"Redistricting and Territorial Community"

Nicholas Stephanopoulos has posted this draft on SSRN (forthcoming, University of Pennsylvania Law Review). Here is the abstract:

As the next redistricting cycle begins, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional - but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to natural geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they needlessly disrupt them.

This approach, which I call the "territorial community test," has a robust theoretical pedigree. In fact, the proposition that communities develop geographically and require legislative representation has won wide acceptance for most of American history. The courts have also employed variants of the test (without scholars previously having noticed) in several related fields: reapportionment, racial gerrymandering, racial vote dilution, etc. The principle of district-community congruence thus animates much of the relevant case law already. The test is largely unscathed, furthermore, by the unmanageability critique that has doomed every other potential redistricting standard. The courts have shown for decades that they can evaluate district and community boundaries, and the social science literature confirms the feasibility of such evaluation. Finally, the political implications of the test’s adoption would likely be positive. My empirical analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participation would rise.

It is true that the territorial community test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinal dead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart.

Posted by Rick Hasen at March 9, 2011 12:36 PM