I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The fourth contribution is from Nick Stephanopoulos:

I wrote this chapter on partisan gerrymandering for the Oxford Handbook of American Election Law that Gene Mazo wonderfully edited. The first half of the chapter summarizes federal and state cases about gerrymandering as well as (proposed) federal and (actual) state anti-gerrymandering reforms. In my view, the numerical bias threshold that was the linchpin of the Freedom to Vote Act’s anti-gerrymandering strategy in early 2022 hasn’t gotten enough attention. Senate Democrats were just two votes short of eliminating the filibuster and passing the Act, which would have drastically curbed gerrymandering at the congressional level. Here’s the relevant paragraph from the chapter:

The key point about this approach is that it’s mechanical. It relies on quantitative cutoffs, not qualitative judgments about when partisan intent or partisan effect be­come excessive. The FTVJRLA would thus have ensured (as much as any law could) that judicial ideology would be immaterial and congressional plans in all states would be evaluated identically. To illustrate, a pair of scholars applied the FTVJRLA’s test to twenty- three congressional plans. In each case, they were able to conclude defini­tively whether the plan would have been presumptively lawful. (Unsurprisingly, most plans enacted by legislatures would have been invalid, while most commission- drawn plans would have been okay.) Such analysis is entirely infeasible for conventional anti- gerrymandering criteria due to their broad language and need for subjective assessments. In contrast, anyone armed with a few data points can almost instantly de­termine a plan’s status under the FTVJRLA’s test. This automaticity doesn’t make the test preferable to the FTPA’s structural reform. But it does make the test a compelling option if, for whatever reason, redistricting can’t be assigned to commissions.

The second half of the chapter turns to four academic debates about partisan gerrymandering: (1) should partisan intent or partisan effect be the focus of anti-gerrymandering efforts; (2) should partisan effect be conceptualized in absolute or relative terms; (3) to what extent are district plans’ biases driven by par­tisan as opposed to nonpartisan factors; and (4) how does partisan gerrymandering affect the operation of democracy. As I think critics of gerrymandering overly focus on votes and seats, I’ll highlight the passage on the practice’s broader negative impacts. These impacts extend to legislative representation and, ultimately, the policies that shape our lives.

With respect to representation, ideological scores now exist for legislators, calculated using their voting records. These scores can be paired with absolute measures of par­tisan effect to determine how gerrymandering influences the ideological composition of legislatures. The results of this analysis are stark. The more biased a state legislature or congressional delegation is in a Democratic (or Republican) direction, the more lib­eral (or conservative) is the median legislator. At the congressional level, in a perfectly divided state, the median House member is moderately liberal if a Democratic gerry­mander has been adopted, and highly conservative if a Republican gerrymander is in effect. To be sure, these findings are driven by both gerrymandering and legislative polarization. Gerrymandering yields more legislators from the mapmaking party. And contemporary polarization means these extra legislators are highly likely to be liberals if they’re Democrats and conservatives if they’re Republicans. But even if gerrymandering didn’t distort representation as much in an earlier, less polarized era, that’s no longer our world. In modern American politics, gerrymandering has the power to give a moderate electorate either a liberal or a conservative legislature, depending on which party draws the lines.

Gerrymandering also has the power to give a moderate electorate either liberal or conservative policies. Legislatures, well, legislate. They pass bills, and if the executive approves, those bills become law. It thus stands to reason that legislatures skewed to the left (or the right) by Democratic (or Republican) gerrymanders bring about the enact­ment of more liberal (or conservative) policies. Sure enough, that’s exactly what the data show. More pro-Democratic (or pro-Republican) state legislative plans are linked to more liberal (or conservative) sets of state laws. The more tilted a state legislative plan is, the less likely state policy is to match the preferences of the state population. Such congruence between public policy and public opinion is a basic indicator of democratic health. Gerrymandering causes this indicator to flash bright red.