Scholarship on Partisan Gerrymandering

Law Review Articles

Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) [PDF]

In this article, Stephanopoulos and McGhee develop a new standard for measuring partisan gerrymandering called the efficiency gap. The efficiency gap essentially counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats. The authors tout the efficiency gap as a “single tidy number” that captures and quantifies all of the packing and cracking decisions make up a districting plan.

Joshua Butera, Partisan Gerrymandering and the Qualifications Clause, 95 B.U. L. Rev. 303 (2015) [PDF]

Butera argues that the Qualifications Clause of the U.S. Constitution provides a stronger basis for partisan gerrymandering claims that the Equal Protection Clause, which has typically been used in past cases. He claims that partisan gerrymandering effectively creates an additional qualification requiring that a candidate be a member of the favored party. The Supreme Court has forbidden states from creating qualifications beyond those enumerated in the Constitution. Thus, to the extent that drawing districts along partisan lines creates an additional qualification for members of Congress, partisan gerrymandering violates the Qualifications Clause and is unconstitutional.

Stephen Ansolabehere & Maxwell Palmer, A Two Hundred-Year Statistical History of the Gerrymander, Ohio St. L.J. (forthcoming) [PDF]

This paper examines and assesses the geographical compactness of every congressional district across the country’s history. Ansolabehere and Palmer find districts are becoming increasingly less compact, as compared to the original gerrymandering, and that the trend has worsened significantly since the 1970s. The authors also investigate the relationship between non-compact districts and Democratic vote share in Congressional elections, finding that Democratic districts tend to be less compact than their Republican counterparts.

Adam B. Cox and Richard T. Holden, Reconsidering Racial and Partisan Gerrymandering, 78 U. Chi. L. Rev. 553 (2011) [PDF]

Cox and Holden propose a new frame for thinking about the relationship between partisanship, race, and gerrymandering. They push back against the prevailing view that drawing minority-majority districts, as often required by the Voting Rights Act, hurts the Democratic Party. This view, they argue, is based on the mistaken assumption that partisanship and ideology as binary. Assuming that voters are ideologically diverse, the authors show that the strategies for optimal partisan gerrymandering are quite different from the packing and cracking theories that dominate academic literature. In fact, Cox and Holden suggest that, contrary to popular belief, the Voting Rights Act constrains Republican efforts to gerrymander.

Adam B. Cox, Partisan Gerrymandering and Disaggregated Redistricting, (U. Chicago Public Law and Legal Theory Working Paper No. 86, 2007) [PDF]

This article challenges the conventional view that congressional gerrymandering and state legislative gerrymandering pose functionally the same questions. The former affects only a small portion of the federal legislature, while the latter can affect the composition of an entire state legislature. Cox argues that this distinction is crucial since most analysis of why gerrymandering is harmful focuses on its effect on legislative bodies as a whole. He goes on to discuss the shortcomings of contemporary judicial review of gerrymandering claims, and why they mean in terms of the capacity of courts to address these issues going forward.

Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593 (2002) [PDF]

In this article, Issacharoff explores three interrelated issues of gerrymandering. First, he questions why the practice of carving territory between two competing political parties has been treated differently by courts than two rival companies dividing regions between themselves to preserve market share. He then demonstrates how the Supreme Court has promulgated a scenario in which the former has been found to be permissible while the latter is condemned. Finally, the article concludes with a proposal for removing insider political operatives from the redistricting process, which the author claims would foster a more competitive political process.

2015 Common Cause Gerrymandering Standard Competition Winning Submissions

Michael D. McDonald & Robin E. Best, Unfair Partisan Gerrymanders in Politics and Law: A Diagnostic Applied to Six Cases, 14 Election L.J. 312 (2015) [PDF]

McDonald and Best offer a new standard to identify instances of gerrymandering that identifies unequal voting rights as gerrymandering’s harm. Instead of asking whether a district plan harms a party by causing it to win fewer than its “fair” share of seats, the authors suggest a different question: whether a district plan results in unequal voting power for voters of different parties. Using their approach, called the equal vote weight standard, they compare past alleged partisan gerrymandering in six states – California in the 1980s and Florida, Michigan, Ohio, Pennsylvania, and Texas in the 2000s – to determine which instances were truly gerrymanders and which are not.

Jowei Chen and Jonathan Rodden, Cutting Through the Thicket: Redistricting Simulations and the Detection of Partisan Gerrymanders, 14 Election L.J. 331 (2015) [PDF]

Chen and Rodden develop an algorithm that can be used to generate a benchmark districting plan. Using the benchmark plan as a point of reference, they claim, courts can determine the validity of a real district plan that has been called into constitutional question. The algorithm accounts for legitimate redistricting goals like traditional districting criteria, keeping communities of interest together, and facilitating minority representation. The authors apply their algorithm to various simulations as well as the 2012 Florida congressional district plan to demonstrate its usefulness in identifying unconstitutional gerrymanders.

Anthony J. McGann et al., A Discernable and Manageable Standard for Partisan Gerrymandering, 14 Election L.J. 295 (2015) [PDF]

McGann et al. argue that the tools needed to measure partisan gerrymandering already exist. Rather than try to develop an entirely new standard, the authors claim the best way find a suitable gerrymandering standard is to ground existing measures in constitutionally protected rights. To do so, they propose using an existing partisan symmetry theory that links to the constitution through the principle of majority rule. First, they argue that the principle of majority rule can be derived from the Constitution as an individual right. They then show that application of the majority rule principle nationally logically implies partisan symmetry at the state level.