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Against Partisan Gerrymandering

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Against Partisan Gerrymandering The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering Daniel D. Polsbyt and Robert D. Poppertt The health of democracies, of whatever type and range, depends on a wretched technical detail-electoral procedure. All the rest is secondary.' In the aftermath of the decennial census, reapportionment and its wayward stepchild gerrymandering have again become topics of the hour. In 1991 or 1992, based on the new census, state legislatures will establish new boundaries for congressional and state legislative districts. 2 In order to conform to the constitutional mandate that districts have equal populations 3-"one person, one vote" 4-states will have to redraw district lines to account for population shifts that have accumulated over the past ten years. Yet reapportionment, made necessary by fidelity to democratic principles, also will bring with it gerryman- dering. Gerrymandering, broadly speaking, is any manipulation of district lines for partisan purposes. 5 There are different varieties of gerrymandering, includ- ing racial gerrymandering, 6 remedial racial gerrymandering, 7 and collusive bipartisan gerrymandering. 8 Partisan gerrymandering, the most common kind t Daniel D. Polsby is the Kirkland & Ellis Professor of Law at Northwestern University. tt Robert D. Popper is an associate at Orrick, Herrington & Sutcliffe in New York. Many people helped and challenged us as we prepared this article, but particular, grateful acknowledgement must be made to at least the following: Lynn Baker, Pamela Karlan, Bill Stuntz, and the participants in the University of Virginia Legal Studies workshop; Michael Fitts, Michael Moore, Stephen Morse, Jerry Newman, Menachim Speigel, and the participants in the University of Pennsylvania Law School workshop; Robert Bennett, Robert Burns, Mayer Freed, Mark Grady, David Haddock, Gary Lawson, and Victor Rosenblum of the Northwestern law faculty; John F. Beukema of the Minnesota Bar; Bruce Cain of the University of California political science faculty; and Brendan Duffy of Raymond Marketing, Inc. As always, the conventional absolutions apply. 1. JOSE ORTEGA Y GASSET, THE REVOLT OF THE MASSES 158 (1932). 2. Under Article I, Section 4 of the Constitution, state legislatures exercise the districting power subject to supervening congressional regulation. 3. The constitutional basis for this requirement is the Equal Protection Clause of the Fourteenth Amendment for state elections, or, in the case of federal elections, Article I, Section 2 of the Constitution, which provides that representatives shall be elected by "the people." See Reynolds v. Sims, 377 U.S. 533 (1964) (state legislatures); Wesberry v. Sanders, 376 U.S. 1 (1964) (federal districts). 4. Gray v. Sanders, 372 U.S. 368, 381 (1963); see also Reynolds, 377 U.S. at 558. 5. See, e.g., Richard L. Engstrom, The Supreme Court and Equipopulous Gerrymandering: A Remaining Obstacle in the QuestforFair and Effective Representation, 1976 ARIZ. ST. L. J. 277, 278-280. 6. Gomillion v. Lightfoot, 364 U.S. 339 (1960). 7. Race-conscious line-drawing is one of the remedies available under the Voting Rights Act of 1965, 42 U.S.C. § 1973 (1988); see United Jewish Org. of Williamsburg v. Carey, 430 U.S. 144 (1977). 8. See e.g., Gaffney v. Cummings, 412 U.S. 735 (1973) (upholding bipartisan gerrymandering accord between Democratic and Republican members of Connecticut's legislature). Other kinds of districts, including school, hospital, tax or judicial districts, also can be gerrymandered. Yale Law & Policy Review Vol. 9:301, 1991 and the subject of this paper, is undertaken by the political party in control of a state legislature to help itself and injure its competitor. It should not be surprising that redistricting is the occasion for so much gamey partisan brawling, for in the districting game legislators are fighting for their own political lives and that of their party, just as surely as in an election campaign, but with more durable results. Depending on how district lines are drawn, a party with only a minority of the popular vote can assert control over a majority of seats in the state assembly and over its state's delegation to the national House of Representatives. More typically, a party that enjoys only a small majority in popular support over its principal competi- tor will, through its control of the districting process, translate this popular edge into preemptive institutional dominance. Potential remedies for gerrymandering, as Bernard Grofman has pointed out, come in two varieties: political and formal.9 A political remedy, for example, might require that a redistricting plan satisfy a panel of bipartisan commissioners, or that it be adopted by a supermajority of the legislature. The remedy we propose is formal. In addition to adhering to criteria which mandate that representational districts be composed of contiguous territories and have equal populations, we suggest that those who define district boundaries must also be required to respect a third criterion, the constraint of compactness. Without the ability to distend district lines so as to include or exclude blocks of voters whose political loyalties are known, it is not practically possible to gerrymander. The diagnostic mark of the gerrymander is the noncompact district. Anyone who eyeballs a few legislative district maps quickly will learn to recognize gerrymanders, although admittedly with imper- fect accuracy. But one need not rely on seat-of-the-pants reckoning to find the sort of noncompactness that implies gerrymandering. A number of mathemati- cal measures of compactness exist, some of which are no more difficult to apply than the "one person, one vote" standard of Reynolds v. Sims.1 o These measurements are useful because they correspond closely to a mapmaker's practical ability to gerrymander districts. One of these compactness measures, as we show in part III.D, is the best way to measure the kind of non-com- pactness that is required for a workable gerrymander. 9. Bernard Grofman, Criteriafor Districting:A Social Science Perspective, 33 UCLA L. REv. 77, 79, 98-99 (1985). 10. 377 U.S. 533, 579 (1964). The Third Criterion I. GERRYMANDERING AND POLITICS At the time of Elbridge Gerry, the eponymous gerrymanderer," and for almost 200 years until Baker v. Carr," abusive partisan districting was a relatively simple matter because there was no constitutional requirement that districts be equinumerous. 13 Malapportionment was so powerful a tool for diluting the opposition's votes that partisans needed no other.' 4 With the advent of "one person, one vote" and periodic reapportionment, the focus of partisan districting changed. Creative gerrymandering now has replaced the older strategy of malapportionment through legislative inaction. Although districts must be equal in population, they need not have any particu- lar shape or character, and they still may be manipulated to suit partisan needs. Happily for partisans, the apportionment revolution coincided with technical innovations in computers and in market research that made modern gerry- mandering both easy and effective.' 5 Professional advice on effective gerry- mandering is now a staple of the political consulting business. 6 The techniques for gerrymandering are simple and widely understood. In single-member districts, only one legislator can win an election. Any support beyond fifty-percent-plus-one is therefore superfluous, or, from the party's point of view, "wasted." The partisan mapmaker seeks to draw lines which concentrate the opposition's electoral support in just a few districts (called "packing" or "stacking"), while at the same time creating many more districts 11. ELMER GRFFrrH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER 19 (1907). 12. 369 U.S. 186 (1962). Baker established the justiciability of constitutional challenges to malappor- tioned districts. 13. Until 2 U.S.C. § 2a was amended in 1929, there was a statutory requirement that districts be equal in population and be compact, but both requirements were routinely ignored. See RicHARD CORTNER, THE APPORTIONMENT CASES 15 n.32 (1970); see also, Colegrove v. Green, 328 U.S. 549, 551, 555 (1946). Since 1929, no equivalent statutory provision has been on the books. 14. See infra part III.A. 15. Gerrymandering software for desktop computers increases in power and sophistication almost by the month, with correlative augmentations in the capabilities of those with the political authority to draw district boundaries. See Anderson & Dahlstrom, Technological Gerrymandering, 22 URBAN LAWYER 59, 73-76 (1990); William E. Schmidt, New Age of Gerrymandering:Political Magic by Computer?, N.Y. TIMEs, January 10, 1989 at Al; Mitch Betts, Gerrymandering Made Easy in 1990, COMPUTERWORLD, Aug. 28, 1989, at 1. The generation of computers which drew the gerrymanders of the 1980s are almost certainly obsolete. Now, for example, there is the Topographical Integration Geographic Encoding and Referencing (TIGER), the U.S. Census Bureau's "new, high-tech map of America ... [that] means that anyone can quite cheaply buy a detailed computerized map of any state-accurate down to street lev- el-loaded with demographic data. Combined with other new technology this means that almost anyone will be able to draw their own political maps." See Drawing Salamanders, ECONOMIST, Jan. 6, 1990, at 26, 30. 16. See, e.g., David Anderson, Note, When Restraint Requires Activism: Partisan Gerrymandering and the Status Quo Ante, 42 STANFORD L. REV. 1549, 1557 (1990) ("[In
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