Thinking about Gerrymandering
Spring 2018 Colloquium Series
There is a question that comes prior to—or, at the very least, a question that is Gordian-ly knotted up with—the one at the center of University of Oklahoma Professor Keith Gaddie’s January 31 talk at the Kinder Institute. Specifically, before we can go forward with implementing a judicial test for assessing the constitutionality of partisan gerrymanders, we have to first determine whether or not they are justiciable in the first place. And as Prof. Gaddie noted in opening his talk, the fate of this first order question hangs on one man, Supreme Court Justice Anthony Kennedy, who concurred with the plurality opinion in 2004’s Vieth v. Jubelirer, which determined partisan gerrymanders to be non-justiciable, but who also left the door open to being persuaded by the development of new judicial standards for adjudicating gerrymandering to be applied in future cases.
Justice Kennedy’s determination fits within the history of re-districting cases on two fronts. As his ruling suggests, unlike in instances of population and racial gerrymandering, where constitutionality is tethered to Article 1 and Amendment 14 of the Constitution, there is no clear cut legal theory in place to support claims of voter discrimination based on partisan affiliation. Perhaps for this reason, Prof. Gaddie explained, the partisan gerrymander is one we have traditionally allowed ourselves under a “spoils of war” logic. But as he went on to show, the consequence of this passive acceptance is that we run the risk of undermining a fundamental assumption of democracy by inoculating incumbents and incumbent parties against the variability of popular support.
If the way in which partisan gerrymandering compromises free expression of political will is enough to suggest that the practice can be unconstitutional, how to determine when it is unconstitutional remains un-settled. During his recent work on challenged district maps in Wisconsin, however, Prof. Gaddie developed a test for addressing this judicial question of ‘when’ that revolves around a three-pronged query: Is the map so asymmetrical that it falls outside the acceptable range of seat bonus distortion that can occur within justly drawn single-member districts? Is the map responsive to shifts in popular support? And, to paraphrase Huck Finn, “was they made or did they only just happen”—i.e., were districts constructed with discernible discriminatory partisan intent (a more difficult question to answer, to be sure, but one which we can begin to address by looking at factors such as caucus continuity).
The final hurdle is developing a usable legal theory to combat the counter-claim that partisanship is simply too unstable to be considered as a political class. Polarization, he argued, might be a key to fleshing out this theory, but regardless, we’ll know more soon, as a pair of re-districting cases, Gill v. Whitford and Benisek v. Lamone, are on the federal Supreme Court’s 2018 docket.
Keith Gaddie earned his PhD in political science from the University of Georgia (1993) and his undergraduate degree from the Florida State University (1987). He is currently Executive Faculty Fellow of the University of Oklahoma and Senior Fellow of OU’s Headington College. Since 2015, he has also been President’s Associates Presidential Professor of political science and journalism. Among his published works are the books Triumph of Voting Rights In the South (2009), Rise and Fall of the Voting Rights Act (2016), and The Three Governors Controversy: Skullduggery, Machinations, and the Decline of Georgia’s Progressive Politics (2015). He has twice won the V.O. Key Award for outstanding book on southern politics. Dr. Gaddie is also Associate Director of the OU Center for Intelligence and National Security (an Intelligence Community Center for Academic Excellence) and general editor of Social Science Quarterly. From 2014-2017 he was chair of the department of political science at OU. Dr. Gaddie previously served on the faculty of Tulane University School of Public Health and Tropical Medicine and Centre College, and his current research focuses on architectural theory and practice in democracy, and redistricting reform.