Thinking About the Harms from Gerrymandering

political equality, political parties, redistricting, theory

The following is a guest post from Sandy Gordon (NYU Politics), Doug Spencer (Colorado Law), and Sidak Yntiso (Rochester Poli Sci), discussing their newly published article — “What is the Harm in (Partisan) Gerrymandering? Collective vs. Dyadic Accounts of Representational Disparities” — in the (peer-reviewed) Journal of Legal Analysis.

As Texas, Missouri, and (likely) California plunge the country back into the latest round of redistricting wars, the overwhelming majority of coverage and commentary has focused on the collective consequences of re-gerrymandering: how will these maneuvers affect majority control of the House of Representatives come 2027, and how do they affect the relationship between the partisan makeup of the states in question and the partisan composition of their respective delegations to Congress? 

In a deeply polarized country with highly nationalized politics, the focus on collective consequences is understandable. And yet lost in the discussion is the impact of these maneuvers on the “dyadic” relationship between individual voters and their representatives. A dyadic perspective considers questions such as whether legislators share the values of their own constituents, whether they are competent, and whether they work hard for their communities. Not only are these the criteria by which many citizens judge their democracy; dyadic conceptions of representation also resonate with the geographic organization of Congress and the Constitution’s emphasis on individual, rather than collective, rights and harms. 

In our new article, “What is the Harm in (Partisan) Gerrymandering? Collective vs. Dyadic Accounts of Representational Disparities,” published in the Journal of Legal Analysis, we explore a general account that centers the dyadic relationship of voters and their representatives in debates about the fairness of districting plans. 

When is a Map Fair to Voters?

To capture the intuition, consider an imaginary state composed of nine voters—five Republicans and four Democrats—evenly divided among three districts. Three maps are proposed: A, B, and C. In Map A, Republicans have a 2–1 majority in Districts 1 and 2 and Democrats have a 1–2 majority in District 3. In Map B, Republicans have a 3–0 majority in District 1 and a 2–1 majority in District 2, while Democrats enjoy a 0–3 majority in District 3. In Map C, Republicans have a 3–0 majority in District 1, and Democrats a 1–2 majority in Districts 2 and 3.

Focus for the moment on a comparison between Maps A and B. Which is more fair? If all that matters is how closely the partisan breakdown of the elected assembly matches that of the electorate, there’s no meaningful difference between the two partitions: Both may be expected to generate a delegation consisting of one Democratic and two Republican legislators. And with nine voters and three legislators, this is as close as you can get to proportionality—one possible criterion for collective fairness. 

From a dyadic perspective, however, the maps are not the same—but why they differ depends on what voters ultimately care about. In Map A, six out of nine voters have a representative from their own party, while in Map B, eight out of nine do. So, if voters only care about having a representative who shares their values, Map B is a clear winner. But suppose voters are apprehensive of lopsided majorities—perhaps because these encourage shirking by incumbent legislators. In that case, Map A might be preferable.

Now look at Map C: no matter what collective or dyadic criterion you employ, this third map is unfair.

Our paper generalizes the intuition from these examples by presenting a stylized formal model that grounds the welfare of voters in terms of (a) the correspondence between their values and those of their legislator (as captured by co-partisanship); (b) legislator competence; and (c) legislator incentives to work hard on behalf of their constituents. 

The model yields measures of “representational disparity” that capture how fairly different groups of voters (e.g., Republicans and Democrats) are treated under a given map. As with collective metrics such as the efficiency gap and partisan bias, the measure can be tested across ensembles of millions of alternative maps, revealing whether an enacted plan is a true outlier or simply reflects the geographic distribution of a state’s voters.

Critically, these measures can be “tuned” to reflect features of the underlying political environment and the user’s commitment to different, potentially contradictory values. For example, if matching legislator and constituent partisanship is the overriding concern, then a map that makes districts maximally non-competitive might come closest to achieving that objective. But if motivating legislators to work hard on behalf of a broad range of constituents matters, then the measure will reward more competitive plans.

What the Evidence Shows

Relationship to existing measures. While our approach forges new conceptual ground, our measures will generally be correlated, though imperfectly so, with existing measures like partisan bias, efficiency gap, and declination. But situations may arise where our dyadic commitments lead to different substantive conclusions than collective ones would.

Examples from the paper. Using examples from a handful of states, our article shows that traditional metrics often miss the mark. For instance, in Massachusetts, Republicans rarely win congressional seats—not necessarily because of gerrymandering, but because their voters are too evenly spread out. Dyadic analysis reveals more nuanced harms: while all maps disadvantage Republicans collectively, some alternatives give them better representation at the district level. By contrast, in Florida and Pennsylvania, enacted maps emerge as extreme outliers under both collective and dyadic metrics, making the case for unfairness much clearer.

Analyzing the 2025 Texas and California Maps. Using the approach described in our article, we conducted an outlier analysis to assess the extremity of the enacted Texas and proposed California maps on dyadic representational grounds under two different “tunings” of representational disparity. Here’s a comparison of the 2021 and 2025 Texas maps with an ALARM ensemble of simulated maps. (In all graphs, the solid vertical line indicates zero disparity.)

As the figures indicate, the 2021 Texas map was already an extreme outlier irrespective of how the measure is tuned. The new map is even more extreme. 

Here’s our analysis of California: 

Our analysis suggests that according to the first version of the measure, which prioritizes matching constituent and legislator partisanship, the 2021 California map is not an outlier, but the 2025 proposed map would be. According to the second version, which rewards competitiveness, both maps are extreme outliers, but the 2025 plan would be worse. 

Why This Matters

It is certainly not clear (to us) that single-member districts are the most effective way to select our representatives. Yet it is the system we have, and a system of representation inescapably rooted in geographic districts must be evaluated using diagnostics that treat districts and their boundaries not merely as an inconvenience but as an intrinsic feature. Gerrymandering isn’t just about partisan balance sheets—it’s also about whether citizens can trust that their voices are heard in the halls of power.

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Future of Third Circuit’s Ruling on Misdated Ballots?

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The National Law Review has just published a story about the Third Circuit’s decision last month to invalidate on Anderson-Burdick grounds Pennsylvania’s law requiring the rejection of timely submitted mailed ballots that are misdated by the voters. Will a cert petition be filed in the case? If so, will it be granted? Although in January SCOTUS declined to consider a case that challenged the same rule under the statutory materiality provision, that case sustained the validity of the rule against the statutory challenge. Given instead that in this case the rule was invalidated and specifically on Anderson-Burdick grounds–and given especially that there has been some interest among judges in revisiting the Anderson-Burdick balancing test–what’s the possibility that SCOTUS would take this case for the specific purpose of that revisiting?

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Fusion Voting in Wisconsin

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The University of Wisconsin Law School, in conjunction with other organizations, is hosting what looks like will be a great event. Parties, Power, and Possibility: Revisiting Fusion Voting in Wisconsin will be held on Friday, November 14, 2025. It has a superb lineup of participants:

If the goal of fusion voting is to counteract polarization and the election of more extreme candidates, I’m personally skeptical of its potential to achieve those benefits–at least in a state like Ohio, with which I’m most familiar. For example, I don’t think fusion voting would have made a difference in Ohio’s US Senate elections in either 2022 or 2024. In other words, even if Tim Ryan in 2022 and Sherrod Brown in 2024 had appeared on the ballot as the nominee of a “moderate” party as well as being a Democrat, I doubt that the outcome of either election would have been any different. In each case, the Trump-endorsed Republican nominee (Vance in 2022, Moreno in 2024) still most likely would have won in my judgment.

But Wisconsin is a different state than Ohio, purple instead of red. It seems more likely that fusion voting might have made a difference in Wisconsin’s 2022 US Senate election. Ron Johnson won that race by only one percentage point, 50.41% to 49.41%, and Mandela Barnes, the Democrat. If Barnes had been co-nominated by a “moderate” party, that might have been enough to cause him to pull ahead of Johnson.

In any event, I think it’s great that there is a Wisconsin-specific conference focusing on the possibility of fusion voting in that state. I’ll be especially interested to hear if any empirical data is presented at the conference to shed light on what potentially effect it actually would have.

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“The Australian to Save American Democracy -And America’s Potential to Return the Favour”

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The written version of my Miegunyah Lecture has been published and posted on SSRN. Here’s the abstract:

This is the text of US constitutional and election law scholar Professor Edward B. Foley’s Miegunyah Distinguished Visiting Fellow Lecture delivered at the University of Melbourne on 30 July 2025. In the lecture, Professor Foley advocates for ‘centripetal’ forms of voting to be used to help depolarise the intense partisan competition that is experienced in the United States. Professor Foley’s lecture draws on University of Melbourne’s Professor E.J. Nanson’s pioneering methods of preferential voting, outlined in pamphlets such as Methods of Election (1882) and The Real Value of the Vote (1900), that were proposed at the turn of the twentieth century, and which proposed greater centripetal power than the current preferential voting methods used in Australia. You can also find a recording of the lecture at this link: https://www.youtube.com/watch?v=1ucbAxL7W0w.

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DOJ’s new lawsuit seems to show DOJ is violating federal law

Department of Justice, legislation and legislatures, voter registration

Justin again. On Wednesday, Ned linked to two new lawsuits DOJ filed in Oregon (here’s the complaint) and Maine (here’s the complaint) over DOJ’s demand to get full copies of the voter files.  Though it’s never a great feeling to be sued, I’m glad these suits were filed.  Because I think the litigation is likely to show exactly why Oregon and Maine have been right to push back against DOJ’s demands.  The Privacy Act still seems like a giant red flag to me.

Leave aside, for a second, the flawed factual predicate in both complaints, which includes an insinuation of wrongdoing based on a repeatedly debunked apples-to-oranges methodology, comparing a pinpoint number of registrants on the file to a multi-year census estimate of eligible locals.  (A summary of the problems with the comparison: these aren’t measures of the same information, they’re not measures of the same time range, they’re comparing a snapshot to a survey estimate, and they don’t account for the law.  Which is why a federal court said 7 years ago that the disparate data sets do not allow for an accurate comparison and did not amount to credible evidence of wrongdoing, and why the 11th Circuit affirmed that conclusion.) 

The real fight here isn’t over inadequate list maintenance.  It’s about getting access to the lists themselves.  

I’ve written about these DOJ demands for the lists before (for starters, here and here), trying to explain why they’re not particularly useful in enforcing the parts of the statutes the Civil Rights Division says it needs them to enforce.  There’s new reporting that indicates DOJ may be after the information for an entirely different reason: to give it to DHS for immigration probes (though that’s likely to be a conspicuously target-poor environment for DHS).  The Civil Rights Division hasn’t mentioned that little detail in its demands to the states.

But the real sticking point for me is the Privacy Act, which I think affirmatively precludes the DOJ from getting the voter files until it answers some basic questions about who would have access to what information for what purpose.  (Indeed, the Privacy Act makes it a federal crime to collect the info first and explain later.)

The DOJ has been demanding these files with such confidence that I’ve been wondering whether there’s some not-visible-to-outsiders internal document that relieves those Privacy Act concerns.  Both the Oregon complaint and the Maine complaint begin to lay out DOJ’s response to why it’s complying with the Privacy Act.  And if what they said is all they got, that’s an awful lot of confidence without the substance to back it up.

In the complaints, most of the DOJ responses on the Privacy Act (including their citation of a website for voluntary reports by individual citizens of civil rights violations) are non sequiturs: they just don’t answer the question.  But the DOJ does mention the “systems of records notices” – the disclosure required under the Privacy Act – that it thinks authorize grabbing the voter files.  (Here, here, and here.)  There’s only one that’s even plausibly relevant: it’s the one that allows the Civil Rights Division (CRT) to keep general info on targets, victims, and witnesses associated with their cases.  The notice is pretty straightforward, and its roots go back to 1975 (when the information was stored “on index cards and file jackets”). 

It’s not hard to understand why law enforcement needs to keep some information on people for cases involving people.  Here’s the unedited description of the “individuals covered by the system” that DOJ has provided to the public:

These persons may include: Subjects of investigations, victims, potential witnesses, individuals of Japanese ancestry who were eligible, or potentially eligible, for restitution benefits as a result of their evacuation, relocation, or internment during World War II, and representatives on behalf of individuals and other correspondents on subjects directed or referred to CRT or other persons or organizations referred to CRT in potential or actual cases and matters of concern to CRT, and CRT employees who handle complaints, cases or matters of concern to CRT.

You know who’s not in that list?  Voters who are innocent bystanders for all of this nonsense.  The 3 million people in the Oregon voter registration file and the 1 million people in the Maine voter registration file aren’t targets, victims, or witnesses of a civil rights investigation.  Before the DOJ “explained” itself, I was wondering where DOJ ever notified the public that it’s going to be collecting all those voters’ information.  After the DOJ “explained” itself, I’m still left wondering where DOJ ever notified the public that it’s going to be collecting all those voters’ information. 

Read the public notice for yourself, and see whether you think it offers fair notice that the Civil Rights Division plans on building a database to collect the personal information of every voter in the country, including not just SSN digits and dates of birth but party registration.  The notice DOJ issued decades ago (and updated periodically in the interim) isn’t built to authorize fishing expeditions.  It’s built for individual records pertinent to an individualized investigation. Because that’s actually the individualized information DOJ needs when it’s doing its real job.

I suspect that the states resisting DOJ’s demands are going to respond, in part, by saying that they’ve got the right (and responsibility) to decline to abet DOJ’s violation of federal law.  That, in turn, means that the DOJ is likely to have to defend its compliance with the Privacy Act in court, with federal judges probing whether they’ve done their homework.  And that is a resolution I think Oregon and Maine – and their citizens – are likely to welcome. 

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