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17 Election L.J. 1 (2018)

handle is hein.journals/enlwjr17 and id is 1 raw text is: Original Articles ELECTION LAW JOURNAL Volume 17, Number 1, 2018 © Mary Ann Liebert, Inc. DOI: 10.1089/elj.2016.0392 Considering the Prospects for Establishing a Packing Gerrymandering Standard Robin E. Best, Shawn J. Donahue, Jonathan Krasno, Daniel B. Magleby, and Michael D. McDonald ABSTRACT Courts have found it difficult to evaluate whether redistricting authorities have engaged in constitutionally impermissible partisan gerrymandering. The knotty problem is that no proposed standard has found accep- tance as a convincing means for identifying whether a districting plan is a partisan gerrymander with know- able unconstitutional effects. We review five proposed standards for curbing gerrymandering. We take as our perspective how easily manageable and effective each would be to apply at the time a redistricting au- thority decides where to draw the lines or, post hoc, when a court is asked to decide whether an unconsti- tutional gerrymander has been enacted. We conclude that, among the five proposals, an equal vote weight standard offers the best prospects for identifying the form of unconstitutional gerrymanders that all but en- sure one party is relegated to perpetual minority status. Keywords: gerrymander, vote dilution, efficiency gap, partisan symmetry P ARTISAN GERRYMANDERING HAS BECOME such a dark art that retired Justice John Paul Stevens proposed a constitutional amendment to curb it (Stevens 2014). After the 2000 round of redistrict- ing, David Mayhew pointed to five cases of deft gerrymandering-Florida, Michigan, Ohio, Penn- sylvania, and Texas (Mayhew 2011, 24; see also Toobin 2003), to which three others could have been added-California, Illinois, and South Caro- lina (McDonald and Best 2015, 321). After the 2012 round of redistricting, credible gerrymander- ing allegations have been leveled at no fewer than ten states: Florida, Georgia, Illinois, Louisiana, Maryland, North Carolina, Ohio, Pennsylvania, Robin E. Best is an associate professor of Political Science at Binghamton University in Binghamton, New York. Shawn J. Donahue is a JD and PhD candidate in Political Science at Binghamton University. Jonathan Krasno is an associate profes- sor of Political Science at Binghamton University. Daniel B. Magleby is an assistant professor of Political Science at Bing- hamton University. Michael D. McDonald is a professor of Political Science at Binghamton University. Tennessee, and Texas (Fang 2014). One could likely add Michigan and Wisconsin without any stretch of credibility. In all these cases the party in power is suspected of designing districts to perpetuate their majority control of a congressional delegation or state legislative chamber almost regardless of what a majority of voters would decide were they not pre- organized in clusters favoring the party in power. The artistry, of this sordid sort, is accomplished through so-called packing gerrymanders. Very many partisans of one stripe are crammed into a small num- ber of districts while partisans of the other stripe are given strong but not overwhelming majorities in the larger number of remaining districts. Justice Stevens' call for a constitutional amend- ment comes in the face of two frustrations. Only a few states have shown a willingness to police par- tisan gerrymandering on their own, and courts have been unable to craft a diagnostic standard that identifies whether a districting plan produces consti- tutional harm. Needless to say, the wait for a consti- tutional amendment requires as much patience as the wait for states to adopt rules themselves. Instead 1

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