How to Do Things with Boundaries: Redistricting and the Construction of Politics

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After twenty-five years, the federal jurisprudence of partisan gerrymandering remains a mess. The Court's attempts to decide on the merits when power is unfairly distributed among parties and their supporters has foundered on its inability to agree on a normative baseline of fair power distribution from which deviations might be measured. A second strand of federal jurisprudence has looked to process—specifically, to whether a legislative majority has sacrificed other democratic values (“traditional districting principles”) to the pursuit of raw political power. This is a potentially promising move. The partition of the electorate through districting matters not only for its influence on who wins office, but also for its influence on important characteristics of democratic politics, broadly defined. Federal courts, however, have not explained what democratic values are served by an adherence to traditional districting principles. An account therefore is required of how the drawing of legislative districts affects democratic politics. This article makes a start by examining three such effects: how the placing of district boundaries affects which issues become salient in electoral politics; the degree of conflict that ensues when these issues are taken up in democratic processes; and the specific forums in which such conflict emerges. This analysis, however, raises normatively charged prescriptive questions. If we can alter important characteristics of politics by the way we draw district lines, how should we draw them? What kind of politics ought we aim to produce? The article addresses these questions by examining for guidance some of the normative choices that state polities have made in their state constitutions and in their judicially developed jurisprudences of redistricting. It concludes by arguing that congressional districting ought to be oriented toward different criteria than the redistricting of state legislatures, and that the most important of these is political ideology.

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Election Law Journal

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