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In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders

Persily, Nathaniel A.

In the wake of the closest presidential election in history, and in an age of unprecedented partisan parity in the U.S. House of Representatives, U.S. Senate, and state governments, few would fault the Ameri-can political system for its lack of competition. And at a time when judges have become embroiled in politics to an unprecedented degree, even to the point of deciding a presidential election and drawing districts for dozens of legislatures, few would urge courts to reread the Constitutions o as to enlarge judges' role to that of trustbusters of perceived political cartels. And when the most prominent "independent" officials overseeing American politics in the last few years have been Kenneth Starr, Katherine Harris, the Florida Supreme Court, and the U.S. Supreme Court, few retain their faith in the notion of nonpartisan supervision of elections. Samuel Issacharoff is one of the few. His thoughtful and provocative article' urges courts to read the Constitution to enforce a prophylactic rule that would have the effect of declaring all current districting schemes unconstitutional because they were drawn by self-interested decisionmakers. Two distinct benefits would flow from this jurisprudential move, according to Issacharoff. First, nonpartisan redistricting would lead to increased intradistrict electoral competition, which in turn would lead to greater responsiveness and accountability in government. Second, by adopting a prophylactic rule that deems all purposeful redistricting suspect, the Court would put an end to the racialization of political redistricting fights resulting from partisan actors' seeking judicial redress through the limited tools of the uncertain Shaw doctrine2 and the Voting Rights Act.3 I disagree fundamentally, but I hope respectfully, with almost every aspect of Issacharoff's argument. First, I disagree with his definition and his assessment of the problem he wishes to solve. By focusing on incumbent reelection rates and margins of victory, Issacharoff ignores evidence both of intense competition for control of legislatures and of remarkable levels of legislative turnover. Second, to the extent incumbents have unfair and growing advantages over challengers, redistricting is not to blame. We know this because statewide elections unaffected by redistricting, such as elections for governor and U.S. Senate, have shown parallel growth in rates of incumbent reelection. Third, the creation of safe seats, the principal target of Issacharoff's ire, is neither inherently undesirable nor easily avoidable. Although intradistrict partisan competition may suffer from bipartisan gerrymanders, representation may be the beneficiary. There is no a priori reason to prefer a districting system that produces many competitive races over one that produces proportional representation. In fact, given that competitive districts may lead both to greater power for the ideologically centrist, median voter and to almost half of the voters' being un-happy with their representative, there is good reason to consider safe districts preferable from the standpoint of democratic theory. More-over, states have legitimate interests in sending a congressional delegation to Washington that has the greatest possible seniority and in keeping experienced legislators in state government. Fourth, redistricting by politically insulated commissions, the alternative that Issacharoff would have the courts force upon state governments, is both undesirable in theory and difficult to create in fact. If our experience with in-dependent counsels or with those overseeing the 2000 election debacle did not dispel the myth of nonpartisan oversight of politics, an analysis of current redistricting commissions and the Federal Election Commission should. Indeed, the whole enterprise of expanding or reconceptualizing judicial authority in the political sphere to include a role as trustbuster of political cartels is fraught with problems. If anything, recent experience argues in favor of a judicial retreat from the political thicket.

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Harvard Law Review

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Law
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November 14, 2011
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