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Scholarship on Partisan Gerrymandering

An overview of academic literature concerning partisan gerrymandering and related topics.

Published: June 13, 2016

 

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.