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The answer to the gerrymander

Maryland's new Sixth and Eighth Congressional Districts begin in the state's rugged northwest but then dive southeastward into suburban Montgomery County. The city of Baltimore is split between three new districts: the Second, Third, and Seventh. The new Fourth District joins heavily African-American Prince George's County with heavily white Anne Arundel County.

Is there anything wrong with these sorts of districts? Democratically, the answer is yes. Representatives cannot serve their constituents' interests effectively when districts fuse or fragment distinct communities. Voters also become confused and apathetic when they are placed in districts that do not correspond to underlying geographic realities.

Legally, however, the answer is no — at least for now. In a 2004 case, the Supreme Court rebuffed every standard that was offered to it for identifying unlawful political gerrymanders. As a result, the three-judge federal court that recently upheld Maryland's new congressional plan had no trouble denying the challengers' gerrymandering claim. "Absent a clear standard to apply," the court stated, "we must reject the plaintiffs' arguments on this count."

But while the Supreme Court's 2004 decision shut the gerrymandering door, it left open a window. If a future litigant were to come up with a workable rule, swing Justice Anthony Kennedy expressed a willingness to reconsider his position. In a concurring opinion in the recent Maryland case, Judge Roger Titus may have articulated precisely such a rule. Judge Titus argued that the gerrymandering inquiry should focus on whether voters "have seen their right to fair and effective representation compromised by having their community of interests ignored." Districts that cause the "separation of identifiable communities" typically should be struck down.

Applying this standard, Judge Titus singled out Maryland's new Third and Sixth Districts for criticism. The Third District, combining bits of Baltimore and Montgomery County with Anne Arundel County, was problematic because "[t]o suggest that there is a community of interest between [these areas] is absurd." The Sixth, merging the far reaches of northwestern Maryland with the suburbs of Montgomery County, was equally objectionable. "Those who have an interest in farming, mining, [and] tourism ... are paired with voters who ... do not know what a coal mine or paper mill even looks like."

As promising as Judge Titus' approach may seem, it struck his co-panelist, Judge Alexander Williams Jr., as overly ambiguous. In another concurring opinion, Judge Williams voiced his skepticism that courts could determine how closely districts correspond to geographic communities. Judge Titus did not respond to this critique, but in a forthcoming article in the Harvard Law Review, I introduce a new technique for assessing quantitatively the level of congruence between districts and communities.

The key insight is that districts are not monolithic wholes but rather agglomerations of many small Census tracts (i.e., neighborhoods with about 4,000 people each). If a district's tracts are relatively similar, in terms of variables like socioeconomic status, occupation, population density and ethnicity, then it is likely that the district corresponds to a single community. But if a district's tracts are highly dissimilar along key dimensions, then the district probably joins different communities.

According to this analysis, Judge Titus was right to be concerned about the Sixth District. Its overall level of community congruence is quite low, and its tracts are the most dissimilar in the state with respect to socioeconomic status (because Montgomery County is much more affluent than northwest Maryland). On the other hand, the Third District is fairly average by the (low) standards of the new congressional plan. And the Fourth, Seventh, and Eighth districts are all at least as troublesome as the Sixth. The Eighth, in particular, is the worst in Maryland because its tracts are highly varied in terms of socioeconomic status, population density, and Asian and Hispanic ethnicity.

In Judge Titus' formulation, then, the rule that districts should correspond to communities may well be too vague for courts to use. But now that it is possible to add some quantitative teeth to his approach, it is a much more attractive option than Judge Williams realized. It would make districts easier to represent and more comprehensible to voters. It would deter many partisan line-drawing abuses. And, now that districts can be ranked and compared to one another, it clearly would be a workable judicial standard.

Nicholas Stephanopoulos is an academic fellow at Columbia Law School, where he specializes in election law. His email is nicholas.stephanopoulos@gmail.com.

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