On Tuesday, Justice Sotomayor asked a “simple but devastatingly effective” question of Erin Murphy, one of the attorneys arguing in favor of Wisconsin’s gerrymandered map: “Could you tell me what the value is to democracy from political gerrymandering?” At first glance, Justice Sotomayor’s question seems important because it transcends “the technicalities of constitutional doctrine” and raises “first principles,” making the presumed answer easy: “Political gerrymandering has no value in a democracy.”
Murphy’s answer—claiming that gerrymandering “produces values in terms of accountability”—seemed incomprehensible to observers. “I really don’t understand . . . what that means,” was the Justice’s own apt response. The type of gerrymander enacted in Wisconsin is specifically designed to defeat accountability, not foster it. What was Ms. Murphy—a stellar advocate—talking about?
The answer is more revealing than it might seem because Justice Sotomayor’s question is more complex than it might seem. Asking about the “value” of gerrymandering doesn’t just implicate democratic “first principles”—it strikes at the heart of the constitutional doctrine as well.
As Justice Breyer observed in his Vieth dissent (invoked by Ms. Murphy), political considerations can “play an important, and proper, role in the drawing of district boundaries.” In Vieth, Breyer points to an example of a neutral court-appointed boundary drawer accidentally moving an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp’s former district. This may be a “micro” political consideration, but any person (or organization) that has spent years working with his or her representative on a specific neighborhood project will recognize the democratic value in keeping certain areas tied to certain seats, whether to support and maintain the politician who is doing good work or to mobilize and defeat the politician who has stymied that work. This accountability and responsiveness to voters’ interests is a feature of democracy, not a bug.
At a “macro” level, the Court has also previously allowed mapmakers to allocate seats proportionally based on statewide party voting strength, and presumably would allow a legislature to draw “competitive” seats, if it so chose. Because both of these interests require mapmakers to draw districts based on voters’ political preferences and beliefs, however, both of these forms of redistricting are also—in the Court’s own confusing doctrinal parlance—“political gerrymandering.”
In other words, “political gerrymandering” (as the Court has curiously defined it) can serve important democratic values such as accountability, competitiveness, proportionality, etc. Murphy’s unconvincing attempt to tie the Wisconsin map to these examples and precedents, however, reveals a key doctrinal distinction: political gerrymandering for partisan advantage does not have any such constitutional legitimacy. That is why divvying up congressional seats in purple North Carolina between 6 Ds / 6 Rs in 2001 can be constitutional, even if divvying up the same state between 3 Ds / 10 Rs in 2016 is not.
Justice Kennedy makes a similar point in LULAC when discussing the difference between legitimate incumbency considerations and illegitimate incumbency considerations (leaving open the question of whether such a distinction might support a claim outside the racial gerrymandering context):
“The Court has noted that incumbency protection can be a legitimate factor in districting, but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents. If the justification for incumbency protection is to keep the constituency intact so the officeholder is accountable for promises made or broken, then the protection seems to accord with concern for the voters. If, on the other hand, incumbency protection means excluding some voters from the district simply because they are likely to vote against the officeholder, the change is to benefit the officeholder, not the voters. By purposely redrawing lines around those who opposed [the incumbent], the state legislature took the latter course. This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters.”
Justice Sotomayor’s question isn’t a “gotcha” intended to corner an advocate—it’s a graceful synthesis of the Supreme Court’s confusing case law. If a map advances democratic values, or legislators redistrict with the purpose of advancing democratic values, then there is little justification for courts to get involved, as the Justices recognized in Gaffney v. Cummings: “[The] judicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.” When legislators act counter to democratic values and attempt to insulate themselves from their own voters, however, they cannot hide behind the mere fact that “politics” play a (well-warranted) role in the redistricting process—a distinction the Justices also recognized in Gaffney: “[A plan] may be vulnerable [to challenge], if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”
Sotomayor’s question lays bare the simplicity of this constitutional issue in a way “the intelligent man of the street” is sure to appreciate. Far from diminishing the Court’s credibility, judicial intervention along these lines would enhance the reputation of the Court, just as the one-person one-vote doctrine did decades ago. And just as this generation may now wonder how an obvious doctrine like one-person one-vote took so long to arrive, “[s]o too will it be when this generation explains to their children that the government used to be able to discriminate between citizens based on how the government predicted they would vote, allowing the state to favor preordained candidates and to suppress the influence of those who disagreed with the state-sanctioned choices.”
What is the value to democracy from political gerrymandering for partisan advantage?
The intuitive answer is the right one: None.
Modern Democracy 
Like you, Justice Sotomayor, and the unnamed observers you mention, I don’t understand Murphy’s answer insofar as it relies on accountability. Breyer did talk about accountability in Vieth, but only in that he claimed that single-member districts promote accountability by, as he delicately puts it, “perhaps [perhaps!] freezing out smaller parties,” thereby making it clear which party’s running the government, or at least any given house in a bicameral legislature. I don’t see how partisan gerrymanders serve this clarifying function; gerrymandering our electoral system to freeze out smaller parties does that admirably without locking in any single party’s dominance over the other. (Though query why Breyer or you think that’s okay, but gerrymandering for monoplistic purposes instead of duopolistic ones isn’t.) Of course, I guess one could cynically say that partisan gerrymandering makes it *really* clear for accountability purposes that Republicans control Wisconsin, but I think it quite suffices for accountability that some party or another will have a clear majority at any given time without its always being the same party. Also, I’m not exactly sure how an entrenched party is held accountable absent a landslide.
However, I do think the invocation of Breyer’s dissent is apt, because he does say some things about the merits of single-member districting that aren’t so easily cabined to single-member districting sans gerrymandering. Particularly, he claims that districts that are too “random in respect to politics” (a fascinating way of describing the much-vaunted competitive districts you aptly refer to above in scare quotes) will tend to exaggerate “tiny electoral changes” in “highly undemocratic” ways and produce the constant turnover that he claims earlier is one of the vices of proportional representation. Hence, he seems to be attracted to a system of proportionately allocated, mostly safe seats (a little along the lines of Kang in “Race and Democratic Contestation,” which rightly rejects, in my view, the idealization of competitiveness), like the one in Gaffney; leaving elections to “random” chance, he fears, would thwart stability.
Yet, when he turns to what he calls “entrenchment,” he writes that “[t]he need for legislative stability cannot justify entrenchment, for stability is compatible with a system in which the loss of majority support implies a loss of power.” Now, I don’t get that at all. How can a system be called stable if the majority party in a tight state loses power every time it loses majority support? By definition, that’s the opposite of stability. Whether or not non-gerrymandered maps in tight states flip from one unanimity to the other, as he fancifully suggests a hyper-competitive map could (fanciful because I don’t know how you could draw a whole map of hyper-competitive districts without a truly crazy competitive-mander), they will turn over a lot.
For example, in the national House popular vote, Republicans beat Democrats 49/48 in 2016, had a 51% majority in 2014, lost 47.6%/48.8% in 2012, had a solid 52/45% win in 2010, lost 53/42 in 2008, and so on (as per Wikipedia, which probably isn’t the most accurate source of these numbers). Partisan gerrymandering, plus “natural” Democratic inefficiency, smooths all that out into fairly decisive Republican control from 2010 onward. Absent aggressive proportionate-manders of the kind Breyer seems to envision–which would still be highly sensitive to changes in statewide or nationwide voting trends, or dumb luck, since they’re very tight maps that would turn on a swing seat or two–I don’t know how one escapes regular turnover or razor-thin majorities without gerrymandering in our polarized, anti-incumbent world. And I am also skeptical of the democratic virtues of aggressive proportionate-mandering. Is the idea that every ten years, a state sticks its finger in the wind, sees what partisan balance looks like at that moment, and draws seats that lock it in for the next ten years? That’s just gerrymandering with a human face, as they used to say in Czechoslovakia. And to the extent courts box states into doing things this way to avoid intra-district hyper-competitive chaos and placate incumbents, I have a big problem.
If one agrees with Breyer that stability is a democratic value, there’s your value of gerrymandering. One can’t yearn, as many students of Congress do, for the stable non-partisan days when one party controlled the House for forty years on the one hand, and propose an era of biennial turnover in the House and every close state’s state legislature on the other. Decennial turnover seems a little easier to stomach, and while of course people fear that gerrymanders will interminably replicate themselves, I don’t exactly struggle to imagine a world in which Democrats do very well in 2018 and 2020, well enough to legislate a decade of dominance of their own. And even if Democrats can’t retake state legislatures, they can win gubernatorial seats and obtain veto power. I don’t know *anything* about whether minority-party governors are ever successfully extorted to sign gerrymanders that favor their opponents into law, but it can’t be easy.
Another virtue of gerrymandering is avoiding divided government, particularly at the state level. Gerrymanders are signed into law by governors who hope to generate same-party legislatures. As I’m sure you’ve noticed, divided government doesn’t work very well these days for anyone; our parties have become too coherent and polarized for it to work. Is it entirely illegitimate to prefer (A) single-party government, whether Democratic in Maryland or Republican in Wisconsin, with some accountability and responsiveness in the form of non-gerrymandered gubernatorial elections (and presidential and senatorial elections on the federal level) that can influence the next gerrymander, to (B) a system of more accountable, responsive, and democratic, but frequently divided and unstable government? My answer would be no. In fact, I’m not at all sure that it would be illegitimate for states to adopt a system of decennial legislative elections to address these problems in perhaps a more honest way, though even that would only address stability, not divided government. Under such a system you could be trapped in divided government for a decade. Under gerrymandering, you’re guaranteed single-party government for at least 2 or 4 years, and keep it just so long as voters continue to want it. If they don’t, they can elect a new governor and ultimately unwind the gerrymander they’ve got.
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