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Redistricting Litigation and the Delegation of Democratic Design

2013; Oxford University Press; Volume: 93; Issue: 2 Linguagem: Inglês

0006-8047

Lisa Marshall Manheim,

Judicial and Constitutional Studies

The power to redraw electoral lines is the power to design elections. Enormous significance therefore attaches to any delegation of redistricting authority. Yet in every jurisdiction in the country, the power to redistrict has been delegated to a varied collection of actors whose participation largely has escaped academic attention. They are as ubiquitous as they are overlooked: they are the redistricting litigants. These actors' participation in the process leads to a startling form of redistricting. Though the majority of these litigants are not elected, appointed, or in any way vetted by the electorate at large, they are empowered to affect electoral lines in deliberate and politically consequential ways; to affect the rights of non-parties without providing class-action protections or other defenses; and to exploit a procedural regime that, due to the time pressures of the election cycle, becomes warped in ways that give litigants significant leverage to advance their own agendas. These features reflect a regime developed not through deliberate design, but rather through the accidental effects of judicial intervention. This Article responds to the persistent gap in the literature by revealing the unacknowledged power of redistricting litigants. It identifies the concerns their participation raises with respect to the outcomes, efficiency, and legitimacy of the redistricting process, and it concludes with a discussion of targeted reforms. These reforms include institutional adjustments meant to reduce reliance on litigants and procedural changes meant to give greater voice to non-parties.INTRODUCTIONRedistricting has a technical definition: the redrawing of electoral district boundaries. Yet scholars often describe the practice in far more colorful terms. Redistricting is the bloodsport of politics,1 an opportunity for players [to] game the system,2 or, simply, war.3 These characterizations attempt to capture what the definition lacks, which is an acknowledgment that the drawing of electoral boundaries has profound political and practical implications. The power to redistrict is the power to affect fundamental democratic design, for elections are influenced, and even decided by, the shape of particular districts.4 The understandable result is intense academic scrutiny directed at which individuals and institutions should be empowered to redistrict. To this end, scholars have debated the relative merits of courts over legislatures,5 legislatures over commissions,6 and commissions over courts,7 among other formulations.8 An emerging body of scholarship -- a burgeoning new election law institutionalism -- has advanced these debates even further.9These discussions are of tremendous value. But they are incomplete. Despite their foundation in institutional competence and design, they fail to take into adequate account -- and often fail even to acknowledge -- the pivotal role played each redistricting cycle by a separate set of agents: the redistricting litigants.10 Members of this group are empowered, in every jurisdiction across the country, to affect electoral lines in ways that are legally sanctioned and politically consequential. Yet their participation attracts almost no sustained scholarly attention.A more careful look at litigants' influence over redistricting confirms the timeliness and importance of exploring the implications of this phenomenon. As of the date that members of the 113th Congress -- including many elected pursuant to the most recent round of redistricting -- were sworn in, nearly 200 redistricting-related cases had been filed following the 2010 Census.11 This litigation already had had an enormous effect on democratic design across the country, as courts in over a dozen states had rejected plans that were designed, whether recently or in a prior redistricting cycle, by state legislatures or redistricting commissions, and within that set, over half had redrawn the district lines themselves. …