motivated actors will use any legal means to achieve their goals.15 To a non-partisan observer, this may appear ethically problematic or, at the very least, distasteful as it seems to place narrow self-interest above the common good. The partisan, however, sees their goals as synonymous with the greater good. If they are inclined to consider the ethical implications of their actions, they are likely to find those actions perfectly acceptable. They are, after all, pursuing the greater good (as conceived from their partisan perspective).
Put another way, the politics of redistricting simply reflect the underlying tensions within a given political system. As political scientists Bernard Grofman and Lisa Handley so wisely note in the introduction to their collection of comparative studies of the subject,
Redistricting can be thought of as politics in a microcosm. Redistricting struggles are fought on several levels in ways that reflect both the politics of ideas and the politics of naked power. The allocation of seats and the drawing of constituency boundaries have practical, legal, and philosophical implications. To reflect on redistricting forces us to think about the underlying bases of political representation and the related fundamental issues of democratic theory.16
It is to the philosophical implications that we now turn our attention. It is easy to condemn gerrymandering as a perversion of democratic processes. However, doing so requires a clear understanding of what it means to say a process is ‘democratic.’ As we’ll see, that is more complicated than it might first appear.
Fair Elections
It is commonplace to hear that democratic elections must be “free and fair.” But what, exactly, does that mean? Drawing on Robert Dahl’s classic work, Jørgen Elklit and Palle Svensson argue that elections must avoid coercion if they are to be free.17 Voters must be allowed to fully participate in the process, meaning their rights to assemble peaceably, speak freely, and associate expressively, among others, must be protected. Free elections, according to Elklit and Svensson, entail “the right and the opportunity to choose one thing over another.”18
Whereas free elections must avoid coercion, fair elections must ensure impartiality. Fairness “involves both regularity (the unbiased application of rules) and reasonableness (the not-too-unequal distribution of relevant resources among competitors).”19 That is, election rules must apply equally to everyone, and all political parties and candidates must have roughly equal access to resources that are necessary to be competitive. Equality, then, is a vital aspect of electoral fairness. It is the basis, for instance, of the “one person, one vote” standard.
Free elections occur almost automatically in free countries. It’s nearly impossible to imagine a country with protections for free speech or a free media somehow curtailing those freedoms in the electoral arena. Fairness, on the other hand, requires the conscious development and application of impartial electoral rules. A country may be judged to be fair, in general, according to any number of standards and still have election laws that fail to ensure electoral fairness.
We might think of electoral fairness, following the political theorist Dennis Thompson, as “electoral justice.” Electoral justice, in turn, “is a species of procedural justice. It seeks fair terms of cooperation, a set of practices that all citizens could accept as an equitable basis for making collective decisions.”20 Importantly, Thompson argues that we must judge electoral processes independently of the outcome of any given election (or set of elections). In other words, we can’t decide that an electoral rule is fair or just simply because we’re happy with the result of an election. We have to assess electoral rules and procedures in and of themselves. For Thompson, electoral rules “are just to the extent that they realize principles that could be freely adopted under conditions of equal power. In the case of electoral justice, the principles express the values of equal respect, free choice, and popular sovereignty.”21
Thompson readily acknowledges that people will interpret these principles differently. What sorts of (and how many) alternatives must voters be given if their choices are to be free? How equal must voters, or candidates, be in order to achieve an equal level of respect and what is required to ensure such equality? Must the electoral system always enable the majority to win if “the people” are to rule? Of course, the problem is not only that it isn’t obvious what kinds of procedural arrangements are necessary to achieve equality, liberty, and popular sovereignty. It’s that these principles can sometimes come into conflict with one another. The freedom of a billionaire to spend as much as they’d like supporting the party or candidate of their choice conflicts with the ability of citizens to have equal voice in the process or of candidates to have roughly equal resources for contesting an election.
It is unlikely, therefore, that debates over electoral rules and procedures – including redistricting and gerrymandering – will take the form of a democratic side versus an undemocratic side. Instead, the debate is over competing visions of democracy. Thus, the most productive way to frame the debate over gerrymandering is as follows: One side believes redistricting should be considered part of the regular legislative or, more generally, political process, while the other side believes that redistricting should be thought of as a periodic adjustment to the foundational rules of the political system. The former will necessarily be ‘political’ and partisan; the latter aims to be apolitical and non-partisan.
As it happens, most of those who embrace the political/partisan perspective, or what I’ll call the “realpolitik redistricting” argument, are political practitioners such as campaign consultants and party operatives. There are some scholars in this camp but most of its adherents work in the realm of practical politics. The other side of the debate, which we might call the “civic redistricting” argument, consists mostly of legal scholars, political scientists, and reform activists. Thus, in a given sphere – “real world” politics or academia – the debate may be lop-sided. Taken as a whole, however, there are as many advocates of one perspective as there are of the other. These advocates simply come from different worlds and are, undoubtedly, influenced by their experiences in those different domains.
The realpolitik redistricting argument rests on the assumption that no process involving political actors can be apolitical, nor can the product of such a process be neutral. Even if some such processes could be apolitical, redistricting is not likely to be one of them. As the political scientist Justin Buchler explains, given the winner-take-all nature of legislative districts in the United States, the procedures for drawing district boundaries will inevitably determine winners and losers, broadly defined, in those districts. Indeed, according to Buchler, choices about redistricting rules are “indistinguishable from the question of who should win and who should lose.”22 This holds both for the choice of actors responsible for redistricting and for the specific decision-making rules those actors choose to utilize to draw maps. “Thus,” writes Buchler, “there can be no apolitical redistricting in any meaningful sense of the term because the choice of delegation is as ‘political’ as the choice of algorithm.”23
In partisan and bi-partisan (or incumbent protection) gerrymanders, it is easier to see how the process picks winners and losers. However, even if district lines are drawn to enhance competition between the parties (an approach Buchler calls a “competitive gerrymander”24), winners and losers are being determined. If competitive districts make it more likely that a centrist candidate will win, then centrist voters are the winners, and non-centrists are losers. If, given voter and candidate polarization, a non-centrist is sure to win, then non-centrists on the winning candidate’s side of the spectrum are the winners and centrists and non-centrists on the other side of the spectrum are the losers.25
Critical to the realpolitik argument is the claim that voters aren’t powerless in the process. They know that redistricting takes place in the year following the census and they can vote for candidates who will draw lines the way they’d prefer them to be drawn. As the political commentator
