A recent outpouring of public and academic criticism of gerrymandering raises difficult questions about when and under what circumstances the representation of political parties and their supporters can be considered fair. The difficulty is not, as Justice Kennedy recently suggested, that we lack consensual standards for evaluating the fairness of partisan representation. Such standards exist, but they tend to be subverted by the use of territorial districts. This occurs routinely because party and territory are conflicting and for the most part incommensurable principles upon which to found a system of legislative representation. The real question raised by gerrymandering is therefore not how to define fair partisan representation in general, but how to do so within a system of representation committed to territorial districts. Taking the nearly universal American commitment to territorial forms of representation as given, I argue that a commitment to territorial districting can be best justified by a normative commitment to localness and local issues as the proper subject of state politics. The paper then inquires how a representational system might be structured both to honor the commitment to territoriality on its own terms and simultaneously to satisfy other requirements of fairness in legislative representation. I argue that the best solution may be to revive what was in the nineteenth century the dominant form of legislative representation: instead of fixing permanently the number of legislators and varying the boundaries of their districts, as we do now, we might be better off fixing permanently the boundaries of legislative districts and varying the number of legislators each district elects. Using local government units such as counties and towns as election districts best honors the normative justifications for territorial districting while still permitting satisfaction of conditions of fairness in both population equality and partisan representation.
Marquette Law Review
James A. Gardner,
What is "Fair" Partisan Representation, and How Can It Be Constitutionalized? The Case for a Return to Fixed Election Districts,
Marq. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/articles/204