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.