Post-election, time to rethink redistricting

America’s electoral system has many features that its backers would call quirks, but that its critics would describe as grave flaws. The Electoral College focuses presidential candidates’ money and attention on a handful of contested “swing states.” Each state comes up with its own unique ballot design and vote-counting method. Spending on commercials spirals inexorably upward despite campaign finance reform laws. Perhaps worst of all, gerrymandering is rampant in almost every state in the country. Whichever party controls the state legislature ruthlessly manipulates the electoral map in order to protect incumbents from almost any challenge and to “crack” and “pack” voters who favor the opposing party.

For years, opponents of gerrymandering tried to put a stop to the practice through litigation. Voters in states like Pennsylvania — where in 2000 the legislature redrew congressional districts so that 12 of the state’s 19 representatives would be Republicans, even though the state as a whole went for Gore — sued to have gerrymandering held unconstitutional as a violation of the Equal Protection Clause. Unfortunately, the Supreme Court thwarted these efforts with its decision last spring in Vieth v. Jubelirer. The Court ruled that Pennsylvania’s redistricting plan did not violate the Constitution — and four members of the Court went so far as to say that no partisan gerrymander could ever be found unconstitutional.

Is there any hope for opponents of gerrymandering after Vieth? At least for the time being, it is clear that attempts to combat the practice through litigation will meet with little success. Another option might be to lobby state legislatures to change their approaches to redistricting and to grant control over the process to nonpartisan commissions that would shape districts on the basis of compactness and geographical coherence. Iowa has taken this route, with the result that it now has about as many up-for-grabs congressional districts as California. Alternatively, opponents of gerrymandering could try to convince Congress to seize control of congressional redistricting across the country. Article I of the Constitution endows Congress with the authority to do so; Congress has twice passed anti-gerrymandering laws in the past, in 1901 and 1911.

The problem with these approaches, of course, is that they require large numbers of legislators to vote against their own self-interest. Gerrymandering may be bad for democracy, but it’s a godsend for members of Congress, who enjoy re-election rates above 90 percent and almost never have to worry about viable challengers emerging from their finely crafted districts. Any serious anti-gerrymandering proposal would weaken incumbents’ hold on power, while also undermining the majority’s efforts to redistrict the opposing party out of its seats. Politicians know this, which is why no national anti-gerrymandering law has been passed since the Progressive Era.

What opponents of gerrymandering should clamor for, then, is a law requiring congressional districts to be named rather than numbered. Currently, each district is known by nothing more than a numeral, e.g. Pennsylvania Congressional District 6 (the misshapen district at the heart of the Vieth litigation). As a result, voters exhibit little allegiance to their district, and legislators can freely slice and dice districts in order to maximize their personal and partisan advantage. But if every district had a name of its own — e.g., the District of Manhattan (N.Y.), the Appalachian District (W.Va.), Greater Tucson (Ariz.), Golden Valley (Calif.) — voters might start to feel a genuine connection with their district. Congressional districts might become real political communities rather than agglomerations of voters with little in common beyond their tendency to cast their ballots a certain way. And politicians would face a higher risk of voter backlash if they were to disrupt coherent geographical units during redistricting — while also incurring some embarrassment if, say, the Greater Raleigh (N.C.) District suddenly spouted a tendril reaching all the way to Charlotte.

But won’t legislators oppose naming districts on the same grounds they oppose creating nonpartisan redistricting commissions? They might, but there are reasons to think that their opposition could more easily be overcome. First, many politicians would actually enjoy representing a better-defined geographical area. There’s more cachet in being the Congressman from Boston than the Congressman from Massachusetts’s Eighth District. Second, the naming of districts is more difficult for politicians to criticize than the creation of redistricting commissions. The latter can be portrayed as undemocratic bureaucracies; the former just sounds like plain good sense. Third, once districts are named, it would be extremely difficult to revert to the old numbered system. That means supporters of named districts only need to prevail once, while redistricting commissions would need to be re-authorized every Census cycle.

So, what’s in a name? For opponents of gerrymandering, it turns out, quite a lot.



Nicholas Stephanopoulos is a second-year student at the Law School. His column appears on alternate Mondays.

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