Gerrymandering, of course, is the quintessential anticompetitive tactic. Drawing on the theory of political competition, Issacharoff finds problematic even a legislative map that is mutually agreed upon by both parties if that map gives the parties a distinct electoral advantage in their respective districts. This, he argues, causes voters harm based on the “constriction of the competitive process by which voters can express choice.”36 Issacharoff analogizes the collusive behavior of these parties to companies, say Coke and Pepsi, that agree to sell their products in different geographical regions to avoid competing with one another. Such an agreement would be illegal on antitrust grounds. Partisan cartels, he maintains, should be treated similarly.37
What of the argument made by the realpolitik redistricting camp that voters will decide who they want drawing district boundaries? The response from the civic redistricting perspective is that such a claim is naïve in several respects. First of all, voters are faced with the relevant choice just once or twice every ten years, in elections immediately preceding the census count (i.e., election years ending in “8” and/or “0,” depending on when the officials responsible for redistricting will be elected). This decennial opportunity doesn’t really allow voters to influence the redistricting process. The exigencies of a given election year – is it a presidential or a midterm election year; is the economy strong or weak – are likely to have more impact on voters’ choices than is the fact that the redistricting cycle starts in the near future. Furthermore, even if voters wanted to cast their ballots solely on the basis of their redistricting preferences, they have no way of assessing potential maps because those can’t be drawn until the census has taken place. As a result, voters are left with only one option, namely, the crude partisan determination that their party should control the redistricting process. However, as the polls cited at the beginning of this chapter suggest, the majority of voters do not want gerrymandered districts, even if such districts are biased in their party’s favor. A victorious party that believes it has a mandate to run the redistricting process is almost certainly mistaken. Finally, in elections for legislators who will be involved in the upcoming redistricting cycle, district boundaries drawn in the previous round of redistricting will constrain voters’ choices. If those boundaries were the result of partisan gerrymandering, the choices in the current pre-redistricting elections will already have been unduly influenced.
Many of those who would like to see politics removed from the redistricting process believe that the best way to do so is to take responsibility for drawing district lines away from elected officials. Opponents argue that it is more democratic to allow elected officials, who are accountable to the electorate, to draw district maps rather than unelected redistricting commissions or judges, who don’t have to answer to anyone for their work. However, those who take the civic redistricting position believe both that elected officials are not as accountable for the maps they draw as we might think and that redistricting commissions can be designed to ensure accountability.
Imagine what would be required of voters if they were to hold accountable the elected officials drawing maps. A voter would have to be aware of the range of potential maps being considered during the redistricting process and would have to develop a preference for one of the maps (per legislative chamber). Not many voters are apt to gather this information, or even have access to it, and few would come to a judgment on it. If, by some chance, most voters did identify their preferred maps, they could only then punish those responsible for supporting district lines they object to after the maps had been drawn. Thus, even if they were to defeat the offending mapmakers at the next election, the maps those officials drew would be in use for the rest of the decade. (Some states do allow mid-decade redistricting, though in practice this rarely happens and its legality in most of those states is ambiguous at this point.38) Furthermore, the whole point of gerrymandering is to shield one party, or a group of incumbents, from serious electoral threat. How likely is it, then, that elected officials in newly gerrymandered districts are going to be vulnerable in the next election? To the extent that elected officials are invulnerable, there is no real mechanism for accountability.
We’ll discuss redistricting commissions in detail later in the book. For now, it should simply be noted that there are ways to design independent redistricting commissions so that they are accountable to the citizenry. Indeed, there are ways to design these commissions to allow the public at least some role in the process.39 Accountability can be preserved even if district lines aren’t drawn by elected officials.
Those who take the civic redistricting perspective insist that redistricting is not – and shouldn’t be – part of normal politics. It is not part of normal politics because it is not concerned with the identification of policy problems and solutions. And it should not be part of normal politics because it lays the foundation for normal politics by delineating the playing field. To the extent that politics plays a role in the redistricting process, the normal politics that occur after lines have been drawn will be skewed. That means, in part, that normal politics may not reflect the underlying preferences of the electorate.
Of course, the redistricting process is not part of constitutional politics either. To be sure, there is a debate over whether partisan gerrymandering is permitted by the Constitution (with most of those in the civic redistricting camp believing it is not, for reasons that will be discussed elsewhere in this book). Those engaged in that debate are, no doubt, involved in constitutional politics. But the redistricting process itself isn’t part of any attempt to alter our understanding of our most foundational document.40 Redistricting, then, occurs – or should occur – within a unique space in American politics. Without reaching the lofty arena of constitutional politics, it ought to nonetheless remain above normal politics.
In the end, these competing perspectives on the nature of redistricting differ not in terms of how democratic they are but in terms of the way they conceive of democracy. One takes the view that democracy is conflictual and is shot through with politics. This view of democracy is like the American humorist Finley Peter Dunne’s view of politics – it “ain’t beanbag.”41 A free society allows individuals, typically acting in groups, to pursue their own self-interest. This makes democracy a battle between groups of people over the future direction of the country. Given the stakes, we should expect those groups to play hardball and any legal means to achieve one’s ends are permitted.
The other view is that democracy is about achieving the common good. From this perspective, too much partisanship is antithetical to that purpose. While there will be vigorous debate over what the common good requires, the pursuit of one’s own conception of the common good does not justify bending the basic rules of the game. If the only constraint on political actors’ behavior is what is legally permissible, the norms of democracy – including the expectation of fair play – will erode and deep divisions will emerge in society. Under those conditions, the common good is nearly impossible to achieve.
Representation
Another important consideration in the gerrymandering debate is the nature of representation. Ultimately, a representative democracy must translate the desires of the public into policy. Exactly how that is to be done isn’t obvious.
The theoretical literature on representation is vast and it is beyond the scope of this chapter to even begin to summarize it.42 For our purposes, representation will refer to the relationship between elected officials and their constituents in which elected officials act on behalf of their constituents in matters of governing. Though representation is always descriptive to some extent (i.e., reflecting demographic characteristics like race, religion, and gender), most of the current discussion about representation in the context of redistricting concerns substantive representation, or the representation of constituents’ policy preferences and ideological perspectives.43 The assumption is that constituents’ preferences ought to be reflected in the voting records of their representatives. If, for example, most constituents in a given area prefer conservative policies, their representatives should support conservative policies.
Perhaps the