Jamie Piltch and Aaron Goldzimer have a new piece in the Wash. U. L. Rev. Online:
Rucho v. Common Cause and the failure to pass H.R. 1 have left national gerrymandering reform on life support. At present, however, states committed to creating fair maps limit themselves to considering their own political makeup when doing so. This internal approach risks the possibility that states committed to fairness subvert that value, as their refusal to consider national political data and other states’ maps may lock in an unfair map nationwide if other states gerrymander. This internal focus therefore also creates the possibility that reform-minded states fail to protect their voters’ interests in Congress.
This Essay proposes a novel path forward: a new redistricting criterion that allows states to prioritize national partisan fairness, rather than statewide fairness. Federalisms new and old justify this new criterion on a theoretical basis, while the seeming impossibility of national reform in Congress or federal courts justifies it on a practical one. The Essay explains how the consideration of other states’ maps would allow states to make the national Congressional map fair on net and walks through the mechanics necessary for this criterion’s implementation.
As the authors note, this really works only if a state draws congressional lines after most other states with sizable populations are done, and I’m skeptical that the race to be last would be feasible in a world with mid-decade redistricting possibility. (Or, if feasible, that it wouldn’t have unanticipated consequences of its own.) Which means I still think national legislation makes the most sense problem of national scale. But if, as they say, national legislation isn’t available . . . .