Redistricting and the Territorial Community

University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2012 Redistricting and the Territorial Community Nicholas Stephanopoulos Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Nicholas Stephanopoulos, "Redistricting and the Territorial Community," 160 University of Pennsylvania Law Review 1379 (2012). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. ARTICLE REDISTRICTING AND THE TERRITORIAL COMMUNITY NICHOLAS 0. STEPHANOPOULOSt As the current redistrictingcycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that politicalgerrymandering can be un- constitutional-butit has also rejected every standardsuggested to date for dis- tinguishing lawful from unlawful districtplans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymanderingdisputes by exam- ining how well districts correspond to organic geographic communities. Dis- tricts ought to be upheld when they coincide with such communities, but struck down when they unnecessarily disrupt them. This approach, which I call the "territorialcommunity test," has a robust theoretical pedigree. In fact, the proposition that communities develop geograph- ically and require legislative representationhas won wide acceptancefor 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 t Associate-in-Law, Postdoctoral Research Scholar, and Lecturer-in-Law, Columbia Law School. I am deeply indebted to all the people who read drafts of this Article and, at various stages, offered helpful comments and criticism: Jessica Amunson, Joseph Blocher, Richard Briffault, Bruce Cain, Adam Cox, Christopher Elmendorf, Joey Fish- kin, Owen Fiss, David Fontana, James Gardner, Heather Gerken, Bernard Grofman, Philip Hamburger, Rick Hasen, Gerry Hebert, Samuel Issacharoff, Sanford Levinson, Justin Levitt, Trevor Morrison, Daniel Ortiz, Nathaniel Persily, Dean Robert Post, Paul Smith, Matthew Stephenson, et al. My thanks also to the workshop participants at Col- umbia Law School, Yale Law School, and the Law and Society Conference, where I presented earlier versions of the Article. (1379) HeinOnline -- 160 U. Pa. L. Rev. 1379 2011-2012 1380 University ofPennsylvania Law Review [Vol. 160: 1379 has doomed every other potential redistrictingstandard. The courts have shown for decades that they can compare district and community boundaries, and the social science literature confirms the feasibility of such comparisons. Finally, the political implications of the test's adoption would likely be positive. My empiri- cal analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participationwould rise. It is true that the territorialcommunity test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinaldead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart. INTRODUCTION .............................................. 1381 I. THEORETICAL UNDERPINNINGS ...................... ....... 1389 A. The Underlying Theory .................................. 1390 B. OtherApproaches .................................. 1397 1. Compactness ................................. 1398 2. Competition ............................. ..... 1399 3. Partisan Fairness ......................... ..... 1402 II. THE ARC OF HISTORY...................................... 1404 A. Ascendance ................................. ..... 1405 B. Decline and Fall................................... 1409 C. Comeback. .................................. ...... 1413 1. Reapportionment.............................1413 2. Racial Vote Dilution...........................1416 3. Racial Gerrymandering ......................... 1419 4. Political Gerrymandering.... ................... 1421 5. State Redistricting Law...... ................... 1424 1. DEVELOPING THE DOCTRINE................. ................ 1428 A. Defining the TerritorialCommunity............................ 1430 B. DoctrinalDetails ............................... .... 1435 C. Relation to Other Domains ................................. 1440 IV. MEASURING MANAGEABILITY .......................... ..... 1442 A. Sidestepping the Problemm.. uni........................ 1443 B. The Supreme Court's Experience ........................ 1444 C. The State Courts' Experience..........................1447 D. The PoliticalScience Literature ........................ 1451 E. LingeringAmbiguity................................1455 V. PLAYING POLITICS........................................1456 A. EmpiricalAnalysis ......................... ........... 1457 HeinOnline -- 160 U. Pa. L. Rev. 1380 2011-2012 2012] Redistricting and the TerritorialCommunity 1381 1. Bias and Responsiveness ........................ 1459 2. Minority Representation ........................ 1463 3. Voter Engagement.............. .............. 1464 B. The PoliticalScience Literature ........................ 1468 1. Bias and Responsiveness........................1468 2. Minority Representation ........................ 1470 3. Voter Engagement. ............................ 1471 CONCLUSION................................................1472 APPENDIX................................................... 1474 INTRODUCTION The decennial bloodsport of redistricting is now underway. Across America, state legislatures are busy drawing new electoral district lines based on the results of the 2010 Census. These new district lines, of course, will produce both winners and losers. Some political parties will gain seats while others will lose them. Some incumbents will have their districts fortified while others will be thrown to the wolves. Some minority groups will be able to elect the candidates of their choice while others will be engulfed by the surrounding majority. In typical American fashion, many of the losers of the redistricting wars are seeking redress in court! For better or worse, the doctrine that governs most of their claims-unequal district population, racial vote dilution, racial gerrymandering, retrogression, etc.-is relatively clear. But in one crucial area, that of political gerrymandering,2 the case law is in chaos, at the levels of both theory and practice. The relevant scholarly literature is less confused but equally fragmented. 'For more on the ongoing litigation over electoral district lines since the 2010 Census, see Justin Levitt, Litigation in the 2010 CyCle, ALL ABOUT REDISTRICTING, http://redistricting.ls.edu/cases.php (last visited Feb. 15, 2012). 2 Political gerrymandering is usually defined as the drawing of electoral districts in order (1) to advance one major parry's interests at the other's expense or (2) to protect the incumbents of both parties. Vieth v.Jubelirer, 541 U.S. 267, 271 n.1 (2004) (plurality opinion) (citing BLACK'S LAw DICTIONARY 696 (7th ed. 1999)). While not quarrel- ing with this definition, this Article also conceives of political gerrymandering in a third way: as the drawing of district lines in such a way that organic territorial communities are disrupted. Cf. Whitcomb v. Chavis, 403 U.S. 124, 177 (1971) (Douglas, J., dissent- ing in part and concurring in the result in part ) ("The problem of the gerrymander is how to defeat or circumvent the sentiments of the community."). HeinOnline -- 160 U. Pa. L. Rev. 1381 2011-2012 1382 University ofPennsylvaniaLaw Review [Vol. 160: 1379 There is thus an urgent doctrinal and academic need for new ideas, as well as for some coherence where now there is mostly upheaval. The "territorial community test" that this Article introduces is an attempt to meet that need. A generation ago, in Davis v. Bandemer, the Supreme Court recog- nized a cause of action for political gerrymandering for the first time. However, the standard the plurality announced, focusing on the "con- sistent[] degrad[ation] ... of voters' influence on the political process as a whole,"4 proved hopelessly unworkable. Scholars puzzled over what values the standard sought to capture," while lower courts struggled to apply it in actual cases. A few years ago, in Vieth v. Jubelirer,the Court tackled gerrymandering again, with even worse results. A plurality would have reversed Bandemer and declared the whole field nonjustici- able.' Three dissents proposed separate (and conflicting) approaches for determining when gerrymanders cross the constitutional line. As for Justice Kennedy, ever the Court's agonist, he was unpersuaded by the plurality, but also unpersuaded by any of the dissents, leaving him (and us) in a limbo where a standard for identifying unlawful gerrymanders might exist but has yet to be discovered.' 478 U.S. 109, 113, 125 (1986) (plurality opinion). Id. at 132. 5 See, e.g., Samuel Issacharoff, judging Politics: The Elusive Quest for JudicialReview of PoliticalFairness,

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