- I. Introduction
- II. Procedural Integrity as an Ideal
- III. Alternative Critiques of Partisan Gerrymandering
- IV. Partisan Gerrymandering in the Present
- V. Judicial Pathways for Reform
- VI. Conclusion
In the opening paragraphs of her dissent in Rucho v. Common Cause, Justice Kagan stated the following:
The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.
In line with a number of arguments advanced by Supreme Court Justices and legal scholars, this Article advances a claim that partisan gerrymandering is problematic and a matter appropriate for judicial intervention. However, the basis of my critique fundamentally stems from a concern with democratic principles and the preservation of legitimacy for the democratic system. In that respect, Justice Kagan’s last sentence in the above quotation speaks directly to this Article’s central concern.
As to how exactly partisan gerrymandering undermines or weakens democratic legitimacy, my focus will be on a consideration that is at best only implicit in the list of negative consequences offered by Justice Kagan. I argue that the core problem with partisan gerrymandering from the standpoint of democratic theory lies in the fact that it violates a basic norm of procedural integrity. In illuminating the normative appeal of procedural integrity and its necessity to the enterprise of democratic decision-making, this Article seeks to make three primary contributions. First, it will help bring conceptual clarity to the harms posed by partisan gerrymandering in both normative-theoretical terms and in more policy-oriented terms. Second, it will also help to clarify those respects in which partisan gerrymandering should trouble us less. Indeed, as I will emphasize through the remainder of the Article, my critique of partisan gerrymandering is context-sensitive and focused on the present moment in time. My argument is not a categorical critique of the practice, and I do believe there are circumstances in which partisan gerrymandering would not pose significant harm to democratic principles or democratic legitimacy. Third, my critique of partisan gerrymandering will also suggest better and worse judicial responses to dealing with the problem in the present time. As I will argue, there is much to be commended in the spirit of caution that can be found in past discussions of partisan gerrymandering put forth in various Supreme Court opinions.
The Article proceeds as follows: in Part II, one of my main tasks is to flesh out and defend the concept of procedural integrity. As I will argue, this concept demands some separation or distance between the purpose(s) motivating the choice of a collective decision-making rule and the substance of the decisions reached under that decision-making rule. Put more simply, procedural integrity demands that collective decision-making rules not be adopted in order to ensure very specific outcomes. I argue that this norm is implicit in one of the core purposes of democratic government to contain and resolve societal conflict. From this starting point, it is easy to see how partisan gerrymandering may run afoul of democratic principles.
However, my second primary task in Part II is to clarify the qualified nature of my critique. While I argue that procedural integrity is implicit in the idea of democratic decision-making and an element that contributes to democratic legitimacy, I also recognize that other elements contribute to or enhance democratic legitimacy as well. As such, depending upon background political conditions, I argue that the importance of procedural integrity for preserving democratic legitimacy may vary. That is, there may be certain contexts in which procedural integrity is crucial for ensuring continued respect for the democratic system among the broader polity. However, there may be other contexts in which it is less important—such as moments in time where the policy consequences of particular elections are less important. Nonetheless, I conclude Part II by emphasizing the significance of procedural integrity for contemporary American politics; as such, Justice Kagan’s claim that partisan gerrymandering poses a threat to democracy is certainly correct at this moment in time.
In Part III, I further develop the concept of procedural integrity by grounding it in the various arguments put forth in key Supreme Court opinions on partisan gerrymandering and in some of the key scholarly works on the topic. In Part IV, I elaborate on why precisely partisan gerrymandering poses such a threat to democratic legitimacy at the present time. In particular, I identify and elaborate on three conditions of contemporary American politics that both heighten the need for procedural integrity and create significant opportunities for lasting damage to be done by partisan gerrymandering. They are, in turn: (1) the existence of a broad policy space within which partisan conflict has the potential to touch significant domains of American society; (2) the mapping of sharp ideological divisions in society onto sharp partisan divisions; and (3) a signaling by political elites of their willingness to drive forward on significant changes in American politics and society. To the extent these conditions exist and are widely recognized within the electorate, they would indicate the existence of significant pressure or stress upon the conflict-resolving function of democratic procedures.
Finally, in Part V, I conclude by discussing how the Supreme Court might proceed given the polarized context of the present moment in time and the troubling consequences that might flow from unchecked partisan manipulation of electoral districting. I conclude that a mix of both principled opposition to partisan gerrymandering and cautionary steps toward limited judicial intervention—evident in a number of Supreme Court opinions over the past several decades—likely reflects what would have been the best path forward at this time. However, Chief Justice Roberts, writing for the Court in Rucho, ultimately settled on principled judicial nonintervention on the issue. Looking ahead and barring membership changes to the Court, it seems likely that the vindication of procedural integrity will, unfortunately, require efforts from outside the federal courts.
II. Procedural Integrity as an Ideal
As noted in the Introduction, I start from the presumption that partisan gerrymandering, in the present time, poses harm to democratic principles and democratic legitimacy. In making this claim, I join a number of other scholars who have similarly argued that partisan gerrymandering potentially violates a number of constitutional provisions including, most prominently, the Equal Protection Clause, the First Amendment, and the Due Process Clauses. In a similar way, the argument I make here is one that can plausibly be articulated as a legal critique based upon these constitutional provisions or perhaps others. However, my argument is fundamentally rooted in democratic theory. That is, the normative foundation for my claim is primarily based upon what I take to be the preconditions for legitimate democratic government.
A. Defining Procedural Integrity
A starting point, then, is the concept of procedural integrity. At its core, the ideal of procedural integrity speaks to the legitimacy of a collective decision-making process based upon the separation or detachment of that process from the substantive controversies it is meant to resolve. This does not mean that collective decision-making procedures necessarily become less legitimate if they make some outcomes more likely than others—a situation that would seem impossible to avoid with the choice of any collective decision-making procedure. Valid processes need not be neutral in the potential outcomes they are likely to generate. Rather, what is crucial is the principled separation of purpose from effect: procedural integrity is present, to a greater extent, if the purpose underlying the choice of procedure is—and is perceived to be—more distant from the issues meant to be resolved under that procedure.
To provide a simple example, consider the hypothetical of a law school faculty where the status quo collective decision-making process is majority rule on matters related to curriculum, graduation requirements, faculty hiring, and faculty promotions. Voters are the tenured or tenure-track faculty, and majority rule is also the default rule for any changes to the voting rules. Against this backdrop, a majority of the faculty succeeds in changing the voting rule for all of these matters to a two-thirds super-majoritarian rule. Under this scenario, some consequences are more likely to follow—namely, we might expect fewer policy changes of any kind to happen under a super-majoritarian rule. However, given the nature of the voting rule change and its broad scope, it is easy to imagine some plausible broader purposes behind the rule change including, perhaps: an interest in having more collective deliberation and consensus or an intent to privilege established practices to a greater degree. In such a situation, there is no obvious conflict between these rule changes and the ideal of procedural integrity.
Contrast the above hypothetical with a different one: assume the same initial background conditions with majority rule prevailing for all voting matters outlined above. However, assume that somewhat differently in the present case, a majority of the faculty leaves majority rule in place for all of these matters except for faculty votes on the curriculum. In this last category, a majority of the faculty changes the voting rule to a two-thirds super-majoritarian rule. Further, it is widely known that a cohort of professors making up the entirety of this majority is concerned about future changes to the 1L curriculum; their desire to insulate it from future revision is the widely known motive for this rule change. Here, the situation looks a little different from the first hypothetical. Given the background context and the limited scope of the rule change, one might perceive less separation between the new decision-making procedure and the likely outcomes that will follow from it. As such, a little more suspicion may be raised about the legitimacy of this new decision-making procedure—the super-majoritarian rule for curriculum—as a legitimate mechanism for resolving conflicting views on the faculty, in the future, on the array of issues likely to arise about the 1L curriculum.
Taking the preceding example even further, consider a third hypothetical: we start with the initial conditions in the first hypothetical, but a majority of the faculty settles on a voting rule that only the tenured and tenure-track faculty who have taught a 1L course in the past academic year may vote on matters tied to the 1L curriculum. That is, the majority is instituting a form of disfranchisement (albeit a reversible one since that voting rule could be reversed with a majority vote of the tenure-related faculty). Further, assume that the motive for the majority in favor of this rule change was driven by a desire to entrench a consensus view among the 1L teaching faculty on certain key questions about the 1L curriculum that were then arising. Here, the newly adopted decision-making process would appear to have even less separation from the controversies it is meant to address, compared to the second hypothetical. As a result, this new voting rule may seem even more suspect as an effective mechanism for genuinely resolving conflicting views among the faculty on the 1L curriculum, even though the formal rules for collective decision-making have technically been followed.
The appeal of procedural integrity is, I believe, ultimately rooted in common intuitions about fairness in the context of collective decision-making. Fair collective decision-making processes can exert a powerful beneficial effect in projecting a broader sense of democratic legitimacy and in commending the outcomes generated by these processes as worthy of respect—even for those inclined to disagree with those outcomes. But when this occurs, this perceived fairness or legitimacy of democratic procedures may hinge significantly on a broader perception that the purpose(s) underlying the decision-making process is separate and distinct from the substantive controversy meant to be resolved under that process. Perceptions about process may be crucial. Or stated otherwise, two identical outcomes might be received differently, and subsequently have different downstream consequences for their perceived legitimacy, if there are key differences in the processes that generated those outcomes. In particular, what may be especially crucial is the presence or absence of certain problematic intentions by decision-makers.
Thus, I proceed from the assumption that democratic legitimacy—that is, the perceived fairness and authority of the democratic or collective decision-making system—may be enhanced or undermined by both the intentions at work with a given policy or rule change and how the voting public perceives those intentions. In the same way that reason-giving plays a role in supporting the judiciary’s legitimacy when it renders opinions, a point that I will expand upon below, a less demanding but still significant expectation exists, I believe, for nonjudicial decision-makers as well. A number of reasons might underlie the significance of legislative intentions for democratic legitimacy. As John Hart Ely noted, concerns about illegitimate legislative purposes are often, at root, concerns about an ill-functioning democratic process. Relatedly, even though he has offered a mixed view on how much legislative intentions should matter in judicial scrutiny of legislation, Richard Fallon identified at least two reasons why such intentions may still be constitutionally relevant. First, he argued that legislators may possess “deliberative obligations” not to pursue constitutionally forbidden aims. Second, he also recognized that problematic legislative intentions may endow a challenged statute with problematic “expressive” content, such that the statute may come to possess an “expressive effect” that stigmatizes racial or religious minorities.
B. Neutral Principles in the Judiciary
With the basic concept of procedural integrity on the table, it is worth taking a moment to discuss a related concept that overlaps and diverges from my argument: the concept of “neutral principles” has played an outsized role in constitutional law and theory. In his famous article Toward Neutral Principles of Constitutional Law, Herbert Wechsler set forth a claim that, given their lack of electoral legitimacy, judicial actors should align their actions with “neutral principles” to ensure the maintenance of judicial legitimacy. Wechsler defined neutral principles as follows:
I put it to you that the main constituent of the judicial process is precisely that it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved. To be sure, the courts decide, or should decide, only the case they have before them. But must they not decide on grounds of adequate neutrality and generality, tested not only by the instant application but by others that the principles imply? Is it not the very essence of judicial method to insist upon attending to such other cases, preferably those involving an opposing interest, in evaluating any principle avowed?
As many have noted, Wechsler’s emphasis on the need for generality and consistency in judicial reasoning was speaking to a sensibility very much in line with the related notion of “reasoned elaboration”—a concept core to legal process theory. Hart and Sacks described how a judge, committed to reasoned elaboration, might approach their work in interpreting a speed statute referencing a “motor car”:
[Reasoned elaboration] means, first of all, that the magistrate is obliged to resolve the issue before him on the assumption that the answer will be the same in all like cases. . . . He is to decide the question, in other words, as a question of law.
Secondly, the magistrate is obliged to relate his decision in some reasoned fashion to the speed statute out of which the question arises. He is not to think of himself as in the same position as a legislator taking part in the enactment of the statute in the first place.
The conceptual tie between judicial neutral principles and procedural integrity is clear: present in both is the basic worry that decision-making processes (adjudicative in the former, democratic in the latter) should maintain some distance from the peculiarities of a given controversy, or select group of controversies, that those processes will address. The idea of separation or detachment is crucial for both. Yet the differences between the two concepts are also apparent as well. For one thing, one set of claims is self-consciously offered as a guide for judicial actions, while the other is not.
More substantively, the concept of separation functions differently in these two institutional contexts. In the context of judicial neutrality, the goal of divorcing the adjudicatory process from a given case or controversy is to generate general principles that would, in theory, apply to similar cases. To the extent that judicial actors would apply these general or neutral principles more broadly, their discretion would be laudably constrained, their legal decisions might be more easily rationalized, and the legitimacy of the judiciary might be aided.
In contrast, the benefit of separation in the democratic decision-making context is different. Here the goal is not necessarily to construct a deeper and more defensible rationality for democratic decisions. This would very likely be setting the bar of difficulty too high—especially given the more chaotic nature of democratic decision-making. It would also probably be somewhat unnecessary given the very democratic legitimacy enjoyed by elected officials that is sorely lacking in the judicial context; indeed, the absence of electoral legitimacy for judicial actors is precisely the condition that demands adherence to neutral principles and reasoned elaboration in that context. Rather, the goal in the democratic context is more modest: separation between decision-making procedure and substantive decision serves simply to create some conceptual space between them, whether commendably rational or not.
For example, if a deadlocked state legislature decided to flip a coin to break a tie, this decision-making rule—while hardly reflecting the type of principled decision-making aspired to in judicial opinions—would not necessarily violate the ideal of procedural integrity. Indeed, the fact that pure chance may legitimately be incorporated into some democratic decision rules suggests that decision-making legitimacy in this context can hinge more on separation and less on rationality. By way of contrast, consider how differently a coin-flip decision-making rule would be perceived in the adjudicatory context. Arguably, a coin-flip rule might satisfy the ideal of judicial neutral principles in a superficial way, if applied expansively. But, of course, the use of such a decision-making rule in this context would strike most as a gross violation of the kind of principled and rational decision-making expected of judicial actors.
C. The Status of a Principle of Procedural Integrity
Assuming that the ideal of procedural integrity carries at least an initial, intuitive appeal, the question remains as to the status of this principle. Or put differently, why should this principle have any bearing on the matter of partisan gerrymandering? As noted above, while this principle could plausibly be linked to specific constitutional clauses, the normative force of procedural integrity primarily stems from its centrality to democratic principles. And if one agrees that procedural integrity is often a basic prerequisite for democracy, one might further agree that it may be a prerequisite for our constitutional system—to the extent one recognizes democracy as a central component of our constitutional system.
To be sure, there are prerequisites to American constitutional democracy that are quite explicit in the constitutional text. To take an obvious example, free speech seems essential for any enterprise in democratic self-government, and we see it explicitly referenced in the First Amendment. However, as already implied, I view the status of procedural integrity differently from free speech and the First Amendment. The best indicators of procedural integrity’s centrality or significance stem less from textual supports. Instead, they stem from reflecting upon the core purposes of democratic self-government and seeking to identify those prerequisites or substructural components that are necessary for the enterprise of self-government to be meaningfully pursued.
Thus, the significance of procedural integrity can be derived from a purposive argument about democracy. While less anchored to the text, it, of course, draws from some very familiar elements within both constitutional and statutory legal theory. With respect to the former, for example, one finds a similar sensibility within the structural form of argument developed by Charles Black. As Black described it, structural argument is “the method of inference from the structures and relationships created by the [C]onstitution in all its parts or in some principal part.” While Black’s structural arguments might have been more tightly linked to specific constitutional structural commitments such as federal supremacy, as opposed to democratic commitments, the style of argument is the same as what I am proposing: namely, trying to flesh out the scope of principles by reasoning from the implications of other, more foundational principles.
A second and perhaps even more closely related style of argument are purposive arguments within the realm of statutory interpretation, an approach commonly associated with legal process theory as set forth by Henry Hart and Albert Sacks in their course materials that were first compiled in 1958. Recall Hart and Sack’s endorsement of reasoned elaboration as a hallmark of sound judicial action. A component of reasoned elaboration—especially where judges face considerable uncertainty in how to apply a legal directive to particular circumstances—is for judges to interpret and apply that legal directive with reference to its underlying purpose. To quote Hart and Sacks:
Law is a doing of something, a purposive activity, a continuous striving to solve the basic problems of social living set forth in the two opening notes. . . . Underlying every rule and standard, in other words, is at the least a policy and in most cases a principle. This principle or policy is always available to guide judgment in resolving uncertainties about the arrangement’s meaning. The uncertainties cannot be intelligibly resolved—indeed, in a just case they cannot be intelligibly resolved—without reference to it. If the policy is in doubt in relevant respects, that doubt must be cleared up. Always the question must be faced: What purpose—what policy or objective or underlying principle—should be attributed to the arrangement in question?
This emphasis on purpose in statutory interpretation was not unique to Hart and Sacks. For example, one finds similar arguments in writings by Felix Frankfort and Lon Fuller at roughly the same time as well.
Again, as was the case with structural constitutional arguments, the sensibility behind purposive statutory-interpretative arguments aligns with the claim I am setting forth on procedural integrity. Once one starts from an accepted purpose—of a statute, or of a constitutional commitment, or of democratic self-government itself—one can then reason to secondary principles by thinking through which options will allow for the nurturing, achievement, or maintenance of those accepted purposes.
With these points in mind, let us return then to the ideal procedural integrity and its relation to democratic theory more generally. It is a basic but still significant point that elections are central to actualizing popular sovereignty in a democratic system. Yet, as basic an idea as it may be, it is still worth unpacking because there are a number of ways to understand the core purposes that elections may serve in democratic self-government. First, in the most minimal sense, elections—and democratic self-government—are potentially helpful in directing societal conflicts away from bloodshed because they clarify the stakes in a conflict; they inform the polity which positions enjoy the greatest numerical support and perhaps which positions would be backed by the greatest brute strength in the context of armed conflict. Adam Przeworski put it as follows: “Voting constitutes ‘flexing muscles’: a reading of chances in the eventual war. If all men are equally strong (or armed) then the distribution of vote is a proxy for the outcome of war.” That is one way to understand the purpose of elections in a democracy—as a means to avoid bloodshed and violence.
Beyond this minimal benefit, a more robust conception of democracy might also emphasize a constitutive purpose of elections linked to their role in ensuring the accountability of elected officials. Elections are the means by which our representatives are held accountable to the larger popular will. Thus, elections advance democracy by ensuring a continued control by the people over their elected officials.
Third and most relevant for my argument, elections further democracy by facilitating and constituting dialogue between citizens. That is, in addition to the role that elections play in informing representatives about broader public beliefs, elections play a similar but distinct role in educating citizens about the beliefs of their fellow citizens at a given moment in time.
For any citizen committed to the idea of democracy, then, this moment-of-truth among citizens in an election is crucial for the continued viability of the enterprise. Elections are the moment where voters discover what majorities of the polity believe on disputed issues. Again, for those who are committed to the idea of democracy, discovering where majority or super-majoritarian sentiment lies is usually what sets the course for at least the next step in the continued life of the polity. By clarifying and publicizing the electorate’s sentiment back to the electorate, elections and democratic procedures can provide a means for the polity to address conflicts and move on to either revisit those conflicts later or to address new ones.
This conflict-settling component of democracy is, not surprisingly, a point emphasized by democratic theorists. For example, as Elaine Spitz has stated, “Within a state characterized by popular sovereignty and formal political equality, participants in the practice of majority rule attempt to achieve certain purposes. Their overriding intention is to manipulate discord in order to produce agreement. Above all else, they want to discover a way to proceed as a unit.”
Thus, I take it to be relatively uncontroversial that resolving—or at least temporarily settling—societal conflicts through the revealing of public preferences is a core purpose of democracy and collective self-government. To the extent that one is inclined to agree with this assessment, it is not difficult to see how a principle of procedural integrity might be inferred or implied from a commitment to democracy. If one is committed to democracy and believes that democratic processes serve a core purpose of settling societal conflicts, there would seemingly need to be some threshold level of confidence, within the electorate, that the procedures used to reveal public preferences were legitimate and worthy of respect. Absent such legitimacy, this conflict-settling function would be deeply compromised. On the other hand, one might easily see how procedural integrity would enhance the perception of legitimacy of democratic procedures by providing greater confidence to the electorate that electoral outcomes did indeed reflect some acceptable semblance of popular will. A sketch of my critique of partisan gerrymandering is now apparent: the deliberate manipulation of electoral processes might easily undermine the legitimacy of electoral outcomes and function to undermine a core purpose of democratic procedures to settle or manage societal conflicts.
D. The Variable Significance of Procedural Integrity
Up to now, I have defined the ideal of procedural integrity, and I have also clarified its status as a normative principle that might be inferred from a more fundamental purpose of democratic self-government to settle conflicts. And as noted in the preceding Section, procedural integrity serves as the starting point of my critique of partisan gerrymandering.
However, in this Section I will try and clarify more precisely the relationship between procedural integrity and partisan gerrymandering. Given the preceding points, one might be inclined to think that the relationship is fairly simple and direct: procedural integrity is a nonnegotiable prerequisite of democratic self-governance, and because partisan gerrymandering violates it, any person committed to democracy should categorically reject partisan gerrymandering. Indeed, although he does not emphasize the concept of procedural integrity, Guy-Uriel Charles has also set forth an insightful critique of partisan gerrymandering based upon a commitment to democratic legitimacy that aligns, I think, with much of my argument so far. His argument has precisely this type of structure to it—i.e., viewing partisan gerrymandering as something like a categorical violation of democratic principles.
Similarly, I view procedural integrity as an enduring commitment and constraint on governmental actions undertaken within our constitutional system. However, I view the significance or scope of this commitment as variable. As such, I view the commitment to procedural integrity as carrying greater or lesser weight depending upon other background conditions at a given moment in time. The reason for this is also simple: the normative force of procedural integrity derives from its functional role in enhancing or maintaining the overall legitimacy of the democratic system. But procedural integrity is, of course, not the only component or element that constitutes democratic legitimacy. Most obviously, for example, the legitimacy of a democratic government would also likely hinge to a significant degree on substantive policy outcomes that are either generated by that system, or that are allowed to coexist with that system. Or to put the point more simply, voters may determine that a democratic system is more or less worthy of their respect based upon the fairness of the democratic procedures and based upon whether that system permits, demands, or prohibits substantive goals such as slavery, racial segregation, the welfare state, voting equality, abortion rights, or some other substantive commitment.
Because procedural integrity is only one component among others in creating democratic legitimacy, it should be unsurprising that the significance of procedural integrity might vary at different moments of time—depending upon the status of some of those other elements. Further, extending this line of argument, even if partisan gerrymandering constitutes a violation of procedural integrity, the implication of the proceeding argument is that partisan gerrymandering may not always pose a problem from the standpoint of democratic theory. Indeed, partisan gerrymandering has been quite common for long stretches of American political history. Given that history, any argument proceeding from basic intuitions about democratic theory and practice—such as mine—might be hard pressed to defend a categorical critique of partisan gerrymandering.
Although I am unable to put forth a more systematic argument about the broader set of elements that constitute democratic legitimacy—a task far beyond what I can attempt here—my more limited claim is the following: at least at the present moment in time, procedural integrity is a relatively more significant factor in the maintenance of democratic legitimacy. I will flesh out this point in more detail in Part III, but the basis for this claim stems from several key features of contemporary American politics: (1) the policy stakes or consequences of federal elections are wide-ranging and significant; (2) sharp ideological divisions within society closely map onto partisan divisions; and (3) political elites have strongly signaled a desire or willingness to bring about major policy changes. Against this backdrop, a commitment to procedural integrity is especially important. Given that, the violation of procedural integrity constituted by the partisan gerrymandering of congressional elections encompasses a cause for concern from the standpoint of democratic theory that—if not true for all periods in American history—nevertheless has particular weight for the present.
E. Conceptual Relevance of Living Constitutionalism
The context-sensitive nature of my normative claim carries some similarities and differences from other arguments put forth under the heading of “living constitutionalism.” Before moving on to flesh out the substance of my claim in the context of the Supreme Court’s partisan-gerrymandering cases, I will conclude this Part with a discussion of how this related literature on living constitutionalism converges and diverges from my argument.
First, consider two recent arguments on living constitutionalism and constitutional interpretation put forward by Jack Balkin and Lawrence Lessig. Although he is committed to semantic originalism as a method of constitutional interpretation—in other words, interpreting constitutional text in line with the original meaning of its words—Balkin’s overall interpretative theory of “text and principle” also allows for the evolution of constitutional commitments over time, even independent of an Article V amendment. Balkin endorses a semantic originalist interpretative method in setting an interpretive floor for constitutional commitments. However, for him, a living or evolving approach to applying constitutional principle is still possible above this floor. Especially with respect to general and expansive constitutional text such as the Equal Protection Clause or the Due Process Clauses of the Fifth and Fourteenth Amendments, Balkin’s theory invites later interpreters to layer “constitutional constructions” over the framework created by the original text and the principles embodied within it, thereby allowing constitutional doctrine to evolve—sometimes in ways that dramatically depart from the more specific intentions of the original authors of the text.
Indeed, for this reason, Balkin argues that constitutional protection for abortion rights can be justified under the Equal Protection Clause as a valid construction or gloss on the constitutional principle of equal citizenship embodied in that text—even though a strict originalist defense of abortion rights would seem implausible. Balkin reaches that conclusion because he argues that modern-day interpreters are bound to the original general principle of equal citizenship in the Equal Protection Clause and not to the more specific conceptions—or original expected applications—of that text held by the framers of the Fourteenth Amendment.
In a similar vein, Lawrence Lessig’s theory of constitutional interpretation emphasizes how interpretive fidelity demands the “translation” of explicit constitutional commitments from their original context to newer contexts. Through this act of translation, constitutional commitments may evolve over time, to accommodate new and changing circumstances, while also remaining faithful to the original intentions of their framers. Indeed, as Lessig argues, interpreting constitutional commitments with a conscientiousness about changed circumstances constitutes a type of fidelity in interpretation that, in its way, goes beyond a blind obedience to the original specific intentions of framers that is endorsed by some originalists. Lessig argues that judicial fidelity in translation—along with fidelity with respect to the judicial-institutional role—provides both a compelling normative and historical account of Supreme Court behavior.
Finally, consider David Strauss’s theory of common law constitutional development. Like Balkin and Lessig, Strauss offers a normative and descriptive account of constitutional interpretation that accounts for evolving constitutional commitments over time. However, Strauss does not characterize this evolution as the layering of constitutional constructions on top of a framework of original constitutional commitments. Nor does he view this evolution as the exercise of judicial fidelity, through translation, to original constitutional commitments. Rather, for him, the key mechanism is a common law logic. That is, he views the evolution of constitutional commitments as emanating from common law judicial innovations. Between these three theories, Strauss’s account of interpretation gives the least weight to original meanings of constitutional commitments.
Similar to all three of these theories, the argument I am putting forth likewise encompasses the potential for substantive commitments to carry greater or lesser weight at different moments in time. I share with all three theories an attentiveness to changing circumstances, and how they may bear upon substantive commitments. Thus, the type of claim I am making here—that certain enduring practices may be problematic at some times and not at others—might possibly be made within Balkin’s theory of living originalism, or Lessig’s theory of translation, or Strauss’s theory of common law constitutionalism.
Yet, my argument diverges from these accounts as well. Most obviously, each of these arguments is an argument about constitutional interpretation, which is, of course, distinct from my focus on democratic theory. Thus, the normative weight of procedural integrity in my account stems from its service to democratic self-government and less from its status as a textually mandated constitutional commitment. More significantly, my account also diverges in the mechanism of change that I am emphasizing. My claim that partisan gerrymandering is problematic in the present time, and a violation of procedural integrity, is not a claim about translation and how the meaning of procedural integrity has changed—or should be changed—over time. I suspect our basic intuitions about procedural integrity in 2020, and what it demands, would be quite familiar in the nineteenth century when partisan gerrymandering was much more common. Nor is my claim—that procedural integrity is a new gloss on an enduring principle like democratic self-government—akin to Balkin’s discussion of constitutional construction within his theory of living originalism. Finally, and perhaps most obviously, neither is my argument one about how procedural integrity is the product of judicially driven innovation.
More precisely, my argument is one that proceeds from reasoning holistically about democratic self-governance as a system composed of many parts that each help to sustain that system’s legitimacy. Procedural integrity is one such part, and at certain moments in time, that part may be more or less crucial to sustaining the legitimacy of the system. As I will argue in Part III, because procedural integrity carries greater significance in this era of American democracy, the need to regulate partisan gerrymandering from outside the democratic process is especially significant in the present context.
III. Alternative Critiques of Partisan Gerrymandering
In the preceding Part, I discussed the concept of procedural integrity from a fairly abstract perspective, grounding the discussion in democratic theory. In the present Part, I switch gears to discuss procedural integrity within the context of Supreme Court cases and scholarly writings on partisan gerrymandering. In examining what Supreme Court Justices and scholars have said about the potential harms of partisan gerrymandering—and whether these harms can be redressed by the courts—I will argue that there are strands of thought within these sources that support the claims I raised in the preceding Part. More specifically, I would argue that judicial and scholarly arguments commonly address the issue of partisan gerrymandering with an eye to the substructural principles undergirding democratic governance. Further, although I have not come across any arguments centrally concerned with the norm of procedural integrity as I describe it here, elements of that ideal appear in a number of critiques advanced by others about partisan gerrymandering. Still, if one goal of this Part is to demonstrate that my claims have some basis and support within the leading cases and scholarly writings on the topic, I also have a second goal: to sharpen and clarify where my argument diverges from others. More precisely, my emphasis on procedural integrity and my related criticism of partisan gerrymandering is fundamentally a context-sensitive claim dependent upon prevailing political conditions. As far as I know, this type of argument diverges from most critiques of partisan gerrymandering. Thus, in elaborating on where I diverge from previous arguments, I hope to clarify how my argument contributes to these debates and to make a more compelling case for why the regulation of partisan gerrymandering outside the democratic process is warranted at present.
A. Partisan Gerrymandering as a Violation of Representational Outcomes
From the standpoint of democratic principles, one of the most obvious critiques of partisan gerrymandering lies in its potential to distort electoral and representational outcomes. Put more simply, one might argue that the very point of partisan gerrymandering is to artificially shape the partisan makeup of a representative body, presumably with the goal of influencing subsequent policymaking by that body.
It is not hard to find arguments of this type that nod to a presumption of representational equality as a prerequisite of democracy and then emphasize how partisan gerrymandering violates this ideal. To be sure, such arguments often technically emanate from the authority of constitutional principle rather than democratic theory, but it seems clear that democracy itself supplies much of the normative force of these arguments.
A prominent illustration of this was Justice White’s opinion for the Court in Davis v. Bandemer. In concluding that partisan gerrymandering claims may be justiciable, Justice White stated the following:
As with individual districts, where unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Again, without specific supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionately underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.
To be clear, White’s standard was not entirely outcome-oriented because he also noted earlier in his opinion that there had to be an intent to engage in these actions by state actors. Further, even with respect to the outcome-oriented element of the standard, the preceding quotation also emphasized that proportional representation by a party is not required under the Constitution. Still, the emphasis within the standard was clearly on a certain kind of representational outcome demanded under the Constitution. A partisan gerrymander that functions to dilute or devalue an individual’s vote past a certain point required, at least under White’s standard, judicial redress. This standard in Bandemer was unfortunately vague, however, and perhaps not surprisingly, subsequent scholarship sought to construct more definitive and concrete measurements of representational inequality such as “partisan symmetry” and the “efficiency gap.”
At least implicit in these arguments about representational inequality is a concern about the legitimacy of the larger democratic system. A democratic process that erased or minimized the influence of a voting constituency beyond a certain point could threaten the viability of the entire process in the future by prompting electoral losers to question the value of their continued participation. In this, there is a conceptual thread that aligns with my focus on procedural integrity. A degradation of voting procedures that undermines the legitimacy of those procedures for the broader electorate is the starting point of my critique of gerrymandering from the perspective of procedural integrity.
Still, at least two points of potential divergence are also worth noting as well. The most obvious divergence between my argument and a representation-focused critique of partisan gerrymandering lies within their different points of primary concern. Arguments focused on representational outcomes, like White’s standard in Bandemer, focus on the end-result of elections—whether that may be legislative seats won or subsequent policy outcomes. In contrast, my focus on democratic legitimacy encompasses a concern with breakdown in democratic processes at an earlier stage. As such, it is possible—at least conceptually—to imagine costs to democratic legitimacy occurring even if would-be gerrymanderers were unsuccessful in actually achieving outcomes of representational inequality. Such a scenario would still strike me as a violation of democratic principles because of the still-remaining potential for such behavior, if widely known, to undermine the legitimacy of future elections.
Second, if my focus on procedural integrity and democratic legitimacy might allow me to critique scenarios that would look less troubling, or not troubling at all, from the outcome-oriented standpoint of representational inequality, the reverse is also true as well. Namely, there may be situations where representational inequalities are present and significant but are not troubling from my standpoint. Indeed, in situations where democratic legitimacy is less reliant on the conduct and outcome of federal elections, violations of procedural integrity may not look as significant or concerning from my standpoint.
This last point speaks to an earlier claim raised in Part II: because my critique of partisan gerrymandering is context-dependent, the practice may not always be problematic. To go further, this point also suggests a larger potential critique of arguments about partisan gerrymandering focused on representational inequality. There is clearly an intuitive appeal to focusing on representational inequality as the central norm at stake in these debates given its appeal and simplicity. However, in the actual practice of democracy, it is also obvious that this norm is violated throughout our governmental structure. Most obviously, the very structure of representation within the U.S. Senate clearly diverges from an ideal of representational equality. Further, as Justice Scalia noted in his opinion for the Court in Vieth v. Jubelirer, disparities may exist in how Democratic and Republican votes are translated into legislative seats by virtue of demographic conditions such as the clustering of Democrats within cities and the predominance of Republicans in more rural areas (that might allow for greater relative inefficiency for Democrats in converting Democratic votes into legislative wins, compared to Republicans).
I would suggest that our toleration of such inequalities in the modern practice of American democracy indicates that representational equality is only one of several possible ingredients that support the legitimacy of the larger democratic system. Given that, it seems plausible to think that, in different cases, the norm should carry relatively more or relatively less weight. Accordingly, this would also suggest that even if partisan gerrymandering violates representational equality, that transgression may be more or less significant depending upon other circumstances. Again, my argument makes room for this possibility.
B. Invidious Purpose
As noted above, White’s standard for defining an unconstitutional partisan gerrymander encompassed an intent as well as an outcome component. However, other opinions in the Supreme Court’s rulings on the topic have placed greater emphasis on intent or purpose. The most prominent example in this regard was Justice Stevens’s dissent in Vieth where he drew on the Court’s precedents on racial gerrymanders to state an intent or purpose-oriented test for determining the existence of an unconstitutional partisan gerrymander:
The racial gerrymandering cases therefore supply a judicially manageable standard for determining when partisanship, like race, has played too great of a role in the districting process. Just as race can be a factor in, but cannot dictate the outcome of, the districting process, so too can partisanship be a permissible consideration in drawing district lines, so long as it does not predominate. If, as plaintiff-appellant Furey has alleged, the predominant motive of the legislators who designed District 6, and the sole justification for its bizarre shape, was a purpose to discriminate against a political minority, that invidious purpose should invalidate the district.
Others have also emphasized, within these cases, invidious purpose as a central element of the harm encompassed within a partisan gerrymander. Justice Powell in Bandemer, for example, stated early in his concurrence that a litigant would have to show both an invidious purpose and an ill-effect against an “identifiable political group” to demonstrate the existence of an unconstitutional partisan gerrymander. And in subsequent discussion, it was clear that he was especially troubled by evidence of invidious purpose.
In language that echoes my focus on procedural integrity, Justice Powell emphasized the importance of impartial governance as demanded by the Equal Protection Clause—presumably a principle that Powell would also endorse as a prerequisite for democracy too:
The Equal Protection Clause guarantees citizens that their State will govern them impartially. In the context of redistricting, that guarantee is of critical importance because the franchise provides most citizens their only voice in the legislative process. Since the contours of a voting district powerfully may affect citizens’ ability to exercise influence through their vote, district lines should be determined in accordance with neutral and legitimate criteria. When deciding where those lines will fall, the State should treat its voters as standing in the same position, regardless of their political beliefs or party affiliation.
Finally, Justice Souter’s dissent in Vieth also set forth a multi-step process for establishing the existence of an unconstitutional partisan gerrymandering that likewise seemed preoccupied with smoking out invidious purposes to disadvantage opposing partisans.
Especially when compared to critiques of partisan gerrymandering based upon representational inequalities, this focus on purpose or intent aligns very closely with the concept of procedural integrity. As evident in the quotations above, a focus on invidious purpose leads to a preoccupation with events at an earlier stage of the democratic process; one might say that the focus here is on inputs first and outputs second. The focus on purpose also leads, at least conceptually, to the recognition that normative wrongs may be committed toward individuals when they are subject to a process that is corrupted by partisan-based intentions to disadvantage them regardless of the actual effects of those intentions. The reason for this is hinted at in the quotation offered above by Justice Powell: that the legitimacy of democratic processes hinges at least in part upon the appearance of impartial governance regardless of partisan identity. Finally, and as a corollary to the proceeding point, a focus on intent clarifies that the differential treatment of partisans under a given districting scheme may not necessarily be problematic if partisan motivations did not drive the choice of districting scheme.
Still, as much of the commentary on the topic recognizes, it seems implausible as a practical matter to hope for a total separation of partisan motives from the redistricting process. This was a point of emphasis for Justice Scalia in his opinion for the Court in Vieth and was repeated by Chief Justice Roberts in Rucho. But, perhaps more significantly, one finds measured concessions to the same point in opinions by others who are more sympathetic to the judicial regulation of partisan gerrymandering than Scalia was. For example, the flip side of Justice Stevens’s defense of a predominant-intent standard is an implicit concession to the constitutionality of restricting plans that may be motivated—but not predominately motivated—by partisan concerns. All of this potentially adds up to a more complicated and nuanced treatment of partisan-motivated actions for critics of partisan gerrymandering.
Building off of Justice Stevens’s opinion in Vieth, Michael Kang has put forth a more fully fleshed-out theory of invidious purpose in this context. Elaborating on what he refers to as a “norm against government partisanship,” he sees partisan motive as existing in a gray area between constitutionality and unconstitutionality. To be more precise, he argued that a partisan motive in a redistricting plan is not an unconstitutional motive in the sense that its mere presence would dictate the need for judicial redress. However, he also argued that, for the purposes of constitutional scrutiny, a partisan motive is also not a legitimate governmental purpose either. As such, if state actors are able to wholly justify a redistricting plan with reference to other, more traditional and neutral criteria such as compactness or contiguity, the plan would not run afoul of this norm against government partisanship even if partisan motives were, as a practical matter, somewhere in the mix of lawmaker intentions in a redistricting plan. On the other hand, if the contours of a redistricting plan could not be explained or justified without reference to partisan-driven motives, then because such a motive is not a legitimate one, such a plan would run afoul of the Constitution according to Kang.
However, it is perhaps in this complicated assessment of partisanship where my argument diverges from these purpose-based critiques of partisan gerrymandering. Again, the wiggle room in both Kang’s norm against government partisanship and in Stevens’s predominant-intent test seems a wise concession to political realities. But one might argue that these concessions do not go far enough. Partisan gerrymandering has been a persistent feature of American politics through extended periods of its history, so even a qualified principle against partisan motives in redistricting seems to be in some tension with historical practice. Further, recall that Justice Stevens’s argument about intent relied upon the Court’s prior cases dealing with racial gerrymandering. For Stevens, the analogies between racial discrimination and partisan-based discrimination in the gerrymandering context were strong. Still, I share some of the skepticism articulated by Justices Scalia and O’Connor in questioning how much support this analogy can provide for purpose-based critiques of partisan gerrymandering.
Nevertheless, I am inclined to agree with Stevens’s assessment in the present context. The reason why is precisely because the stakes surrounding partisanship and partisan make-up in legislative bodies are relatively high right now. I would hesitate to claim, however, that such circumstances have historically been universally true in American electoral politics. As such, because my argument is more dependent and sensitive to background political context, it aligns with purpose-oriented critiques of partisan gerrymandering for now. In different circumstances, my argument might diverge from these critiques; in situations where the legitimacy of the democratic system was less reliant on procedural integrity, I find it plausible that partisan motivations in electoral redistricting may be significantly less worrisome. Or stated otherwise, I find it plausible that, in certain circumstances, partisan-based motives in redistricting may pose no normative qualms from the standpoint of democratic theory.
C. Structural Dysfunction
Aside from its potential to create representational inequalities or to embody partisan-based discriminatory motives, a third way to characterize the harms of a partisan gerrymander might be to focus on structural dysfunction. Aside from troubling outcomes or motives, the problem with partisan gerrymandering—if viewed from a broader and more systemic perspective—is that it potentially inhibits the free-flowing and dynamic nature that electoral politics should ideally possess. Thus, in his dissent in Vieth, Justice Breyer described a potential harm of partisan gerrymandering as one of unjustified entrenchment by a political minority:
[T]hese considerations can help identify at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remedial, abuse, namely, the unjustified use of political factors to entrench a minority in power. By entrenchment I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power. By unjustified entrenchment I mean that the minority’s hold on power is purely the result of partisan manipulation and not other factors.
In a similar vein, Issacharoff and Pildes have emphasized a norm of electoral competition that, like Breyer’s argument, is also preoccupied with blockages or malfunction in the democratic process.
In their article Politics as Markets, Issacharoff and Pildes set forth this argument by beginning from the presumption that democracy is best served by facilitating competition. Heightened electoral competition ensures that a broader spectrum of the electorate will be politically relevant. Under this view, incumbents who are forced to vigorously compete in reelection efforts will be incentivized to remain responsive to the preferences of the broader public. Further, as Issacharoff and Pildes emphasized, competition might also prevent harms from being imposed upon the electorate by political elites’ intent on maintaining their hold on power.
In their initial article, Issacharoff and Pildes applied this theory to a number of issues including the White Primary Cases, a context where the leaders of a dominant Democratic Party in the South maintained a strong grip on power in their party, and in their region, through practices that stifled electoral competition. In a subsequent article, however, Issacharoff squarely applied the principle of competition to partisan gerrymandering.
By its very terms, it is unsurprising that a competition-based theory of democracy would lead to a critique of partisan gerrymandering. In the context of a dominant party seeking to redraw district lines to favor its own candidates, reduce the competitive pressures on its candidates, and maximize its hold on power, partisan gerrymandering clearly stands at odds with an ideal of promoting electoral competition. Stated otherwise, actions undertaken to promote competition would clearly function to check, mitigate, or eliminate some of these behaviors.
Similar concerns might be raised in the context of a bipartisan gerrymander, where both parties collaborate on a redistricting plan to maximize each party’s number of “safe” or noncompetitive seats according to some pre-determined split. Here, the competitive ideal would also be violated. In such instances, harm would be imposed on the candidates and voters situated outside the two “insider” parties. A harm might also fall on challenger candidates from within each of the insider parties who might have to confront an enhanced advantage enjoyed by their own party’s incumbents. Likewise, in this context, a focus on electoral competition could help identify what is wrong with bipartisan gerrymanders and illuminate necessary changes.
It is clear that Issacharoff and Pildes take a broader view of electoral dysfunction than Justice Breyer. Whereas Breyer’s concern lay with minority entrenchment, a number of other forms of entrenchment pose issues for Issacharoff and Pildes’s norm of competition as well—with potential victims including not just partisan majorities who have been locked out of the electoral process, but also unfairly disadvantaged minority parties, the broader electorate (perhaps across both parties), and legislative challengers to incumbent officeholders.
As with the preceding arguments on representational inequality and invidious purpose, it is not hard to glean the underlying normative democratic principles in these arguments. Breyer, Issacharoff, and Pildes share an ideal of democracy as appropriately fluid and subject to reversibility. As Breyer, Issacharoff, and Pildes all note, part of why we should expect this in a legitimate democratic system is because of the importance of democratic responsiveness: to the extent that democratic processes are actually responsive to popular will, those processes must be able to reflect and manifest shifts in opinion within the electorate. Again, clearly such goals would be undermined by self-dealing behavior on the part of political majorities, political minorities, or incumbent politicians. In addition, it is not hard to intuit other benefits to the vitality of a democratic system that emanate from its flexibility and openness to change. As noted above, widespread perception of the potential for change or reversibility within the electorate provides valuable incentives for political losers to stay invested in the system and to hope for different outcomes in future elections.
This concern with competition and the responsiveness of democratic processes to public opinion can readily be linked to an argument about the prerequisites for democratic legitimacy. In this respect, structural dysfunction-based critiques of partisan gerrymandering align closely with my argument about procedural integrity. At root, both arguments are preoccupied with protecting certain structural preconditions for democratic governance. Further, one might also say that the concern with illegitimate self-dealing by elected officials in these arguments speaks to a concern that aligns with the norm of procedural integrity.
Still, the arguments also diverge for reasons related to some of the points already previewed in previous sections. Just as different circumstances may make the norm of procedural integrity more or less crucial as a substructural support for democracy, the same might easily be said about minority entrenchment or noncompetitive elections. In the abstract, neither minority entrenchment nor noncompetitive elections sound terribly attractive. But the U.S. Senate stands out as a familiar and nonnegotiable monument to minority entrenchment within our still-functioning democracy. And some forms of noncompetition that Issacharoff and Pildes criticize—such as the bipartisan gerrymander—may strike others as relatively less concerning (or even defensible as facilitating a form of representational equality). Thus, in the same way that I am reluctant to prioritize representational equality or the prohibition of partisan motives in redistricting across all historical and political contexts, I have a similar reluctance to do the same for arguments based upon certain forms of democratic-structural dysfunction.
IV. Partisan Gerrymandering in the Present
The upshot of the arguments in the proceeding Parts is that procedural integrity is just one component—albeit a significant one—that influences the legitimacy of the broader democratic system. Given the array of other factors that likely influence the vitality or weakness of democratic legitimacy at any given moment in time, one can accordingly imagine that the importance of procedural legitimacy may vary in different circumstances. That is, in some circumstances, it may be especially important for our electoral practices to align with procedural integrity. In other circumstances, where democratic legitimacy is perhaps amply supported by other factors, procedural integrity may be less crucial—and thus violations of it in the form of partisan gerrymandering may look less troubling from the standpoint of democratic theory.
In Part II, I began with the presumption that a core purpose of democratic procedures is to resolve—at least temporarily—conflicts within the polity. Elections reveal to both legislators and voters where the collective sentiment of the polity lies; with that information in hand, the polity can, in theory, make a decision to move on to new conflicts or to continue with old conflicts. If conflict resolution or management is a fundamental purpose of democratic processes—and if we assume that democracy’s legitimacy is tied to the successful execution of this purpose—then I would highlight three interlocking conditions within contemporary American politics that pose a significant threat of undermining this conflict-resolving purpose. Accordingly, the presence of these three interlocking conditions would also signal the need for procedural integrity and some check of partisan gerrymandering practices. They are, in turn: (1) the existence of a broad policy space within which partisan conflict, channeled through federal elections, has the potential to touch significant domains of American society; (2) the mapping of sharp ideological divisions in society onto partisan divisions; and (3) a signaling by political elites of their willingness to drive forward on significant changes in American politics and society. I would argue that to the extent these conditions exist, and are widely recognized within the electorate, they would indicate the existence of significant pressure or stress upon the conflict-resolving function of democratic procedures. As such, this would be a context where the costs of partisan gerrymandering for democratic legitimacy would be substantial. Let me discuss each condition in turn.
A. Significant Policy Consequences
The significance of procedural integrity and partisan gerrymandering for strengthening or weakening democratic legitimacy is clearly related to potential policy consequences. If significant policy consequences hinged on the outcome of federal elections, then obviously a violation of procedural integrity through partisan gerrymandering would be more meaningful and would pose a greater threat to the conflict-resolving function of democratic processes. At the same time, if a given partisan gerrymander was likely to implicate a less significant set of policy questions, the violation of procedural integrity constituted by the gerrymander would seemingly have smaller consequences for democratic legitimacy. Losing partisans may still feel considerable annoyance about their treatment under a partisan gerrymandering scheme, but if major policy decisions were being resolved in some other institutional venue or through some other means, one imagines that their annoyance with the gerrymander would be more limited.
However, since at least the New Deal era, we inhabit a world where the consequences of federal elections are incredibly significant because of the vast power of the federal government. This is not to claim that anything and everything is on the table for enactment or repeal following any given federal election. But there is a common expectation that the federal government or the national political parties should consistently reflect our values and policy positions on an incredibly wide array of issues. This point is strongly echoed in Orren and Skowronek’s description of the modern American state as a “policy state” where we expect the federal government to be “doing more over a broader range of affairs.” Orren and Skowronek state the point well in saying:
[T]he cushion for consensus once provided by decentralization has been displaced by changes stretching across an immense span of social and political change. Our claim is not that the policy state is, by some gradual and circuitous route, responsible for the result. It is, rather, that the federal government’s response to these changes elevated the significance of national policy in areas where there was once deference to states and localities, and, with particular regard to polarization, that national policy has turned into a lightning rod, concentrating social divisions that before this were scattered and submerged.
In this, their argument aligns with a much earlier observation by E.E. Schattschneider on how the election of 1932 ushered in a “nationalization of American politics.” Somewhat related to the points I am making here, Schattschneider also observed that “[t]he nationalization of politics, by increasing the likelihood of relatively frequent alterations of the parties in power, greatly enhances the importance of elections . . . and of electioneering political organizations.” Making a related argument, Hugh Heclo stated: “By the beginning of the 1960s, it took less effort than it had in the New Deal years to teach Americans to focus on Washington for societal problem solving. By the time the sixties era ended, most people seemed able to look nowhere else.”
Applied to the issue of partisan gerrymanders then, it should be apparent why a more robust policy state as a background condition makes the prospect of partisan gerrymanders more problematic from the standpoint of maintaining democratic legitimacy. To the extent that partisanship drives the creation of democratic procedures that will bear upon the most pressing social, economic, and political controversies of the day, a concern arises that the gap between decision-making rule and decision is disturbingly small, and that this lack of separation will have significant policy consequences.
B. Mapping Ideological Divisions in American Society onto Partisan Divisions
Even if major policy consequences might hang in the balance of federal elections, the consequences of partisan manipulation of legislative district lines might still be less worrisome if the major points of conflict and division in society simply did not map on well to partisan divisions. If, say, the dominant cleavage in American society was geographic—the coasts versus the interior—and both parties were well represented in both regions, we might expect geographic-based conflicts to play out in some mix of intra-party and inter-party conflict. We would not, however, expect it to solely play out as inter-party conflict. Indeed, this is how the slavery issue played out in the pre-Civil War era between the Democrats and Whigs. Core support for slavery from Southern politicians mapped inexactly onto both political parties—each of which had a northern and southern wing.
This is not to suggest that when societal conflicts fail to map onto partisan differences, the conflicts themselves are somehow less important or significant. But it is to suggest that when the relationship between societal and party conflict is inexact or problematized, attendant concerns about the partisan manipulation of legislative districting might be lessened. In instances when such manipulation occurs, the logic underlying the choice of decision rule—partisanship—would not map on as well to the logic or logics underlying the major conflicts that will ultimately be resolved by those processes. In other words, we would have some separation between the purposes behind a decision-making rule and the substance of the decisions likely to be produced by that rule.
With these considerations in mind, the rise of partisan-based polarization suggests cause for concern. A starting point might be to consider two types of markers: one would be indicators of how much internal homogeneity exists within each party. A second would be indicators of ideological divergence between the two parties. To the extent that we do see greater internal homogeneity within each party and greater ideological divergence between the two major parties, we might have greater confidence that ideological conflict in society aligns with partisan conflict and division.
Indeed, a number of scholars have contributed to a growing literature on political polarization in American politics that has singled out these very dynamics as distinctive about the contemporary political context. Although they focus on different data, and thus offer some different starting points for these trends, these scholars tend to converge in seeing a long-term process of increasingly ideologically uniform parties emerging in recent years, especially in the last two decades. Relative to the first two-thirds of the twentieth century, we do see greater alignment of societal differences with partisan differences. Mann and Ornstein sum up the sentiment well in stating, “Partisan polarization is undeniably the central and most problematic feature of contemporary American politics. Political parties today are more internally unified and ideologically distinctive than they have been in over a century.” Abramowitz likewise underscores this point by emphasizing specifically the rise of “negative partisanship,” which is partisanship driven by strongly negative feelings towards opposing partisans. As he states:
Over the past several decades, as partisan identities have become increasingly aligned with other social and political divisions, supporters of each party have come to perceive the other party’s supporters as very different from themselves in values and social characteristics as well as political beliefs. This perception has reinforced their strongly negative opinions of the other party’s elected officials, candidates, and supporters. Such negative perceptions are further aggravated by partisan news sources.
Though a number of different arguments have been advanced to explain deeper, underlying causes for this dynamic, what is uncontroversial are two significant shifts that disrupted the party alignments of the middle of the twentieth century. The first was the departure of conservative southern Democrats from that party and their movement to the Republican party. The second was the shift of Republicans based in the coastal portions of the country—including, especially, those in the Republican strongholds of the Northeast—from that party to the Democratic party. The end result has been a more uniformly conservative Republican party and a more uniformly liberal Democratic party, each shed of the moderate and conservative wings, respectively, that they had possessed in prior decades.
Thus, unlike the situation confronting the Democratic and Whig parties in the antebellum era, where slavery was the dominant political issue and where each party had supportive and less supportive/oppositional wings on that issue, present party alignments produce a different situation. With more ideologically homogeneous parties, the likelihood of major social conflicts mapping onto partisan alignments is greater in the present. Perhaps another way of getting at the same point is to note the absence of much cross-party coalition-building in the present time. This is not to deny the existence of some bipartisanship in the present political environment; twelve Republican senators did, after all, join a unified group of Democratic senators to overturn President Trump’s declaration of a national emergency at the southwestern border with Mexico. But when one thinks of meaningful cross-party coalitions, such as the progressive Democratic and moderate/liberal Republican coalition that converged to bring about the Civil Rights Act of 1964 and the Voting Rights Act of 1965, it is hard to identify anything similar to that in recent history.
In sum, sharp overlap of societal and partisan divisions in the present time provides at least initial reason to be concerned with the maintenance of procedural integrity and to be deeply concerned about the specter of partisan gerrymandering. By definition, a partisan logic drives partisan gerrymandering. But when a partisan logic also aligns with the major social conflicts of the day, there is a heightened risk that democratic structures will be chosen by partisans with an eye to gaining advantage in those very conflicts. The temptation to depart from a norm of procedural integrity will be significant. At the same time, the subsequent risks to democratic legitimacy are also apparent: partisan gerrymandering undermines the validity of democratic processes as a tool for resolving those conflicts.
C. Willingness of Political Elites to Initiate Major Political Change
If partisan gerrymandering were deployed in a political community where societal divisions mapped onto partisan divisions, and significant policy consequences potentially hung in the balance, one concerned with democratic legitimacy would have more than enough reason to worry. But a third consideration, perhaps somewhat implicit in the preceding two sections, is also worth spelling out as relevant in either adding to or reducing this worry. Even if the architects of a partisan gerrymander had uncomplicated partisan incentives to utilize redistricting toward achieving significant and far-reaching policy goals, there might remain a chance that these political actors could exercise a form of self-restraint. That is, even if some set of aggressive political actions might be allowed, or even invited, subsequent to the use of a partisan gerrymander by redistricters, it is at least theoretically possible that electoral winners might nevertheless feel constrained once in office by some set of fundamental ideals, institutional norms, or status-quo policy commitments. If such constraints were present, widely acknowledged, and robust enough, perhaps their presence might alleviate the more serious threats posed by partisan gerrymanders to democratic legitimacy. On the other hand, to the extent that this was not the case, anxieties about partisan gerrymanders would be even more substantial.
Earlier generations of political scientists referred to these constraints as deeply entrenched “rules of the game.” Such rules could be formally entrenched in law or policy, or they might exist at a more basic level of fundamental social interaction. What defines them as rules of the game, as opposed to mere value or policy preferences, was the depth and breadth of societal support for them. Thus, Robert Dahl stated the following:
Prior to politics, beneath it, enveloping it, restricting it, conditioning it, is the underlying consensus on policy that usually exists in the society among a predominant portion of the politically active members. Without such a consensus no democratic system would long survive the endless irritations and frustrations of elections and party competition. With such a consensus the disputes over policy alternatives are nearly always disputes over a set of alternatives that have already been winnowed down to those within the broad area of basic agreement.
Around the same time, David Truman pressed the same point with even greater emphasis in stating that these rules of the game:
[A]re those interests or expectations that are so widely held in the society and are so reflected in the behavior of almost all citizens that they are, so to speak, taken for granted. . . . These widely held but unorganized interests are what we have previously called the “rules of the game.” Others have described these attitudes in such terms as “systems of belief,” as a “general ideological consensus,” and as “a broad body of attitudes and understandings regarding the nature and limits of authority.”
Definitively assessing the status and vitality of rules of the game in modern American politics is a difficult question to answer, to say the least, and beyond the scope of this Article. However, I would make the more modest claim that, in the contemporary era, significant numbers of political elites in both parties view themselves and/or their opponents as willing, to a relatively greater degree, to contemplate more dramatic departures from established policy expectations. That is, separate from the question of actual policy outcomes, political elites are exhibiting a relatively greater willingness to frame their actions and/or the actions of their opponents as clear and conspicuous departures from established policy boundaries or de facto “rules.” Even this relatively more modest claim remains, on its terms, a broad one and not easy to demonstrate in any definitive way. Given this, and given that this may be a more controversial claim than the preceding arguments in this Part, the discussion in this Section will be relatively lengthier.
Below, I offer at least some tentative support on elite abandonment of established policy boundaries by focusing on two key ideological themes, one from each party. With respect to each theme, my hope is to demonstrate how the present-day Democratic and Republican parties are undergoing noteworthy changes, as old ideological givens are being challenged and partly discarded while each party moves on to new conceptual and rhetorical terrain. In doing so, leaders from both parties have clearly signaled to the electorate a willingness to contemplate major shifts in policy. Specifically, the discussion below will focus on two issues that have been front and center in recent political debate and that are likely to remain central in the near future: economic inequality and immigration.
My method for demonstrating this conceptual transition will be to focus on the policy ideas in the rhetoric of recent Democratic and Republican presidents and presidential candidates. This approach in itself merits some additional elaboration. Given that my focus is on partisan gerrymandering for federal House elections, why focus on presidential rhetoric as the benchmark for illuminating the broader context behind these elections? Indeed, if we lived in an era where congressional elections were driven by local politics, presidential rhetoric might seemingly have very little to do with how individuals voted for their House representative.
As political polarization has increasingly dominated discussion in political science, a number of commentators have emphasized the intersection of partisanship with the office of the president. Among other things, scholars have emphasized that contemporary party politics is very much nationalized, and president-driven. Presidents exert tremendous influence in orienting or reorienting the structures of their respective party organizations. And most relevant for my argument, these scholars emphasize how contemporary presidents exert influence within the electorate by driving their party’s voters to support the party’s congressional candidates. At the same time, presidents exert a negative influence in driving opposing partisan voters to support the other party’s congressional candidates. Skinner states the point as follows:
The president, rather than floating above the political system as “leader of all the people,” leads the battalions of a partisan army into the battlefield of contemporary Washington. The parties that these presidents lead are not the decentralized, nonideological federations of the nineteenth century. They are nationalized, ideologically coherent, and headquartered in Washington—ultimately in the Oval Office.
Gary Jacobson has put the point even more emphatically in the aftermath of the 2018 midterm elections: “Midterms have grown increasingly nationalized, partisan, and president centered over recent decades, but Trump’s persona, rhetoric, and policies extended all of these trends into uncharted territory.”
In short then, if voters are contemplating the policy consequences stemming from their votes for a House candidate, the odds are decent that the policy consequences most have in mind are national ones that are closely tied to a president or presidential candidate. To the extent that a president or presidential candidate is willing to contemplate major shifts in policy, it seems plausible that voters in the present day would accordingly view congressional elections (along with presidential elections, of course) as significant moments of decision on these questions.
For at least this reason, it is clear why partisan gerrymandering commands so much attention in the contemporary context: in the hands of motivated political elites, it seemingly brings the promise of delivering partisan-driven policy shifts of great significance. For the same reasons, however, it is also clear why partisan gerrymandering in this context carries a substantial threat to democratic legitimacy that may not exist in other circumstances: in the present context where partisan polarization coexists with a powerful federal governmental apparatus, and where major policy shifts are in the air, the procedural integrity of the democratic process seems a more central prerequisite of democratic legitimacy. To the extent that major questions of policy are going to be determined by congressional elections, violations of procedural integrity—in the form of partisan gerrymandering—will accordingly render those determinations suspect.
1. Economic Inequality in the Democratic Party
When Barack Obama ascended to the presidency after the 2008 election, he inherited an economy that was in freefall. It was no surprise then that economic concerns were an enduring preoccupation during his presidency, even when the economy was strong towards the end of his second term. In looking at Obama’s rhetoric on economic inequality in various public statements and speeches during these two terms, a spirit of universalism and moderation is evident throughout. To be sure, Obama did not shy away from singling out specific actors or actions for public criticism. Indeed, with respect to the unpopular banking bailout that occurred prior to his presidency, he had no difficulty in singling out irresponsible behavior by those banks, albeit in a relatively moderate tone:
I understand that when the last administration asked this Congress to provide assistance for struggling banks, Democrats and Republicans alike were infuriated by the mismanagement and the results that followed. So were the American taxpayers; so was I.
So I know how unpopular it is to be seen as helping banks right now, especially when everyone is suffering in part from their bad decisions. I promise you: I get it.
But I also know that, in a time of crisis, we cannot afford to govern out of anger or yield to the politics of the moment.
If one defines populist rhetoric in a basic sense as being characterized by an antipathy or aversion to elites, there were certainly elements of populist rhetoric in Obama’s rhetorical toolkit.
Still, notwithstanding this, targeted criticism was not the dominant theme of Obama’s rhetoric on the economy and economic hardship. Much more prominent and noticeable was a different sensibility: when Obama discussed the economic hardships faced by ordinary Americans, the wrongdoer or the cause of that hardship was described in more abstract and systemic ways:
That world has changed. And for many, the change has been painful. I’ve seen it in the shuttered windows of once booming factories, and the vacant storefronts on once busy Main Streets. I’ve heard it in the frustrations of Americans who’ve seen their paychecks dwindle or their jobs disappear[–]proud men and women who feel like the rules have been changed in the middle of the game.
They’re right. The rules have changed. In a single generation, revolutions in technology have transformed the way we live, work and do business. Steel mills that once needed 1,000 workers can now do the same work with 100. Today, just about any company can set up shop, hire workers, and sell their products wherever there’s an Internet connection.
That is, Obama talked about the economic hardship of average Americans as an unfortunate consequence of larger, impersonal, systemic forces. Relatedly, when his comments turned to policy solutions or ways to redress this economic hardship, the answers he provided did not contemplate attempts to reverse those forces or to reject them. Rather, the dominant theme was prospective in seeking ways to mitigate and contain the worst ill effects of seemingly inevitable trends. This was Obama’s comment on education in his widely noted speech on the economy at Osawatomie, Kansas in 2011:
The world is shifting to an innovation economy and nobody does innovation better than America. . . .
But we need to meet the moment. We’ve got to up our game. We need to remember that we can only do that together. It starts by making education a national mission[—]a national mission. Government and businesses, parents and citizens. In this economy, a higher education is the surest route to the middle class.
In short, Obama’s rhetoric was not completely free of any populist influence. He was willing to recognize the peculiar hardships face by certain classes of individuals. But populism was never more than a secondary theme for Obama; when it came to actually diagnosing the causes of those hardships, he focused his comments on prospective optimism, as opposed to retrospective blame of certain constituencies for those hardships.
Whether due to Trump’s narrow victory for the presidency in 2016 with the help of white, blue-collar workers in the upper Midwest, or due to a longer-term anxiety about economic inequality in the Democratic Party—or due to some combination of both—there is a significant portion of the Democratic Party in 2020 that is hungrier for a more aggressive form of economic populism. In this, one might plausibly say that “the rules of the game” in terms of the policy, ideology, and rhetoric on economic inequality within the Democratic Party are accordingly in the midst of a revision—and this revision may yet prove to be a meaningful and lasting departure from where things stood through Obama’s two terms.
This populist sensibility is not present, of course, in equal intensity across the entirety of the Democratic Party. Indeed, perhaps undercutting my argument to some extent, it was the case that the Democratic Party’s presidential nominee in 2020 was Joe Biden, who was and continues to be commonly seen as a standard-bearer for the moderate wing of the party. Still, populism powered two very high-profile candidates for the Democratic presidential nomination in Bernie Sanders and Elizabeth Warren. Second, even though they ultimately lost to Biden, their influence on the party may be measured in part by Biden’s shift to the left during the course of his presidential campaign after securing the party’s nomination.
For these reasons, Sanders and Warren remain, I would argue, valid gauges of a substantial portion of Democratic Party ideology. And in looking at public statements by Sanders and Warren, at least three themes stand out to demarcate points of departures from Democratic Party orthodoxy, as represented by Obama.
The first item is simple enough to state: for both Sanders and Warren, the theme of inequality is central to their political ideology, and to their diagnosis of the ills in contemporary American society, in a way that that was not true for Obama. These are the stark terms in which Sanders and Warren have characterized the problems facing the nation in 2019:
[Sanders:] When we talk about oligarchy, let us be clear about what we mean. Right now, in the United States of America, three families control more wealth than the bottom half of our country, some 160 million Americans. The top 1% own more wealth than the bottom 92% and 49% of all new income generated today goes to the top 1%. In fact, income and wealth inequality today in the United States is greater than at any time since the 1920s.
And when we talk about oligarchy, it is not just that the very rich are getting much richer. It is that tens of millions of working-class people, in the wealthiest country on earth, are suffering under incredible economic hardship, desperately trying to survive.
[Warren:] Today, millions and millions and millions of American families are also struggling to survive in a system that has been rigged by the wealthy and the well-connected.
Hard working people are up against a small group that holds far too much power, not just in our economy, but also in our democracy.
Second, and as already implied by the above comments, while Obama singled out Wall Street banks for criticism in the aftermath of the banking bailout, the breadth and intensity of criticism of Wall Street by Sanders and Warren is of a different kind:
[Sanders:] Today, we now see a handful of billionaires with unprecedented wealth and power.
We see huge private monopolies[—]operating outside of any real democratic oversight and often subsidized by taxpayers[—]with the power to control almost every aspect of our lives.
They are the profit-taking gatekeepers of our health care, our technology, our finance system, our food supply and almost all of the other basic necessities of life. They are Wall Street, the insurance companies, the drug companies, the fossil fuel industry, the military industrial complex, the prison industrial complex and giant agri-businesses.
[Warren:] Over the years, America’s middle class had been deliberately hollowed out.
And families of color had been systematically discriminated against and denied their chance to build some security.
It started very quietly. The richest and most powerful people in America were rich, really rich, but they wanted to be even richer — regardless of who got hurt.
So, every year, bit by bit, they lobbied Washington and paid off politicians to tilt the system just a little more in their direction.
And year by year, bit by bit, more of the wealth and opportunity went to the people at the very top.
Indeed, this leads to a third point of departure: for Sanders and Warren, economic elites are not only the cause of the economic ills and hardships faced by other Americans. More than that, they argue that the corruption perpetrated by these economic elites extends to the very foundations of American democracy:
[Sanders:] In the year 2019 the United States and the rest of the world face two very different political paths. On one hand, there is a growing movement towards oligarchy and authoritarianism in which a small number of incredibly wealthy and powerful billionaires own and control a significant part of the economy and exert enormous influence over the political life of our country.
On the other hand, in opposition to oligarchy, there is a movement of working people and young people who, in ever increasing numbers, are fighting for justice.
[Warren:] Well, let me tell you something, these same rich guys have been waging class warfare against hard-working people for decades — I say it’s time to fight back!
To protect their economic advantages, the rich and powerful have rigged our political system as well.
They’ve bought off or bullied politicians in both parties to make sure Washington is always on their side.
Some of them have even tried to buy their way into public office.
So today, our government works just great for oil companies and defense contractors, great for private prisons, great for Wall Street banks and hedge funds, it’s just not working for anyone else.
The form of populism on display in 2019, then, is a more assertive and combative one. If Obama’s message was one of empathy and hope, the message put forth by Sanders and Warren speaks more to anger and urgency.
2. Immigration in the Republican Party
This evolution on economic inequality in the Democratic Party carries strong similarities to the evolution on immigration in the Republican Party. Immigration reform was a clear priority during the presidency of George W. Bush. The topic was consistently mentioned in his State of the Union addresses and was the subject of two major addresses during his presidency. Bush’s comments on the topic appear, especially by contemporary standards, to be extremely moderate—if not progressive—for a Republican president.
Bush did not shy away from core themes that have long remained central points of concern for conservative Republicans. Among them was a concern about ensuring adequate control of the southern border. As he stated in a speech in 2006: “We must begin by recognizing the problems with our immigration system. For decades, the United States has not been in complete control of its borders. As a result, many who want to work in our economy have been able to sneak across our border and millions have stayed.”
Second, Bush emphasized the primacy of American economic interests in shaping immigration policy. That is, immigration law and policy should be driven by what was best for Americans and the United States, and this led to his proposal for a temporary-worker program:
I support a temporary worker program that would create a legal path for foreign workers to enter our country in an orderly way, for a limited period of time. This program would match willing foreign workers with willing American employers for jobs Americans are not doing. Every worker who applies for the program would be required to pass criminal background checks. And temporary workers must return to their home country at the conclusion of their stay. A temporary worker program would meet the needs of our economy, and it would give honest immigrants a way to provide for their families while respecting the law.
Third, Bush also emphasized the significance, for both legal reasons and pragmatic reasons, of making clear demarcations between legal and illegal immigrants; migrants who chose between these two different channels of entry deserved to be treated differently. This concern was intimately linked to perhaps the core concern of conservative Republicans that there be no blanket amnesty for undocumented immigrants. This was Bush’s comment on the topic in discussing his proposal for a temporary-worker program in 2004:
[W]e must face the reality that millions of illegal immigrants are already here already. They should not be given an automatic path to citizenship. This is amnesty, and I oppose it. Amnesty would be unfair to those who are here lawfully and it would invite further waves of illegal immigration.
Still, these policy principles were balanced and moderated by more progressive notes in Bush’s rhetoric on immigration policy and reform. He consistently referenced the many strong contributions that immigrants made for the betterment of American society. The preceding point dovetailed with a more expansive historical point: Bush linked the presence and status of undocumented immigrants in the contemporary context with a celebratory history of immigration in this country. That history, in turn, encompassed a narrative—still applicable to the present context—of worthy immigrants striving towards upward economic mobility in American society:
Many undocumented workers have walked mile after mile, through the heat of the day and the cold of the night. Some have risked their lives in dangerous desert border crossings, or entrusted their lives to the brutal rings of heartless human smugglers. Workers who seek only to earn a living end up in the shadows of American life[—]fearful, often abused and exploited. When they are victimized by crime, they are afraid to call the police, or seek recourse in the legal system. They are cut off from their families far away, fearing if they leave our country to visit relatives back home, they might never be able to return to their jobs.
Finally, in emphasizing this point, there was a strong note of basic humanity in how Bush discussed undocumented immigrants:
Some in this country argue that the solution is to—is to deport every illegal immigrant and that any proposal short of this amounts to amnesty. I disagree. It is neither wise nor realistic to round up millions of people, many with deep roots in the United States, and send them across the border.
In the 2016 presidential election, Donald Trump made immigration a centerpiece of his presidential campaign. Carrying forward the more conservative elements of Bush’s rhetoric on immigration, Trump went much further in targeting undocumented immigrants as one of the scapegoats for his populist brand of Republican Party doctrine. This scapegoating encompassed at least three elements. The first was a consistent focus on alleged criminality of undocumented immigrants. In announcing his bid for the Republican presidential nomination in June 2015, Trump made the following comment to widespread notice in public discussion:
When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.
But I speak to border guards and they tell us what we’re getting. And it only makes common sense. It only makes common sense. They’re sending us not the right people.
MS-13 and gang violence, in particular, was a very commonly repeated theme in Trump’s public statements: “Their new platform, what they want to do[—]the Democrat Party, they want to abolish ICE. So in other words, they want to let MS-13 rule our country. That’s not going to happen.” And in 2018, the migrant caravan became a focal point of his remarks in the same vein.
Second, in response to the social ills allegedly wrought by undocumented immigrants, the construction of a wall at the southern border became a central theme of Trump rhetoric. Third and finally, Trump has linked his antipathy to undocumented immigrants with the concern that these individuals were illegally voting and corrupting American democracy.
In some states, Democrats are even trying to give illegal immigrants the right to vote. They want to give them the right to vote.
Yeah, what about all of those people that are waiting in line for 7, 8, 9, 10 years trying to get into our country, they don’t have the right to vote. We believe that only American citizens should vote in American elections . . . [w]hich is why the time has come for voter ID like everything else, voter ID.
Thus, as with the Democrats on economic inequality, a more aggressive anti-immigration stance has taken hold of the Republican Party. The established boundaries for this debate during the Bush presidency are clearly no longer applicable in 2020.
One might imagine that, at certain moments in American politics, political parties may not seem particularly predisposed to significantly disrupt the status quo in central areas of policy. In the context of economic inequality and immigration, this would be an accurate description during the presidencies of Obama and George W. Bush, respectively. However, the willingness of Democratic and Republican Party leaders to embrace the prospect of disruption, combined with a background context of partisan polarization, should give rise to particular concerns about ensuring democratic legitimacy through procedural integrity. When conflict is heightened in this way, fairness in the processes of conflict resolution becomes especially crucial. At the same time, violations of procedural integrity in the form of partisan gerrymandering pose a particular threat to the democratic legitimacy in this context for the very same reason.
V. Judicial Pathways for Reform
To briefly recap, I started with a claim that partisan gerrymandering constitutes a violation of a basic democratic norm of procedural integrity. The significance of this violation or harm, however, might vary given that at different moments in time, procedural integrity may be a relatively more or less significant contributor to the legitimacy of the larger democratic system. In the preceding Part, I argued that procedural integrity is an especially important contributor to democratic legitimacy in the present time due to three characteristics of contemporary democratic politics. The basic portrait of the present-day political system that emerges from substantive consideration of these conditions is one of highly competitive and highly consequential federal elections; as such, the incentives for politicians to bend the rules of electoral competition are high, and the importance of procedural integrity for ensuring democratic legitimacy accordingly looms larger.
Within this context, the next obvious question to ask is: what might be done, given the present context, and given the challenge to democratic legitimacy posed by partisan gerrymandering? Within the literature and within the key Supreme Court opinions, two basic answers have emerged to this question. The first has been to look to nonlegislative, institutional entities to regulate or police partisan gerrymandering. This idea of looking outside the democratic process to cure certain procedural defects within it is a long-running theme in constitutional law and finds ready support in a number of precedents beginning with the Court’s rulings on malapportionment. This view runs through all of the judicial arguments mentioned in Part II that advocated for federal judicial involvement in regulating partisan gerrymandering. Furthermore, the same sensibility seemingly informs the call by judges and scholars to look to independent commissions to manage redistricting.
Perhaps the common underlying assumption from these various proposals—with respect to their assumptions about contemporary politics—is a belief that the threat of legislators seeking to engage in partisan gerrymandering is more or less a fact of life. Legislators concerned about their reelection and securing power for their political party will always be motivated to engage in partisan gerrymandering and will always pose a threat in carrying out such plans. Given this, the best that the political system can do is to provide a checking point elsewhere in the system, or, more ambitiously, it might take the task of district line-drawing away from these legislators and place that task in courts or independent commissions. In this way, the democratic norm of procedural integrity can be protected and entrenched by institutional entities outside the democratic process.
Despite their obvious appeal for critics of partisan gerrymandering, I would offer at least one cautionary point about the value of more aggressive interventions by nonlegislative institutional actors in this arena. Especially in this polarized political context, it is not clear that courts or independent commissions necessarily have the credibility to restructure democratic processes and not suffer from the familiar accusations of partisan bias that track legislative actions. In the current context, outcomes seemingly take priority over everything else; in the event that a political party was disadvantaged by a redistricting plan, one might worry that charges of partisan bias—and a subsequent weakening of democratic legitimacy—might occur regardless of whether the plan was created by a legislative body, a court, or an independent commission. Put more simply, voters might believe that violations of procedural integrity could occur just as easily with partisan judges or partisans on an independent commission, as they might within a state legislative body.
This is certainly a worry that has been voiced by those more skeptical of intervention by judicial actors or independent commissions in redrawing districting lines. Even though such institutions take the task of line-drawing some distance away from the center of partisan politics in the legislature, that greater distance created may not add up to all that much. As Nathaniel Persily has stated with regard to alternative methods of redistricting, “[I]t is almost impossible to design institutions to be authentically nonpartisan and politically disinterested.” Bruce Cain has registered similar skepticism, specifically with respect to independent commissions. As he states:
[T]o the surprise of no one who has studied redistricting closely, independent citizen redistricting commissions have not eliminated political controversy and partisan suspicions. . . . If the trend toward greater partisan polarization continues, supermajority rules and bipartisan composition could ultimately lead independent citizen commissions to political deadlocks, particularly if dissatisfied groups and political parties think they can get a better deal from the courts or the initiative process.
And more recently, this concern was clearly front and center for Chief Justice Roberts in contemplating a more aggressive role for the federal courts in policing partisan gerrymandering:
[This] expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives. Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.
In short, the worry about aggressive judicial intervention articulated here is one related to a fear articulated by Justice Frankfurter in Baker v. Carr about the courts becoming politically entangled in controversial issues. The issue of partisanship is so weighty at the present time that it likely cannot help but negatively affect any institution that touches it.
If not judicial intervention, or intervention by independent commission, then what else is possible? The enduring hope of those skeptical of intervention, of course, is that solutions to the problem of partisan gerrymandering may emerge from within the political system. Yet on its own, these hopes seem unrealistic given how poorly electoral incentives align with the goal of regulating partisan gerrymandering. Perhaps more promising, one might argue that other structural reforms in the political system might create a political environment where the incentives for legislators to engage in partisan gerrymandering are lessened. This is one way to read the argument put forth by Richard Pildes that the fragmentation of power within the political parties has been the crucial driver of heightened partisan competition in recent years—more so, he argues, than polarization dynamics.
One might also reach a similar conclusion by focusing on regime dynamics in contemporary American politics as well. The current era of American politics has been marked by a persistent state of close competition and divided government since at least 1968. Again, a consequence of this is that elections matter more because there is a plausible prospect of a shift in political power in each election. But imagine an alternative universe where there was a significant “realignment” among the political parties and one of the two parties was reestablished as a dominant majority—something akin to the dominance of the Democratic Party in Congress from the New Deal to 1980. In such a context, it is possible to imagine that legislative impulses towards partisan competition might be lessened, and that the incentives for legislators to engage in partisan gerrymandering might accordingly be less significant.
If strengthened political party leadership reemerges, or another critical realignment occurred that reduced legislative incentives to partisan gerrymander, this would be a welcome development for those who feel procedural integrity is important. However, given the more dramatic nature of the structural changes contemplated in these arguments, it is hard to think of these alternative routes to reform as considerably more realistic than addressing partisan gerrymandering more directly. Furthermore, I share the concerns that there is an independent harm for democratic legitimacy when partisan gerrymandering practices are validated in even a de facto way when courts and legislative entities do not condemn them. Justice Kagan certainly gave voice to this concern in the opening lines of her dissent in Rucho, quoted at the start of this Article.
Even if certain structural conditions were to dramatically shift and disincentivize the practice of partisan gerrymandering, one might worry that even in this more optimistic scenario, we will not necessarily see a substantive entrenchment of procedural integrity either. Stated otherwise, we risk making the norm of procedural integrity—and perhaps other elements of democratic legitimacy—norms that are worthy of being respected and followed only whenever they happened to align with instrumental, political calculation.
This, then, is the dilemma posed by the present political context: procedural integrity is crucial to supporting democratic legitimacy, but the norm is under attack by the practice of partisan gerrymandering, and it has no obvious institutional sources that might strengthen and entrench the norm. Indeed, to the extent any institutional entities might try to promote procedural integrity by reforming the practice of electoral line drawing, they risk weakening their cause by being identified with the same opportunism that drives partisan gerrymandering.
So, how might the political system go about promoting a norm that has shaky support within the broader political system? Perhaps ironically, I am inclined to think that the course charted out by the Supreme Court over the past several decades on partisan gerrymandering has much to commend it. Though there are some clear differences between them, a common theme runs through the Court’s jurisprudence from Bandemer, to Kennedy’s concurrence in Vieth, to Kagan’s dissent in Rucho. In each, there is a clear statement that partisan gerrymandering violates basic norms of democratic governance. Yet each is also ambiguous to varying degrees—with Kennedy by far the most cautious—as to how far the Court should go about regulating partisan gerrymandering.
For example, this was Kennedy’s crucial statement outlining his position in Vieth:
There are . . . weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run. In my view, however, the arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander. It is not in our tradition to foreclose the judicial process from the attempt to define standards and remedies where it is alleged that a constitutional right is burdened or denied.
In a similar vein, although Justice Kagan had no similar hesitancy in being willing to articulate a standard to adjudicate partisan gerrymandering claims, she also stated a willingness, as “a first-cut answer,” to tie judicial intervention to the worst excesses of partisan gerrymandering in her Rucho dissent.
There is an identifiable judicial sensibility here of seeking to take cautious, partial, first steps forward on this question of how to regulate partisan gerrymandering. There is clarity about the normative defects of partisan gerrymandering, but the exact contours of judicial correction are left with some ambiguity and with a nod to future development. For those inclined toward exceedingly clear guidelines and standards for judicial intervention, this is bound to be an unsatisfying approach—regardless of whether one would favor more aggressive or more modest judicial intervention in this context. But given the present challenges posed by partisan gerrymandering for the norm of procedural integrity and democratic legitimacy, this may very well be the best that our political system can do at present. In this way, the norm of procedural integrity may be strengthened without undue harm done to the Court’s own legitimacy by picking a side in partisan conflicts. When conditions change to reduce the severity of polarization or the intensity of political competition, changed political circumstances working with clearly articulated judicial commitments to correct partisan gerrymandering may be the best path forward for re-establishing procedural integrity and shoring up the broader legitimacy of the democratic system. For judicial actors to unambiguously state that certain democratic norms are nonnegotiable and that partisan gerrymandering is deeply problematic, such a declarative statement of principle—even if separated from an aggressive program of judicial intervention—may carry substantial benefits and keep the procedural integrity norm alive and well until the rest of our political system might be able to catch up to it.
In this Article, I have set forth a critique of partisan gerrymandering based in democratic theory and focused on the concept of procedural integrity. As I have argued, procedural integrity is a substructural principle of democratic governance. At the present moment in time, the presence or absence of procedural integrity in our collective decision-making processes carries significant consequences for enhancing or weakening the legitimacy of American democracy. Partisan gerrymandering constitutes a basic violation of procedural integrity, and one of the ambitions of this Article has been to clarify the nature of this violation and to offer some thoughts on how the judiciary may move forward given present political circumstances.
More generally, my focus in fleshing out a context-sensitive claim grounded in democratic theory may hopefully point toward other similarly oriented normative claims. For those sympathetic to living constitutionalism, a recognition of changing social conditions and evolving social meanings requires that interpreters reconceptualize or “translate” enduring, individual rights into something new or evolved. In a similar manner, attentiveness to the changing nature of democratic legitimacy—as something dependent upon ever-changing political circumstances—should also prompt observers to recognize the virtues of reconceptualizing those rights and constitutional structures that are inextricably intertwined with democratic governance. This type of analysis has been the basis of the critique of partisan gerrymandering that I have put forth here.
Rucho v. Common Cause, 139 S. Ct. 2484, 2509 (2019) (Kagan, J., dissenting).
Given the structure of my argument, and as further developed in Part III, my primary concern with respect to partisan gerrymandering lies in its deployment in the context of federal congressional elections. Strands of my argument might also be applied to the state legislative context as well, though given the context-sensitive nature of my claims, that argument would need to be further developed beyond what I provide here. For discussion on some crucial distinctions between the federal congressional and state legislative contexts with respect to partisan gerrymandering, see Adam B. Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 Sup. Ct. Rev. 409, 410–11, 421–23.
Rucho, 139 S. Ct. at 2506–07.
See infra Part III.
U.S. Const. amend. XIV, § 1.
U.S. Const. amend. I.
U.S. Const. amend. V, § 1; id. amend. XIV, § 1.
See infra Sections IV.A–B.
My concern with popular acceptance of democratic outcomes relates to the concept of “sociological legitimacy.” For discussion of that concept in the context of constitutional legitimacy, see Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1789, 1790–92, 1805–06, 1825, 1848 (2005).
For a related argument on the relationship between partisan gerrymandering and democratic legitimacy, see Guy-Uriel E. Charles, Democracy and Distortion, 92 Cornell L. Rev. 601, 607–10 (2007). I discuss Charles’s argument in greater detail below at infra note 35.
By “intention,” I track Fallon’s use of the term in referring to the proximate aim sought by a given action or, in this case, a given rule change. Used in this sense, “intention” would be distinguished from “motivations.” To quote Fallon,
[S]ome writers define a person’s intentions in terms of the proximate aims that she seeks to achieve in taking an action. For example, if a legislator votes to authorize a Ten Commandments display in the state capitol, we might say that she acts with the intention (or aim) of promoting religion. So speaking, we might distinguish her “motivations” for doing so as involving the values, beliefs, or dispositions that made the aim of promoting religion attractive to her. For example, we might say that her motivation was to please God—or, alternatively, that it was to win the support of religiously devout voters.
Richard H. Fallon, Jr., Constitutionally Forbidden Legislative Intent, 130 Harv. L. Rev. 523, 535 (2016); see also id. at 534–36. However, perhaps somewhat differently from Fallon, I use the terms “intention” and “purpose” interchangeably below. Id. at 536.
See infra Section II.B.
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 137–38 (1980).
As he states, “I argue that courts should never invalidate legislation solely because of the subjective intentions of the legislators who voted for it. Legislative intentions should matter far less to constitutional analysis than the language and effects of challenged legislation.” Fallon, supra note 11, at 558. For a similar argument, though focused on election law specifically, see Richard L. Hasen, Bad Legislative Intent, 2006 Wis. L. Rev. 843, 846, 859–61 (2006).
Fallon, supra note 14, at 530, 576–77.
Id. at 530, 582–85. First in the article Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993) and then in subsequent articles solely authored and coauthored, Richard Pildes has written extensively on expressive harms—especially in the context of race and electoral redistricting. See Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1527–29 (2000); Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Stud. 725, 733, 755, 757 (1998).
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 15 (1959); see also id. at 12, 15–16, 19.
On the significance of reasoned elaboration within legal process theory, see Neil Duxbury, Patterns of American Jurisprudence 265, 274 (1995); Laura Kalman, The Strange Career of Legal Liberalism 41–42 (1996).
Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 143 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); see also id. at 143–48.
For discussion of Wechsler’s argument and how neutral principles aspired to shore up the integrity of the legal process by constraining judicial discretion, see Duxbury, supra note 18, at 265, 274; Kalman, supra note 18, at 41–42. Various aspects of Wechsler’s argument, of course, prompted extensive critical response. For an overview of these criticisms, see Duxbury, supra note 18, at 271–74, 277–78. However, the component of Wechsler’s argument that I am advancing here—about the normative attractiveness of neutrality and generality in at least some judicial and democratic contexts—seems uncontroversial. On this more limited point, Wechsler seemed to think the same. See Norman Silber & Geoffrey Miller, Toward “Neutral Principles” in the Law: Selections from the Oral History of Herbert Wechsler, 93 Colum. L. Rev. 854, 925–26 (1993).
Again, the preoccupation with preserving judicial legitimacy, given the nonelected status of