Eisler, Jacob

English

Florida State University College of Law

Florida State University College of Law Scholarship Repository Scholarly Publications 2018 Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty Jacob Eisler Florida State University College of Law, jeisler@law.fsu.edu Follow this and additional works at: https://ir.law.fsu.edu/articles  Part of the Law Commons Recommended Citation Jacob Eisler, Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty, 77 Cambridge Law Journal 414 (2018), Available at: https://ir.law.fsu.edu/articles/774 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Scholarly Publications by an authorized administrator of Scholarship Repository. For more information, please contact efarrell@law.fsu.edu. The Cambridge Law Journalvolumes, delivering the drafting process on a platter to the interested reader who canaccess them. But that is the key here: an 18-volume outcome does rather strainaffordability as well as portability; and although a huge asset for research, is lesslikely to find use as a teaching aide or any other function entailing a brief consult-ation. At E325.00 and 2,580 pages the ICESCR travaux are also not your averagecommuter's read, but they can be carried about and worked through in a relativelyefficient way.Helping that possibility along is Saul's detailed list of contents, in which the titleof each document is accompanied by a keyword summary of the issues covered in it.Most usefully, this list further identifies documents that have not been reproducedbut might be relevant; a title and keyword summary are also provided for thesedocuments. There is no separate index. There would have been added benefit toarranging the keywords of the list of contents into one, but the list in itself doesoffer valuable guidance. Of value also is Saul's succinct introduction, whichexplains the texts that preceded and were influential upon the drafting of theICESCR, and contains an account of the drafting process, including of momentsat which the inclusion of economic and social rights in a binding legal agreementbecame a matter of debate. The whole is a short yet nuanced overview of thechain of events that shaped the ICESCR. It whets the reader's appetite to knowmore, and also paves the ground for the more intricate record of deliberations thatis provided via the materials selected as the travaux.In short these volumes of the travaux are timely and well compiled. The editorhas made thoughtful presentation decisions that will facilitate the use of the volumesat various level of engagement (here it is also worth acknowledging the design ele-ments; especially the clean, well-spaced layout of the text). An immensely valuableresource in themselves, we should now hope that their publication will also catalysethe complete electronic transcription (and free online availability) of the full recordof ICESCR's preparation.SURABHI RANGANATHANKING'S COLLEGE, CAMBRIDGEGerrymandering in America: The House of Representatives, the Supreme Court,and the Future of Popular Sovereignty. By ANTHONY J. MCGANN, CHARLESANTHONY SMITH, MICHAEL LATNER and ALEX KEENA [Cambridge UniversityPress, 2016. vi +261 pp. Paperback E24.00. ISBN 978-13-16507-67-4.]Writing a book that intervenes in a topical debate while making a lasting scholarlycontribution is a high-wire act. Authors must comment on a transient state of affairswhile establishing a durable truth. In commenting on the manipulation of legislativedistricts for political gain and the appropriate standards to proscribe such practice,the authors of Gerrymandering in America have identified a topical debate.Partisan gerrymandering is one of the most sharply contested issues in theAmerican federal courts and in the American legal academy. However, thebook's most intriguing contributions are discrete observations, and the potentialimpact of these observations will be undermined by the facts that the law is complexand changing quickly and the scholarship is fast-moving.The authors' main claim is that the US Supreme Court case of Vieth v Jubelirer,541 U.S. 267 (2004) and its impact on US democratic representation have beenbroadly ignored. This claim might have been tenable at the time the book was414 [2018]Book Reviewsconceived and, had partisan gerrymandering and its consequences since Vieth beenoverlooked, the text might have been a call to action. It is painful to find fault inauthors for declaring their book to be ground-breaking when developments haveovertaken it before the ink of the first print run is dry. However, while the greatinterest of scholars in partisan gerrymandering ensures that the scholarly literaturemoves quickly, many of the most salient scholarly contributions in fact pre-dateGerrymandering in America. The book vividly if briefly engages with the scholar-ship that has proven to be fulcrum of the current headline-grabbing Americanlitigation over partisan gerrymandering, specifically the work of NicholasStephanopolous, Eric McGhee, Jowei Chen and Jonathan Rodden. Those scholarshave offered analytic frameworks that radically depart from pre-existing treatmentsof the topic, and the claim of novelty by the authors of Gerrymandering in Americamight have been vindicated by a methodology that likewise challenges establishedapproaches. However, the book primarily critiques districting practices in relianceupon partisan bias - which, as the book recognises, was pioneered in the 1980sand received significant attention in the Supreme Court (League of United LatinAmerican Citizens v Perry, 548 U.S. 399 (2006)) and in a subsequent wave ofscholarship more than a decade ago.The most novel contribution of Gerrymandering in America is to categorise statedistricting plans using two characteristics - degree of responsiveness to voter pref-erence and partisan bias - and to apply this categorisation to the 2000 and 2010state legislative districtings and subsequent elections. The authors' core observationis that partisan bias increased following the 2010 districting. They then map thesefindings onto various other political conditions, such as the differing means bywhich states allocate responsibility for redrawing district lines, and how statesdiffer based on the competitiveness of their elections. The analytic frameworkand the authors' results are compelling, but would benefit from greater scrutinyof the legal and democratic norms which the authors invoke. These norms arewhether battles for political seats should be highly competitive (that is, if ejectingthe incumbent or incumbent party is a desirable feature in a districting plan) andwhether districting plans should be permitted to favour a given party. The validityof those norms is debated. For example, the Supreme Court in Gaffney v Cummings,412 U.S. 735 (1973) accepted that a bipartisan gerrymander that produced propor-tional representation by party identity is permissible. The federal bench has thusapparently rejected the value of responsiveness independent of partisan bias.Likewise, the conditions under which bias towards a party becomes normativelyundesirable or legally unacceptable remain contested. Some have proposed that,absent a constitutional mandate for proportional representation, a "victory bonus"in representation for a party that has won the right to draw district lines may bedemocratically legitimate. The authors engage little with the issues that underliethese questions, forgoing the opportunity to lay a path towards a new interpretationof American representation.Over-broad claims undermine some of the authors' conclusions, including somethat are derived from this intriguing quantitative framework. The book suggests thatthe Vieth decision bears significant causal responsibility for increased bias in statedistricting plans. The authors identify various alternative explanations for theincreased partisan bias. However, their non-committal conclusion as to whatcause is ultimately responsible for the fractious condition of legislative redistrictingis not satisfying. This is significant given the importance the book broadly attributesto Vieth.Likewise, significant attention is dedicated to the question of whether the "nat-ural" distribution of Democrat and Republican voters tends to favour RepublicansC.L.J. 415The Cambridge Law Journalin the districting process. The authors say that legislative intention is responsible forpartisan bias, and then acknowledge that Democrats have a natural (sometimesinsurmountable) disadvantage in districting owing to geographical factors. Themost theoretically interesting question is evoked by this problem: what is the nor-mative responsibility of legislatures with regards to districting by partisan identitywhen there are conditions that facilitate certain biases and may naturally benefit cer-tain factions? Rather than address that question, the authors fall back on a semanticdistinction. This is between forms of geographic favourability which they call"strong" (inevitable due to natural voter distribution) and "weak" (granting legisla-tures the opportunity to benefit one party over the other). They argue that only the"weak" form is present, and that this is sufficient to show that bias should be attrib-uted to the legislature. This claim may be correct in the most literal sense, as statelegislatures are the agents that implement district plans. However, the argumentbecomes circular: when districts are biased, that is because legislatures havedrawn biased districts. The authors ignore the fact that any districting plan will bal-ance multiple competing factors, and that any entity responsible for districting mustmake trade-offs. Such discretion does create the opportunity for self-serving partisanline-drawing. How should such self-serving conduct be evaluated? The book helpsone to see that this is the question, but does not fully explore it.Various subtle but important aspects of the case law are also underappreciated inthe authors' analysis. The book boldly treats Vieth as a complete judicial disavowalof intervention in partisan gerrymandering. In fact only the conservative plurality soheld. Justice Kennedy famously refused to conclude that partisan gerrymandering isnecessarily non-justiciable, leaving open the possibility that future developmentscould enable appropriate judicial intervention. The authors recognise that theprior law under Davis v Bandemer, 478 U.S. 109 (1986) produced little direct judi-cial nullification of gerrymanders and was generally seen as ineffective. However,they still maintain that Vieth was decisive in changing legislative behaviour andincreasing partisan bias. The book's structure thus depends upon an overly sim-plified view of the law and its impact upon legislative behaviour. The treatmentof other leading decisions is also somewhat cursory. For example, the SupremeCourt decision Karcher v Daggett, 462 U.S. 725 (1983) indicates the appropriatefactors that a districting may take into account (such as contiguity of communitiesor existing geographic features). These factors (whose normative validity is a sep-arate issue) might contribute to the "weak" sense of geographical partisan bias, orat least complicate any conclusion that the "weak" tendency towards bias is theresult of intentional legislative action. But Karcher receives limited attention, asdoes the fact that intrinsically superior baseline principles for districting are yet tobe found and broadly accepted.The latter half of the book offers a series of historical and theoretical commentar-ies on the legal character of partisan gerrymandering. While each of these commen-taries provides a provocative perspective, they are not integrated with thequantitative core of the book, and each provides a brief take on issues of great com-plexity and depth. For example, one of the chapters argues that Vieth, by enablingstates to shape national representation through gerrymanders, realises theAnti-Federalist preference for a weak national government. This is an interestingobservation regarding how partisan gerrymandering gives state legislatures an add-itional political lever. However, as a description of the hydraulics of power it isinaccurate: the districting that led to the Vieth litigation itself was partly inducedby the national Republican Party's instruction to the Pennsylvania Republicans topunish the Democratic Party for advancing democratic gerrymanders in other states.If politicised districting serves to benefit any class of political actor, it would seem416 [2018]Book Reviewsto be party elites. The question of how courts should intervene to regulate party-voter interaction is a thorny question as thoroughly entangled with issues of raceand wealth as with the one-person, one-vote principle. Likewise, the book's keyclaim that equal protection doctrine requires a principle of majority rule by partyidentity hangs on unspoken substantive assumptions. For example, the bookrequires one to assume that party identity is sufficiently fixed to deserve treatmentas an equal protection category, or that personal party identity has moral or legalstatus analogous to the individual right expressed by one-person one-vote.The book thus raises more questions than it answers, particularly from a legal per-spective. Given the fast-paced transformation of law and scholarship surroundingpartisan gerrymandering, this may dampen its impact. Its most interesting anddefensible assertions are discrete, and would do better as stand-alone argumentsadvanced with a targeted focus. This is particularly true of its core quantitative ana-lysis, which is a strong a candidate for illuminating the practical effects of partisangerrymandering.JACOB EISLERJESUS COLLEGELegislation at Westminster: Parliamentary Actors and Influence in the Making ofBritish Law. By MEG RUSSELL and DANIEL GOVER. [Oxford University Press,2017. xii+324 pp. Hardback £50.00. ISBN: 978-01-98753-82-7.]We are taught that Parliament is central to law-making. Yet, at Westminster, themajority of Bills which become law are drafted by the Government. People oftendoubt Parliament's importance in the legislative process. Is Parliament really centralif the Government's Bills nearly always succeed? Does Parliament really scrutinisegovernment Bills? Is Parliament little more than a "talking shop"? The question ofhow central Parliament is to the legislative process is the subject of Meg Russell andDaniel Gover's book, which injects some much needed empirical analysis intodebates about Parliament's influence on law-making. Through an analysis of parlia-mentary amendments to government Bills, the authors contend that Parliamentexerts greater influence over the law-making process than is commonly supposed.Amendments are proposals made by parliamentary actors to change the text of aBill by adding to, removing or replacing some of its content. A parliamentary actoris an individual or a collective group who occupies an institutionally defined rolewithin the Westminster law-making process. The amendment of Bills can involvea range of different parliamentary actors - government ministers, the opposition,government backbenchers, non-partisan parliamentarians within the House ofLords, select committees and cross-party working groups - who each may, at vari-ous stages of the law-making process, desire changes in a Bill's content. Russell andGover's convincing analysis demonstrates that parliamentary influence is both vis-ibly and obscurely exerted through amendments. They identify what they label asthe multiple "faces of parliamentary power", some visible and others less so.Parliament's visible "faces" include power to change Bills through the amendmentprocess. Significantly, Russell and Gover adopt a broad understanding of how thispower is exercised in practice. They view this power as being exercised in two ways:through the recognised approach of focusing on proposed non-governmentalamendments which formally succeed, and through those amendments which for-mally fail, but which in substance are taken up later in the process throughC.L.J. 417

Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty

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Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty

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