I commend Walter Olson’s lucid framing of the gerrymandering dilemma. The libertarian perspective aptly focuses on improving electoral markets. He illustrates well how prevailing redistricting practices can stifle robust competition, as well as new voices and political accountability. Olson’s claims are rooted in a principled and reformist tradition of classical liberals who worked to banish pocket boroughs in Great Britain. Here I point up a few critiques of his position, noting that first principles and neutral procedures do not guarantee fairness, depending on how one defines it. I also argue that a bargaining framework might be better for pursuing fairness rather than trying to take politics out of the line-drawing process.
Assessing the Problem
Olson’s main concern is how gerrymandering entrenches incumbents. By incumbents he means individual officeholders as well as the parties in power. I endorse his broader point even though he overstates his case. Gerrymandering is not necessarily the most significant factor aiding incumbents. Regardless of line-drawing, officeholder advantages emerge from name recognition, cultivating a personal vote, and the ability to raise campaign money easily.
To be sure, incumbents try to safeguard their seat through redistricting. However, their self-serving behavior may bump against the collective interests of the party seeking to maximize seats in the legislatures. Incumbents prefer a bipartisan gerrymander that protects incumbents in both parties by increasing the size of their winning coalitions in their respective districts. Party leaders, however, prefer a partisan gerrymander that entails spreading out the party’s voters across more districts while wasting the votes of the opposition party by packing them excessively into a district, or else dividing a cluster of opposition voters (“cracking”) so they cannot win majorities. The partisan gerrymander favors the party in power but it is a strategy that puts some incumbents at greater risk. Conceptually, Olson appears to conflate the incumbent and partisan gerrymander In Gill v. Whitford, the case currently before the Supreme Court, the plaintiffs focus on the partisan gerrymander.
Competition Is Not the Only Goal
It is by no means clear that maximizing competition should come at the expense of other important values in a political system. Maps that maximize competition do not necessarily ensure fair representation of various interests, particularly for minorities. Nor is government likely to be stable or policymakers knowledgeable if politicians churn through the legislature from coin-flip elections. Additionally, legislators who live with intense fear of losing the next election may find it difficult to compromise on matters of interest to the broader polity. In short, there are trade-offs left unsaid by a singular focus on electoral competition.
To push the argument further, I want to take a stand for rent-seeking. Self-serving behavior in politics is not all bad if some structural accountability exists to constrain excess, and if previously marginalized voters stand to gain from it. Boss Tweed may have been corrupt, but a by-product of his corruption was that Tammany mobilized and empowered the much ostracized Irish-Americans. Less dramatically, gerrymandered rent-seeking gives incumbents the opportunity to build experience and influence that often benefits constituents. It also encourages an institutional loyalty among these incumbents and legislative power that bolsters the Constitution.
Let me be clear. I am not advocating rent-seeking but suggesting it might be tolerated to the degree it lubricates the capacity to govern in a diverse polity. The problem, of course, is when legislators lack any accountability because there is no latent threat of a challenge.
The Problem of Neutral Procedures
I want to address Olson’s focus on neutral procedures to guide the redistricting process. Using criteria such as compactness, congruence, and contiguity to guide line-drawing is invaluable. Such rules provide a foundation for consistency and legitimacy, while constraining the grossest of gerrymanders. But it must be acknowledged that any sort of principle could lead to unfair outcomes and is prone to manipulation.
Take the “blinding” approach. It has a powerful logic because it ignores political factors like partisan registration of voters or the home address of incumbents. But ignoring political factors – even if possible – may undermine Olson’s chief goal of increasing political competition. The natural spatial concentrations of partisan voters would make it harder to generate competitive districts without knowledge of voter loyalties. Moreover, given that racialized voting exists, blinding is less likely to produce districts that give blacks greater opportunities to choose preferred members of the legislature. Blinding would certainly make it difficult to meet the requirements of the Voting Rights Act. Finally, ignoring incumbency may undermine representation of voters who believe their current legislator knows and serves them well.
I agree with Olson that it is important to leave the courts out of these deliberations over matters of fairness and line-drawing as much as possible. Judges have their own biases. More critically, they may impose inflexible principles with long-term consequences that would be difficult to adjust down the road. Since there is no consensus in the polity about what constitutes “fair” we should avoid having the courts lock us into something before the democratic process can deliver on what might be an emerging consensus. This concerns me about the upcoming decision in Gill v. Whitford where the court might rule on whether partisan redistricting is justiciable.
If not the courts, who should decide what is fair? Olson raises the possibility of citizen panels. I am not opposed to them, in principle, but I think he underplays their problematic nature. Such panels tend to follow the frameworks set out by elites who manage these bodies. And citizen panels, like juries, are just as prone to politics, particularly when stakes are high. To whom are they accountable? And how much will they be pressured by interest groups or rely on experts who manage the technical tasks of line-drawing requirements?
Better to Bargain
I have less faith in randomly selected individuals with weak ties to constituencies than politicians and interest groups who know how to bargain for themselves and those they represent. Rather than take politics out of it, better to channel it into a productive bargaining process. Political scientist Bruce Cain of Stanford University calls this a “pluralist” approach that emphasizes bargaining over neutral procedures. The aim is to ensure a place at the table for as many groups as possible, knowing the outcome will always be imperfect and that the logic in drawing maps may be inconsistent in any given cycle. The more important point is to balance interests in a domain that is highly complex and where notions of fairness are not settled. In these circumstances, muddling through makes sense.
The challenge of course is to create a legitimate bargaining process, and one that does not always end up in the courts. Cain points to the New Jersey Redistricting Commission, which uses a neutral mediator who facilitates the bargaining process. Another possibility is to have parties and interest groups commit to a binding arbitration process if they want to participate. Thinking outside the box, I could envision a political process in which the national political parties jointly draft a Memorandum of Understanding, with input from state parties, that lays out criteria. Both parties know what it is like to be on the losing side of a partisan gerrymander, which would temper their enthusiasm for publicly supporting the most egregious rent-seeking strategies. The MOU would not be legally binding but establishes a benchmark that the public and experts can hold them accountable for.
In the end, no matter how we slice it, any design introduces bias against a different set of voters. In cutting the cake, one’s notion of fairness depends on where we sit. By all means, let us look to criteria that improve the electoral market. But claims to take politics out of the process should be viewed with skepticism.