieve their partisan aims while still designing maps that reasonably satisfy criteria such as compactness, respect for political subdivisions, and respect for territorial communities. If and when courts using this approach are confronted by such maps, they may have to complement their analysis with empirical evidence of partisanship. Otherwise these courts’ efforts to stop gerrymandering may prove too easy to circumvent.

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