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Excerpted From: Yunsieg P. Kim and Jowei Chen, Gerrymandered by Definition: The Distortion of “Traditional” Districting Criteria and a Proposal for Their Empirical Redefinition, 2021 Wisconsin Law Review 101 (428 Footnotes) (Full Document)


KimandChenWhat are “traditional” redistricting criteria? Although the question may seem to be mostly in service of scholarly curiosity, its answer has immediate practical consequences because adherence to these traditional criteria gives districting plans a prima facie impression of constitutionality and serves as a strong defense to racial gerrymandering claims. Put differently, in the context of redistricting criteria, the word “traditional” is synonymous with “legal.” Due to the redistricting set to follow the 2020 Census and the decennial reapportionment, the meaning of “traditional redistricting criteria” has rarely been more pertinent than it is now.

However, this consequential term remains surprisingly ill-defined. The Supreme Court has never explicitly stated the qualities that make a districting criterion “traditional” or given a full list of the traditional criteria themselves, stating only that “traditional” redistricting criteria “includ[e] but [are] not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests ....” This definition was apparently left open-ended deliberately to incorporate what states consider to be traditional districting rules, because “[w]here these or other [traditional criteria] are the basis for redistricting ... a State can 'defeat a claim that a district has been gerrymandered on racial lines.”’ At the same time, the Court has been reluctant to expand that list, often mentioning that a state has used a particular redistricting criterion without explicitly clarifying whether it is “traditional.”

Although flexible guidelines are more easily adapted to changing circumstances than rigid bright-line rules, that same flexibility also makes guidelines easier to abuse. Unfortunately, in redistricting, flexibility often contributes more to abuse than to good-faith adaptation. Exploiting the lack of an intelligible definition of “traditional criteria,” legislators and electoral candidates are distorting this term in service of their interests at the expense of the public's. Specifically, if the Supreme Court has ever said that a state used a particular districting rule even once and that rule happens to be expedient, interested parties claim that the Court has endorsed it as a “traditional” criterion. For example, expert witnesses retained by state legislatures have claimed that Shaw v. Hunt (Shaw II) recognizes incumbency protection as “traditional,” even though that case does nothing of the sort--it only says that North Carolina has used it as a criterion. Such reasoning is about as persuasive as a pharmaceutical company claiming that heroin should be legalized as a flu treatment because it once sold heroin legally for that purpose in the past.

To curb such abuses of law and logic, this Article advances a definition of “traditional” districting criteria that adheres to a commonly understood meaning of tradition: widely accepted as standard practice. We propose that a districting criterion be considered traditional only if a majority of states require or allow it in constitutions, statutes, or legislative guidelines and if fewer than a quarter prohibit it. We also submit that a criterion considered to be traditional in either state or congressional districting should be treated as such in both. According to our database of state redistricting laws and our definition of “traditional”--permitted by twenty-six or more states and prohibited by twelve or fewer--equal population, compactness, contiguity, and preserving city and county boundaries are traditional criteria. Partisan advantage, incumbent protection, preserving past district cores, and preserving communities of interest, among others, are not traditional.

We propose our definition of traditional districting criteria--which we call the empirical definition--because it would distinguish traditional criteria from nontraditional criteria in an objective fashion. An objective definition is necessary because its absence in the status quo is inviting conflicted parties to claim that any expedient rule that a state has ever used is traditional. Even if it is assumed that judges--many of whom are elected to be unaffected by partisan bias, our definition is still needed to enhance the legitimacy of court-ordered redistricting plans. Even when courts rule impartially on whether a criterion is traditional, the fact that judges drawing up redistricting plans in the status quo must effectively create their own definitions of “traditional criteria” risks inviting claims that judicial activism is hijacking the democratic process. Our empirical definition would enhance the substantive legitimacy of redistricting by reducing the ability of conflicted parties to manipulate it, as well as its political legitimacy by forcing court rulings to reflect precisely what most states consider to be “traditional” criteria.

Of course, the majority's collective decisions may not always be correct or just; theoretically, the legislatures of twenty-six states could conspire to recognize as traditional those criteria that advance political expediency at the expense of the public interest. We maintain that voters care enough about gerrymandering that a conspiracy among states to circumvent the empirical definition, if it materialized, is unlikely to succeed. For example, the recent successful ballot initiatives that transferred districting authority from legislators to independent redistricting commissions were caused by voters' perception that politicians “choose their own districts” and their frustration “with dysfunctional governance and unresponsive legislators ....” Nevertheless, recognizing the possibility of this worst-case scenario, the empirical definition requires traditional districting criteria to be endorsed by a majority of states and prohibited by fewer than a quarter. A quarter, the same amount needed to defeat proposed amendments to the U.S. Constitution, was chosen to meaningfully check a majority's excesses while also minimizing frivolous obstruction.

This Article proceeds as follows. Part I elaborates on how conflicted parties and even the Supreme Court abuse the term “traditional” redistricting criteria, while scholars fail to provide satisfactory alternatives to the status quo. Part II presents the legal and political justifications for our empirical definition of traditional districting criteria, as well as ways for courts to employ it. In the status quo, if state law is silent on whether a redistricting criterion is traditional, the decision falls to the discretion of the presiding court. For example, a court might mandate equal population in congressional districting because state law requires it for state legislative districting, while another court might let the state legislature advantage a particular party in districting because state law does not prohibit it. However, if courts uniformly applied the empirical definition to determine whether a criterion is “traditional” when their own state law fails to give guidance, voters would become less beholden to the whims of their courts or their resident states for protection from gerrymandering.

Whereas Part II justifies the empirical definition with the practical gains it would present, Part III validates it using constitutional theory. This theoretical persuasion is necessary because judicial acceptance is vital to the empirical definition's success and because judges “are more likely to be interested in the logic and symmetry of the law than in the objects and policies to be attained through the law.” Some scholars are also wary of what they see as the excessive quantification of districting law. The argument goes that some quantitative metrics would determine the legality of a districting plan according to whether it has certain properties they deem relevant, instead of merely helping courts identify whether a clearly defined illegal element exists. For a simplified comparison, imagine that an automated system identifies “speeding” according to a car's color, not its speed. Relying on such metrics would turn judges into legislators because they would be imposing a new definition of “speeding” on society. Overreliance on quantitative metrics may also incentivize litigants to produce increasingly abstruse ones, which could mislead judges.

Part III.A argues that the empirical definition would not turn judges into legislators. Instead of imposing newfangled policy on a reluctant society, the empirical definition defines a central element of districting law according to both the public will and the Supreme Court's requirement of traditionality. To return to the speeding analogy, the empirical definition is akin to asking courts to define speeding as going over, say, 65 miles per hour because that is how most states define it and because the Supreme Court has so far failed to define speeding in an objectively discernible way, even as it claims to want a traditional definition. Indeed, judicial legislation is better represented by the status quo, in which each court applies its own definition of traditional criteria to districting disputes on a case-by-case basis, an application often influenced by conflicted, partisan interests. Moreover, the empirical definition's simple numerical formula merely represents a belief that a majority of the states are more likely to define traditional criteria in the public interest than litigants hidden from societal scrutiny, pushing redistricting plans meant to get themselves reelected in perpetuity.

Part III.B then shows that the empirical definition advances a constitutional principle that courts purport to, but often do not, follow: that redistricting cannot unduly discriminate against any candidate. Although the Supreme Court ostensibly requires districting proposals to be based on “consistent and nondiscriminatory application of a legitimate state policy,” courts would, in fact, condone certain discriminatory criteria if applied consistently to all eligible districts in a state. For example, Larios v. Cox held that a districting map advantaging Democratic incumbents may have been upheld had it similarly protected Republican incumbents, and the Supreme Court recently commented that incumbent protection is traditional, albeit without good reason. We submit that incumbent protection, by definition, discriminates by advantaging certain candidates for this election on the basis of the votes they won in the last one--whether that cartel includes one or both sides of the aisle is irrelevant. Moreover, the courts' consistent application approach would incorrectly deem certain widely accepted criteria, such as contiguity, to be nontraditional.

Part III relies on two types of corroboration. We first show that abusive districting criteria such as incumbent and partisan advantage do, in fact, lack majority state support, using our dataset indicating if a state requires, allows, prohibits, or is silent (as far as is known) on eleven criteria. Although the full dataset is posted online instead of as an appendix due to its size (28 columns by 103 rows), we present summary statistics as to how many states took what position as of April 2020 on each districting criterion. Our data set improves on existing data sets, which tend to be inaccurate, outdated, or not specific as to which districting criteria a state requires. We then present our interpretation of various districting criteria and how they are used in reality to show that the districting criteria we deem abusive not only lack the support of a majority of the states but would also make elections inherently inequitable. For example, we argue that preserving communities of interest is likely to be abused to justify partisan or incumbent advantage after the fact because the term communities of interest is so open-ended as to be effectively meaningless.

Before proceeding, we emphasize that this Article uses “abusive districting practices” as a term of art that refers specifically to two things. First, abusive districting criteria are those that have falsely or baselessly been presented to courts as traditional. Second, abusive districting criteria are practices privately expedient to certain groups of voters or candidates at the expense of the public interest. Hence, not all nontraditional criteria are abusive. For example, preserving precinct lines is not traditional under the empirical definition because it lacks support among the states, but it is not abusive because, as far as we know, it has not been challenged in scholarship or courts as meaningfully distorting elections or districting. In contrast, incumbent protection and partisan advantage are nontraditional and abusive because they lack requisite support and would unduly favor certain interests, as discussed below. Plainly, this definition of “abusive” excludes constitutional districting practices that protect disadvantaged voting blocs. Such measures do benefit certain groups, such as racial minorities, but that benefit is not against the public interest.

[. . .]

Devising judicial solutions to abusive districting practices has long been considered an intractable problem. As discussed in Part I, scholars apparently resigned themselves to the notion that the term “traditional redisricting criteria” was too amorphous and subjective to be intelligibly defined. As for judges tasked with solving that problem, there existed a plausible justification to pawn that burden off to, ironically, those who bear much of the responsibility for causing that problem in the first place: ending gerrymandering was a job for partisans (or their disgruntled constituents) because districting was a political problem, not a legal one. This excuse became law with the help of those with a vested interest in eliminating judicial supervision from redistricting, leaving only those conflicted interests to write the list of traditional districting criteria to their liking.

However, the empirical definition would make “traditional redistricting criteria” tangible and objective by defining that term as those criteria that a majority of states use. By making the courts merely a vessel and enforcer of what states already endorse, the empirical definition would make gerrymandering a legal problem, not a political one: enforcing traditional redistricting criteria would no longer constitute judges subverting democracy by imposing their subjective notions of proper districting practices. We also showed that the risk of state legislatures circumventing the empirical definition is minimal and that the empirical definition would curb undesirable districting practices if implemented. For example, advantaging a certain party and protecting incumbents are not “traditional” criteria because fourteen to seventeen states prohibit those practices, but only one to ten states require or allow them. In contrast, the status quo legitimizes too brazen a conflict of interest for any sober mind to condone. Surely, someone is drunk at the wheel when the people writing the laws are simultaneously profiting off of them.

Although we believe that the empirical definition would cure the defects in the status quo definition of traditional districting criteria, every reform risks creating unintended consequences of its own. This prompts a question: if redistricting is done according to traditional criteria as we define them through the empirical definition, would that reduce partisan districting? We show evidence in the affirmative in the next article in this research agenda by simulating election results in districts drawn pursuant to the empirical definition. In doing so, we aim to dispel the illusion that just because elections will likely be partisan, election laws must also.

Judicial Law Clerk, United States Court of Appeals for the Ninth Circuit (2021-22); J.D., Yale Law School; Ph.D. in Political Science, University of Michigan.

Associate Professor of Political Science, University of Michigan; Ph.D. in Political Science, Stanford University.

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