Thus far, the Supreme Court has been reluctant to find gerrymandering of legislative districts unconstitutional. Challenges under the Equal Protection Clause have failed because partisan districting does not dilute individual votes and there is lack of agreement on standards to solve the problem.
A Maryland case now working its way through the courts makes a different argument: Partisan gerrymandering violates First Amendment rights of speech and association of members of the minority party. This is an intriguing idea, but it may be hard to show that district configurations unconstitutionally burden such rights or to establish standards for drawing districts that can protect them.
The Supreme Court recently reaffirmed the principle that all persons are entitled to equality of representation. But gerrymandering is not an equality problem, even when districts resemble broken-wing pterodactyls, salamanders or Rorschach blots. Gerrymandering is a fundamentally unfair process in which incumbents choose their voters rather than allow voters to choose their officials. It is a violation of the Due Process Clause. Opinions of Justices John Paul Stevens and Anthony Kennedy in prior redistricting cases provide the basis for this argument.
Dissenting in Shaw v. Reno in 1992, Justice Stevens insisted: "The duty to govern impartially is abused when a group with power over the electoral process defines electoral boundaries solely to enhance its own political strength at the expense of any weaker group." In 2006 he elaborated, again dissenting in Vieth v. Jubelirer: "when partisanship is the legislature's sole motivation — when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage — the governing body cannot be said to have acted impartially." Justice Kennedy, concurring with the judgment in Veith, lamented: "Here, one has the sense that legislative restraint was abandoned. ... Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment, 'We are in the business of rigging elections'" (quoting a North Carolina state senator). These observations cut to the heart of the problem: Gerrymandering is an abuse of process, a first principle of which is the right to an impartial decision maker. Rigged elections are the outcome of a rigged process.
As a due process problem, redistricting requires an impartial decision maker, the right of different interests to be heard, and decisions that are not arbitrary or capricious. A few states with impartial redistricting processes show there are workable and enforceable rules for drawing districts fairly. First, redistricting should be conducted by an impartial decision maker applying well-established principles of decision making. The best systems include an equal number of members of each party, chaired by an additional person agreeable to both. That prevents one party from drawing districts guaranteeing it perpetual victory.
Given the ingenuity of legislators in drawing districts, two substantive standards can help ensure districts are not created, as Justice Kennedy opined, "in an invidious manner or in a way unrelated to any legitimate legislative objective." First, districts of equal population should be composed of contiguous territory and be compact in form. Contiguity alone is the elastic tissue of the gerrymander. Combined with compactness, the most invidious forms of partisan or racial gerrymandering are impaired.
Second, reasonable adjustments to compactness can be permitted to meet requirements of the Voting Rights Act, recognize the integrity of political subdivisions, socio-economic communities of interest, and natural and other physiographic boundaries. Geography can make creating compact districts challenging. Maryland's Eastern Shore and Western Maryland tend to be coherent regions, but each lacks sufficient population for its own district; creating districts as compact as is feasible is the place to start.
Redistricting is not just geography. It is also political science. There is compelling state interest, as well as a federal legal requirement, in meeting requirements of the Voting Rights Act, and it may require departing from compactness. Other minor boundary adjustments may serve legitimate state interests in maintaining the cohesion of a census-defined community, governmental subdivisions or well-defined economic or cultural regions. Perpetuation of incumbent power and punishment of the opposition are not among those legitimate interests.
Applying these workable and tested standards can end gerrymandering, which violates the idea of fundamental fairness. If elections do not matter, ours is no longer a representative democracy. Most legislatures and governors cannot bring themselves impartially to draw legislative districts. Once more, it is time and necessary for the courts to do justice.
Royce Hanson is a research professor at George Washington Institute of Public Policy; his email is firstname.lastname@example.org.