Democrats are unhappy with Republican domination of the state legislatures and governorships – and they should be unhappy – then they have a much more direct option [than going to court]: They can go into the states and ask people for their votes in legislative races and in gubernatorial elections. If they find that route difficult, then maybe the Democrats should be rethinking what they’re trying to sell people.26
According to this view, when the voters put one party in charge of the entire post-census legislative process, they are likely to be satisfied with the legislative maps that party draws. (If, on the other hand, voters produce divided government – that is, control of at least one chamber in the state legislature is in the hands of one party while the governor is a member of the other party – then they apparently prefer compromise in the redistricting process.)
In fact, the realpolitik perspective maintains that it is undemocratic to take redistricting out of the democratic process. “Redistricting is not politicized. It is political,” writes Williamson. “For the Democrats and the Supreme Court to try to step in and take away from the state legislatures their longstanding right to draw up legislative districts as they see fit is much more deeply undemocratic than anything Republican gerrymanderers ever dreamt up.”27 Take, for instance, the use of independent redistricting commissions to draw district boundaries. Members of such a commission, like judges, may appear non-partisan but they undoubtedly have partisan loyalties. It’s not realistic to expect that people involved in public affairs will be apolitical. But even if they were non-partisan, redistricting commissions with the power to unilaterally determine district lines would not be accountable to the voters. What recourse would voters have if a redistricting commission produced district maps the voters found objectionable?
Finally, this perspective maintains that the rules of the game were established at the founding of the country, when the Constitution was adopted. Those rules – essentially, the Constitution – can be amended, but that process itself is provided for in the Constitution. However, in the absence of an attempt to change the Constitution, formally or informally as part of what might be referred to as “constitutional politics,” “normal politics” reigns.28 Normal politics is the familiar, day-to-day struggle over “who gets what, when, and how,” as the political scientist Harold Lasswell famously put it.29 Redistricting, then, is simply part of normal politics.
One might argue, of course, that the Constitution forbids partisan gerrymandering. We will consider that argument in a later chapter. For now, suffice it to say that the realpolitik viewpoint does not believe partisan gerrymandering is constitutionally prohibited. To understand why, it’s worth quoting law professors Larry Alexander and Saikrishna Prakash at length:
There is no natural or obviously correct way of dividing voters into equipopulous districts. People have diverse preferences about how that ought to occur. Nor are there obviously wrong or improper ways of allocating voters across equipopulous districts. If we are to believe that the Constitution mandates certain districting and electioneering ideals, then we have to suppose that the Constitution implicitly imposes certain rather controversial and complex preferences on the conduct of districting and elections. Necessarily, we have to imagine that the Constitution also implicitly rejects all other plausible preferences about districting and elections. We think that such claims have no merit.30
The countervailing viewpoint, the civic redistricting perspective, acknowledges that neutrality in human processes is difficult to achieve. Nonetheless, it takes the position that we should strive to find a set of rules governing the operation of elections that both parties (or, indeed, all parties) can accept. Without opening a Pandora’s box of contemporary political theory, this position is grounded in the notion of public reason and the claim that political actors ought to be reasonable in their public deliberations.31 To be reasonable, a person must be willing “to live by rules that can be justified to similarly motivated citizens on grounds that they could accept.”32 There is, then, an important element of reciprocity at work here. What is fair for one side ought to be fair for the other (or others). We’ll find a version of reciprocity later in the book in the concept of partisan symmetry.
With respect to processes governing democratic elections, reasonable people would likely agree that the purpose should be to establish robust competition. Competitive elections are, after all, a hallmark of democracy. In a series of academic papers, the legal scholars Samuel Issacharoff and Richard Pildes develop a framework for adjudicating electoral rules that seeks to maintain “competitive partisan political environments that avoid insider lockups of democratic politics.”33 Whereas current jurisprudence interprets election law in the context of individual rights and state interests, Issacharoff and Pildes argue that the focus should be on “the background rules that structure partisan political competition.”34 “The key to our argument,” they write,
is to view appropriate democratic politics as akin in important respects to a robustly competitive market – a market whose vitality depends on both clear rules of engagement and on the ritual cleansing born of competition. Only through an appropriately competitive partisan environment can one of the central goals of democratic politics be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens. But politics shares with all markets a vulnerability to anticompetitive behavior. In political markets, anticompetitive entities alter the rules of engagement to protect established powers from the risk of successful challenge.35
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
