"Representation Without Party: Lessons from State Constitutional Attempts to Control Gerrymandering"

Jim Gardner has posted this article (forthcoming, Rutgers Law Journal) on SSRN. Here is the abstract:

Since the founding, all gerrymandering of election districts, at both the state and congressional levels, has been accomplished by state actors operating almost exclusively under state law. State constitutions have often served as a first line of defense against publicly disfavored practices, and the treatment of gerrymandering is no exception. The state constitutional record reveals a gradual introduction, diffusion, and evolution of a wide variety of provisions intended to control gerrymandering, including requirements of contiguity, compactness, respect for local political boundaries, and preservation of communities of interest, among others. Indeed, such provisions have been validated by the U.S. Supreme Court and folded into its redistricting jurisprudence under the banner of “traditional districting principles” to which states are constitutionally free to adhere. Yet it is clear that these principles, intended to constrain legislative discretion in drawing district lines, have been spectacularly unsuccessful at restricting partisan gerrymandering, which has become not only routine, but stunningly effective. Why have these provisions failed to impede this almost universally condemned practice?

A close examination of the history of state constitutional attempts to control gerrymandering and the emergence of a state-level jurisprudence of apportionment suggests an answer. The existing panoply of state constitutional controls on redistricting cannot effectively control partisan gerrymandering because it was, and still is, aimed at a completely different problem: ensuring fair representation in the legislature of local economies and the individuals who inhabit them. The principles of representation that emerged at the founding, and that have been carried forward in state constitutions ever since, are rooted in two important beliefs: first, that a community of interest entitled to representation is formed by participation in a shared economy; and second, that such economies are inherently local, and thus properly defined territorially – indeed, by reference to local political units, predominantly counties, which were understood to comprise fundamentally distinct economic units.

On this account of political representation, it is clear why state constitutional apportionment controls are defenseless against gerrymandering motivated by partisan ends: state constitutions to this day contemplate a kind of republican politics in which party plays no overt role, and in which gerrymandering consists of the artificial division of naturally occurring economic communities. Any attempt to control partisan manipulation of representation requires a constitutional system of representation that contemplates some proper role in representative politics for parties and partisanship – precisely what dominant state constitutional conceptions lack. This is not to say that state constitutions therefore lack any resources whatsoever to control partisan gerrymandering. It simply means that any such resources cannot be drawn from "traditional districting principles," but must find their source in more recent principles of equal protection or structural regulation of political parties.

Posted by Rick Hasen at April 11, 2006 09:00 AM