Redistricting and the territorial community

University of Pennsylvania Law Review

Volumn 160, Issue 5, 2012, Pages 1379-1477

  Stephanopoulos, Nicholas O ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 84860626912     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (383)

1. For more on the ongoing litigation over electoral district lines since the 2010 Census, see Justin Levitt, Litigation in the 2010 Cycle, ALL ABOUT REDISTRICTING, http://redistricting.lls.edu/cases.php (last visited Feb. 15, 2012).
2. Political gerrymandering is usually defined as the drawing of electoral districts in order (1) to advance one major party's interests at the other's expense or (2) to protect the incumbents of both parties. Vieth v. Jubelirer, 541 U.S. 267, 271 n.1 (2004) (plurality opinion)
3. (citing BLACK'S LAW DICTIONARY 696 (7th ed. 1999)).
4. While not quarreling with this definition, this Article also conceives of political gerrymandering in a third way: as the drawing of district lines in such a way that organic territorial communities are disrupted. Cf. Whitcomb v. Chavis, 403 U.S. 124, 177 (1971) (Douglas, J., dissenting in part and concurring in the result in part) ("The problem of the gerrymander is how to defeat or circumvent the sentiments of the community.").
5. See, e.g., Samuel Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 TEX. L. REV. 1643, 1684 (1993) ("Bandemer is a mass of confusion on what the Court actually believes is the constitutional harm.");
6. Daniel Hays Lowenstein, Bandemer's Gap: Gerrymandering and Equal Protection, in POLITICAL GERRYMANDERING AND THE COURTS 64, 74-77 (Bernard Grofman ed., 1990).
7. See id. at 316-17 (Kennedy, J., concurring in the judgment). In the subsequent case of League of United Latin American Citizens (LULAC) v. Perry, the Court explicitly declined to answer any of the questions left hanging by Vieth. See 548 U.S. 399, 414 (2006) ("We do not revisit [Vieth's] justiciability holding."). Unsurprisingly, the scholarly response to Vieth has been sharply negative.
8. See, e.g., Richard Briffault, Defining the Constitutional Question in Partisan Gerrymandering, 14 CORNELL J.L. & PUB. POL'Y 397, 399 (2005);
9. James A. Gardner, A Post-Vieth Strategy for Litigating Partisan Gerrymandering Claims, 3 ELECTION L.J. 643, 643 (2004) (noting that "[t]he result [in Vieth] was disappointing" and "left the law a shambles");
10. Heather K. Gerken, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U. PA. L. REV. 503, 528 (2004) ("[T]he Court at this moment seems to be at sea when deciding election law cases.");
11. Richard L. Hasen, Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims After Vieth, 3 ELECTION L.J. 626, 627-28, 642 (2004);
12. Daniel H. Lowenstein, Vieth's Gap: Has the Supreme Court Gone from Bad to Worse on Partisan Gerrymandering?, 14 CORNELL J.L. & PUB. POL'Y 367, 368, 393-94 (2005).
13. See, e.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 615-17 (2002);
14. Samuel Issacharoff & Pamela S. Karlan, Where To Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541, 570-74 (2004);
15. Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 680-81 (1998); (Pubitemid 128426601)
16. Richard H. Pildes, The Constitution and Political Competition, 30 NOVA L. REV. 253, 262-63 (2006).
17. See, e.g., Andrew Gelman & Gary King, A Unified Method of Evaluating Electoral Systems and Redistricting Plans, 38 AM. J. POL. SCI. 514, 517-21 (1994);
18. Bernard Grofman & Gary King, The Future of Partisan Symmetry as a Judicial Test for Partisan Gerrymandering After LULAC v. Perry, 6 ELECTION L.J. 2, 6-9 (2007
19. Richard G. Niemi, The Relationship Between Votes and Seats: The Ultimate Question in Political Gerrymandering, 33 UCLA L. REV. 185, 195-200 (1985).
20. See, e.g., Mitchell N. Berman, Managing Gerrymandering, 83 TEX. L. REV. 781, 825-28 (2005); Briffault, supra note 9, at 416.
21. See, e.g., Richard G. Niemi et al., Measuring Compactness and the Role of a Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J. POL. 1155, 1176-78 (1990);
22. Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 YALE L. & POL'Y REV. 301, 302, 326-51 (1991);
23. Cf. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 536 (1993) (analyzing racial gerrymandering doctrine in compactness terms).
24. See, e.g., Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601, 607-16 (2007).
25. See, e.g., Gordon E. Baker, The "Totality of Circumstances" Approach, in POLITICAL GERRYMANDERING AND THE COURTS, supra note 6, at 203, 205-10;
26. Bernard Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L. REV. 77, 171-72 (1985).
27. See, e.g., Larry Alexander, Lost in the Political Thicket, 41 FLA. L. REV. 563, 577-78 (1989);
28. Bruce E. Cain, Simple vs. Complex Criteria for Partisan Gerrymandering: A Comment on Niemi and Grofman, 33 UCLA L. REV. 213, 225-26 (1985);
29. Daniel H. Lowenstein & Jonathan Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory?, 33 UCLA L. REV. 1, 73-75 (1985);
30. Nathaniel Persily, Reply, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 HARV. L. REV. 649, 679-81 (2002);
31. Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 COLUM. L. REV. 1325, 1330, 1384 (1987).
32. See Vieth v. Jubelirer, 541 U.S. 267, 292-301 (2004) (plurality opinion); id. at 308 (Kennedy, J., concurring in the judgment) (agreeing with plurality's criticisms of dissenters' proposed standards);
33. see also Davis v. Bandemer, 478 U.S. 109, 138-43 (1986) (plurality opinion) (rejecting Justice Powell's totality-of-circumstances approach).
34. Vieth, 541 U.S. at 350 n.5 (Souter, J., dissenting).
35. See LULAC, 548 U.S. 399, 419-20 (2006) (opinion of Kennedy, J.).
36. See Nicholas Stephanopoulos, Reforming Redistricting: Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail, 23 J.L. & POL. 331, 332-37 (2007).
37. Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 66 (2004).
38. See, e.g., JEREMY BUCHMAN, DRAWING LINES IN QUICKSAND: COURTS, LEGISLATURES, & REDISTRICTING 204 (2003);
39. BRUCE E. CAIN, THE REAPPORTIONMENT PUZZLE 63-66 (1984);
40. Dean Alfange, Jr., Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last, 1986 SUP. CT. REV. 175, 215-16;
41. Charles Backstrom et al., Establishing a Statewide Electoral Effects Baseline, in POLITICAL GERRYMANDERING AND THE COURTS, supra note 5, at 145, 153; Pildes & Niemi, supra note 13, at 577.
42. See, e.g., John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 STAN. L. REV. 607, 616 (1998); (Pubitemid 128426600)
43. Richard L. Engstrom, The Post-2000 Round of Redistricting: An Entangled Thicket Within the Federal System, PUBLIUS, Fall 2002, at 51, 66-67;
44. Lowenstein & Steinberg, supra note 16, at 32-33; Nathaniel Persily, When Judges Carve Democracies: A Primer on Court-Drawn Redistricting Plans, 73 GEO. WASH. L. REV. 1131, 1160-61 (2005).
45. See Grofman, supra note 15, at 90; Bernard Grofman, Would Vince Lombardi Have Been Right if He Had Said: "When It Comes to Redistricting, Race Isn't Everything, It's the Only Thing"?, 14 CARDOZO L. REV. 1237, 1262-63 (1993).
46. See Henry L. Chambers, Jr., Enclave Districting, 8 WM. & MARY BILL RTS. J. 135, 176-82 (1999).
47. See James A. Gardner, Foreword: Representation Without Party: Lessons from State Constitutional Attempts To Control Gerrymandering, 37 RUTGERS L.J. 881, 894-97 (2006)
48. [hereinafter Gardner, Representation Without Party];
49. James A. Gardner, One Person, One Vote and the Possibility of Political Community, 80 N.C. L. REV. 1237, 1241-46 (2002)
50. [herein Gardner, Possibility of Community];
51. James A. Gardner, What Is "Fair" Partisan Representation, and How Can It Be Constitutionalized? The Case for a Return to Fixed Election Districts, 90 MARQ. L. REV. 555, 578-82 (2007)
52. [hereinafter Gardner, Fixed Election Districts].
53. Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
54. LULAC, 548 U.S. 399, 441 (2006).
55. Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion).
56. In a sequel to this Article, I use newly available Census data as well as specialized mapping software to identify geographic communities directly. See Nicholas O. Stephanopoulos, Spatial Diversity, 125 HARV. L. REV. (forthcoming 2012).
57. See Daniel R. Ortiz, Got Theory?, 153 U. PA. L. REV. 459, 475-76 (2004) (noting that redistricting "raises issues about the purpose and function of the [legislature], the value of political competition, and how voters should be represented").
58. See Richard Briffault, Lani Guinier and the Dilemmas of American Democracy, 95 COLUM. L. REV. 418, 421 (1995)
59. (reviewing LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY (1994)) (arguing, in election law context, that "[t]he theoretical and the lawyerly are closely intertwined").
60. See, e.g., NANCY L. SCHWARTZ, THE BLUE GUITAR: POLITICAL REPRESENTATION AND COMMUNITY 54 (1988);
61. Alfange, supra note 22, at 216 ("Voters do identify with the place in which they live, and do have a feeling of sharing concerns with others who live in that place."); Charles H. Backstrom, Problems of Implementing Redistricting ("People think of themselves as belonging together in counties in rural areas, in cities or sectors of metropolitan areas, and in neighborhoods of central cities."), in REPRESENTATION AND REDISTRICTING ISSUES 43, 47 (Bernard Grofman et al. eds., 1982);
62. Harold M. Proshansky et al., Place Identity: Physical World Socialization of the Self ("Individuals do indeed define who and what they are in terms of strong affective ties to. neighborhood and community."), in GIVING PLACES MEANING 87, 91 (Linda Groat ed., 1995).
63. See, e.g., Richard Briffault, Race and Representation After Miller v. Johnson, 1995 U. CHI. LEGAL F. 23, 41 ("Many of the most important interests and concerns people have relate to. their immediate geographic environment."); Chambers, supra note 26, at 163 ("[P]eople who live in close proximity share similar political interests.");
64. Benjamin Forest, Mapping Democracy: Racial Identity and the Quandary of Political Representation, 91 ANNALS ASS'N AM. GEOGRAPHERS 143, 157 (2001) ("[P]ropinquity is important because political interests, preferences, and identity. are formed and defined by local geographic communities.").
65. Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 750 (1964) (Stewart, J., dissenting).
66. Id.; see also Whitcomb v. Chavis, 403 U.S. 124, 159 (1971) (discussing the "general preference for legislatures reflecting community interests as closely as possible");
67. Reynolds v. Sims, 377 U.S. 533, 623-24 (1964) (Harlan, J., dissenting) ("[L]egislators can represent their electors only by speaking for their interests. many of which do reflect the place where the electors live."); Briffault, supra note 35, at 431 ("[P]lacebased interests are the ones that ought to be guaranteed representation in the legislature.");
68. Gardner, Fixed Election Districts, supra note 27, at 574 ("[T]he interests that ought to be represented in the legislature are those that are held in common by people living in a particular place."); C.O. Sauer, Geography and the Gerrymander, 12 AM. POL. SCI. REV. 403, 404-05 (1918).
69. See, e.g., Davis v. Bandemer, 478 U.S. 109, 173 n.13 (1986) (Powell, J., concurring in part and dissenting in part) ("Confusion inevitably follows. when a citizen finds himself or herself forced to associate with several artificial communities."); BUCHMAN, supra note 22, at 203 ("Plans that do not split [community] boundaries ostensibly help voters identify their representatives, and vice versa.");
70. Martin Shapiro, Gerrymandering, Unfairness, and the Supreme Court, 33 UCLA L. REV. 227, 243 (1985).
71. See, e.g., CAIN, supra note 22, at 64 ("The argument that districts should not divide communities. is in effect a plea for homogeneous districts."); RICHARD F. FENNO, JR., HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS 6 (1978) ("[T]he most homogene ous districts. incorporate pre-existing communities of interest."); Richard Morrill, A Geographer's Perspective, in POLITICAL GERRYMANDERING AND THE COURTS, supra note 5, at 212, 216.
72. THE FEDERALIST NO. 56, at 346 ( James Madison) (Clinton Rossiter ed., 1961);
73. see also MALCOLM E. JEWELL, REPRESENTATION IN STATE LEGISLATURES 115 (1982) ("In a district that is basically homogeneous. the task of representation is relatively easy."); Chambers, supra note 26, at 149 ("A representative can most easily advance the interests of her constituency when those interests are clearly or narrowly defined.").
74. See, e.g., Karcher v. Daggett, 462 U.S. 725, 787 (1983) (Powell, J., dissenting) ("A legislator cannot represent his constituents properly. when a voting district is nothing more than an artificial unit.");
75. Prosser v. Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992) ("To be an effective representative, a legislator must represent a district that has a reasonable homogeneity of needs and interests.");
76. According to the traditional delegate-trustee dichotomy, representatives who are delegates abide by the expressed preferences of their constituents, while representatives who are trustees make their own autonomous policy decisions. See generally HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 144-67 (1967).
77. See, e.g., DAVID BUTLER & BRUCE CAIN, CONGRESSIONAL REDISTRICTING: COMPARATIVE AND THEORETICAL PERSPECTIVES 71 (1992) ("[A] communities of interest approach necessarily implies a delegate theory of representation. ");
78. ROYCE HANSON, THE POLITICAL THICKET: REAPPORTIONMENT AND CONSTITUTIONAL DEMOCRACY 130-31 (1966);
79. Heather Gerken has labeled this pattern of intra-district homogeneity and interdistrict heterogeneity as "second-order diversity." Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1107-08 (2005). Of course, even under this approach, only views that are held by sufficiently large and geographically defined groups of people will be represented in the legislature.
80. Letter from John Adams to John Penn (Jan. 1776), in THE POLITICAL WRITINGS OF JOHN ADAMS 491, 493 (George W. Carey ed., 2000);
81. see also Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 749 (1964) (Stewart, J., dissenting) (arguing for "effective representation in the State's legislature. of the various groups and interests making up the electorate");
82. J.R. POLE, POLITICAL REPRESENTATION IN ENGLAND AND THE ORIGINS OF THE AMERICAN REPUBLIC 184 (1966) ("[T]he representative Assembly must be merely a small-scale replica of the whole people, drawn directly from it and reproducing it without the slightest distortion.");
83. Phil C. Neal, Baker v. Carr: Politics in Search of Law, 1962 SUP. CT. REV. 252, 277 ("[T]he general interest, and the innumerable separate interests of which it is composed, will be better expressed in a medley of voices from minor fractions of the population than by any monolithic majority.").
84. See, e.g., EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 41-43 (1988);
85. ANNE PHILLIPS, ENGENDERING DEMOCRACY 63 (1991) (discussing "near universal practice of electing representatives according to geographical constituencies");
86. ANDREW REHFELD, THE CONCEPT OF CONSTITUENCY: POLITICAL REPRESENTATION, DEMOCRATIC LEGITIMACY, AND INSTITUTIONAL DESIGN 56 (2005) ("[T]erritorial districting in the United States is such a habit of mind that it is not seriously challenged.");
87. Lani Guinier, Groups, Representation, and Race- Conscious Districting: A Case of the Emperor's Clothes, 71 TEX. L. REV. 1589, 1603-05 (1993);
88. See Polsby & Popper, supra note 13, at 307 n.29 ("[T]he Founders valued the faction-diluting character of representation by place. [T]he authors of the Constitution deliberately chose geographical representation."); James Thomas Tucker, Redefining American Democracy: Do Alternative Voting Systems Capture the True Meaning of "Representation"?, 7 MICH. J. RACE & L. 357, 369 (2002) ("[T]he Constitutional Framers intended that Representatives be elected from [geographic] districts.").
89. ELAINE SPITZ, MAJORITY RULE 52 (1984); see also BUCHMAN, supra note 22, at 197 (discussing "the assumed linkage between geography and politically salient interests that conceptually underpins a reliance on district-based elections"); Gardner, Fixed Election Districts, supra note 27, at 584 ("[T]erritorial representation. must rest on the fact that the residents of represented territories comprise distinct and coherent local communities."); Guinier, supra note 52, at 1610-12;
90. Timothy G. O'Rourke, Shaw v. Reno: The Shape of Things to Come, 26 RUTGERS L.J. 723, 770 (1995) ("[T]he commitment to geographic districting requires. the creation of districts that. constitute identifiable constituencies."). I can think of one value other than adherence to the territorial community that geographic districting might plausibly aim to capture: administrability. But while geographically demarcated districts are indeed easily administrable, so too are non-spatial districts, particularly given the rise of modern information technology.
91. See, e.g., BUCHMAN, supra note 22, at 160; MELISSA S. WILLIAMS, VOICE, TRUST, AND MEMORY: MARGINALIZED GROUPS AND THE FAILINGS OF LIBERAL REPRESENTATION 73 (1998);
92. T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. REV. 588, 637 (1993);
93. RICHARD L. MORRILL, POLITICAL REDISTRICTING AND GEOGRAPHIC THEORY 63 (1981);
94. see also BILL BISHOP, THE BIG SORT: WHY THE CLUSTERING OF LIKE-MINDED AMERICA IS TEARING US APART 5 (2008) (arguing that Americans now "cluster[] in communities of sameness, among people with similar ways of life, beliefs, and, in the end, politics");
95. Richard T. Ford, Law's Territory (A History of Jurisdiction), 97 MICH. L. REV. 843, 914 (1999) ("Even in the highly urban, industrialized and culturally polyglot societies of the Western capitalist democracies, the assertion of organic cultural community is appealing.");
96. David B. Knight, Identity and Territory: Geographical Perspectives on Nationalism and Regionalism, 72 ANNALS ASS'N AM. GEOGRAPHERS 514, 526 (1982).
97. Robert G. Dixon, Jr., Fair Criteria and Procedures for Establishing Legislative Districts, in REPRESENTATION AND REDISTRICTING ISSUES, supra note 37, at 7, 16; see also Shaw v. Hunt (Shaw II ), 517 U.S. 899, 936 n.13 (1996) (Stevens, J., dissenting) (positing that voters' "interest in being in a district whose members share similar interests and concerns. often is not[] vindicated by drawing districts with attractive shapes");
98. MARK MONMONIER, BUSHMANDERS AND BULLWINKLES: HOW POLITICIANS MANIPULATE ELECTRONIC MAPS AND CENSUS DATA TO WIN ELECTIONS 71 (2001);
99. Issacharoff & Pildes, supra note 10, at 646; see also Issacharoff, supra note 10, at 623 ("[D]emocracy is defined primarily by the accountability of the elected to the electors, an accountability that is in turn shaped through competitive elections."); Richard H. Pildes, Competitive, Deliberative, and Rights-Oriented Democracy, 3 ELECTION L.J. 685, 688 (2004)
100. (reviewing RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY (2003)).
101. Richard H. Pildes, The Theory of Political Competition, 85 VA. L. REV. 1605, 1613-15 (1999) (applying approach to threshold vote requirements for parties in proportional representation systems).
102. See Adam B. Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 SUP. CT. REV. 409, 425 (2004) ("[I]n places where there are. politically homogeneous groups of voters, there may be no reasonable redistricting arrangement that is capable of. produc[ing] competitive general elections.").
103. Issacharoff & Karlan, supra note 10, at 574; see also Samuel Issacharoff, Surreply, Why Elections?, 116 HARV. L. REV. 684, 692 (2002) ("There will always be a Utah and a Massachusetts. The question is not whether districts should be homogenized. but whether districts may be rigged so as to diminish or eliminate competition that would otherwise emerge.").
104. See, e.g., REHFELD, supra note 52, at 177 (endorsing non-territorial districts that each resemble the nation as a whole); Pamela S. Karlan, A Bigger Picture (commenting that since "many citizens' most pressing interests. are not primarily defined by where they live. we probably would pick a different system if we were starting from scratch"), in REFLECTING ALL OF US: THE CASE FOR PROPORTIONAL REPRESENTATION 73, 74-76 ( Joshua Cohen & Joel Rogers eds., 1999).
105. See Gardner, Fixed Election Districts, supra note 27, at 572-73 ("[P]artisan competition and territorial districting. are conflicting and indeed incommensurable principles upon which to base a system of legislative representation."); cf. Michael P. McDonald, Redistricting and Competitive Districts (noting that in Arizona, where competitiveness is a redistricting criterion, competitive districts often can be drawn only by "placing dissimilar communities together"), in THE MARKETPLACE OF DEMOCRACY: ELECTORAL COMPETITION AND AMERICAN POLITICS 222, 239 (Michael P. McDonald & John Samples eds., 2006).
106. See LULAC, 548 U.S. 399, 420 (2006) (opinion of Kennedy, J.) ("The existence or degree of asymmetry may in large part depend on conjecture about where possible vote-switchers will reside."); CAIN, supra note 22, at 75 ("If there are enclaves of homogeneous support for one or the other party, then it will be necessary to distinguish between partisan inefficiency caused by residential segregation and that caused by redistricting per se.").
107. Cf. Jenni Newton-Farrelly, From Gerry-Built to Purpose-Built: Drawing Electoral Boundaries for Unbiased Election Outcomes, 45 REPRESENTATION 471, 476 (2009) (U.K.) (noting that in South Australia, the only jurisdiction in the world with an explicit partisan fairness requirement, "geographic districts. [are] split where required by fairness or equity").
108. Davis v. Bandemer, 478 U.S. 109, 159 (1986) (O'Connor, J., concurring); see also Alfange, supra note 22, at 224 ("Individual [district] elections are often intensely personal matters, turning not in the slightest degree on which party the voter wants to control the legislature. It just cannot be assumed that a vote for a particular candidate in a particular district is a vote for that candidate's party statewide.").
109. Cf. Vieth v. Jubelirer, 541 U.S. 267, 308 (2004) (Kennedy, J., concurring in the judgment) (expressing interest in learning more about "principles of fair districting discussed in the annals of parliamentary or legislative bodies" in order to determine "well-accepted rules of fairness that should govern districting").
110. A.H. BIRCH, REPRESENTATION 27 (1971);
111. see also Baker v. Carr, 369 U.S. 186, 307 (1962) (Frankfurter, J., dissenting) (referring to "the basic English principle of apportioning representatives among the local governmental entities. rather than among units of approximately equal population");
112. GORDON E. BAKER, THE REAPPORTIONMENT REVOLUTION: REPRESENTATION, POLITICAL POWER, AND THE SUPREME COURT 15-16 (1966);
113. JOHN C. COURTNEY, COMMISSIONED RIDINGS: DESIGNING CANADA'S ELECTORAL DISTRICTS 206 (2001)
114. ("[T]he House of Commons was originally the House of Communitates, the counties and boroughs of England."); ROSEMARIE ZAGARRI, THE POLITICS OF SIZE: REPRESENTATION IN THE UNITED STATES, 1776-1850, at 37 (1987)
115. see also Baker, 369 U.S. at 307 (Frankfurter, J., dissenting) (noting that British approach "had early taken root in the colonies");
116. GORDON E. BAKER, RURAL VERSUS URBAN POLITICAL POWER 7 (1955);
117. HOWARD BALL, THE WARREN COURT'S CONCEPTIONS OF DEMOCRACY: AN EVALUATION OF THE SUPREME COURT'S APPORTIONMENT OPINIONS 52 (1971); REHFELD, supra note 52, at 72-77;
118. See ROBERT G. DIXON, JR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS 62-63 (1968) (listing apportionment methods of original thirteen states);
119. ELMER C. GRIFFITH, THE RISE AND DEVELOPMENT OF THE GERRYMANDER 30-31 (1907). For their upper houses, about half the states elected senators from individual counties, while the other half elected them from districts composed of multiple whole counties. See DIXON, supra, at 62; Tucker, supra note 53, at 367-68.
120. See Baker, 369 U.S. at 311 n.85 (Frankfurter, J., dissenting);
121. Gardner, Representation Without Party, supra note 27, at 914-15 ("At no time before the [reapportionment revolution] did state constitutions authorize the creation of. districts that crossed local government boundaries."); Micah Altman, Districting Principles and Democratic Representation 130-32 (Mar. 31, 1998) (unpublished Ph.D. dissertation, California Institute of Technology), available at http://www.box.com/shared/ ng2te8r03xd0y32ab262.
122. See MONMONIER, supra note 61, at 4; Micah Altman, Traditional Districting Principles: Judicial Myths vs. Reality, 22 SOC. SCI. HIST. 159, 168-71 (1998) (analyzing congressional districts' correspondence to political subdivisions throughout U.S. history); Altman, supra note 91, at 150-51, 163 n.112 (same).
123. BAKER, supra note 85, at 27; see also REHFELD, supra note 52, at 57; JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 133 (1989) (arguing that American system of representation was based on "the local necessity, the local advantage, the benefit of local representatives. who knew the electors, their circumstances, needs, and desires"); Gardner, Representation Without Party, supra note 27, at 936, 939 (describing "fixture in American political thought" that "inhabitants of a county or town. comprise a community," which "justif[ies] the constitutional designation of local governments. as the fundamental units of legislative representation").
124. Denney v. State ex rel. Basler, 42 N.E. 929, 937 (Ind. 1896).
125. Brown v. Saunders, 166 S.E. 105, 108 (Va. 1932).
126. State ex rel. Att'y Gen. v. Cunningham, 51 N.W. 724, 730 (Wis. 1892);
127. see also People ex rel. Baird v. Bd. of Supervisors, 33 N.E. 827, 830 (N.Y. 1893) (discussing "certain community of interest among the inhabitants of a county").
128. James A. Gardner, Wandering Lonely as a Cloud: National Citizenship and the Case for Non-Territorial Election Districts, 5 ELECTION L.J. 210, 211 (2006) (reviewing REHFELD, supra note 52)(explaining that 1812 Massachusetts gerrymander was "shocking" because "it conspicuously flouted. county boundaries").
129. Parker v. State ex rel. Powell, 32 N.E. 836, 842 (Ind. 1892);
130. see also Cunningham, 51 N.W. at 730 (ruling district plan invalid in part because of "breaking up of the lines and boundaries of counties by the new assembly districts").
131. See Baker v. Carr, 369 U.S. 186, 187-88, 237 (1962).
132. See Wesberry v. Sanders, 376 U.S. 1, 2-4 (1964).
133. See Reynolds v. Sims, 377 U.S. 533, 568 (1964).
134. See Avery v. Midland Cnty., 390 U.S. 474, 476, 485-86 (1968).
135. See Wells v. Rockefeller, 394 U.S. 542, 546-47 (1969) (invalidating New York congressional plan that tried to "keep regions with distinct interests intact");
136. Kilgarlin v. Hill, 386 U.S. 120, 122-23 (1967) (per curiam) (invalidating Texas congressional plan that "resulted from a bona fide attempt. to respect county boundaries");
137. Davis v. Mann, 377 U.S. 678, 686, 691-93 (1964) (invalidating Virginia congressional plan that followed "tradition of respecting the integrity of the boundaries of cities and counties").
138. Reynolds v. Sims, 377 U.S. 533, 622-23 (1964) (Harlan, J., dissenting) (footnotes omitted) (internal quotation marks omitted);
139. see also Gray v. Sanders, 372 U.S. 368, 384 (1963) (Harlan, J., dissenting) (contending that "[t]he Court's holding surely flies in the face of history");
140. Baker, 369 U.S. at 330 (Harlan, J., dissenting) (discussing "abrupt departure the majority makes from judicial history").
141. Lucas, 377 U.S. at 746, 751 (Stewart, J., dissenting).
142. Id. at 180; see also Bruce E. Cain et al., From Equality to Fairness: The Path of Political Reform Since Baker v. Carr ("The equal population criterion inevitably wreaked havoc on geographic representation since in many instances homogeneous communities of interest had to be split or combined in order to achieve population equality."), in PARTY LINES: COMPETITION, PARTISANSHIP, AND CONGRESSIONAL REDISTRICTING 6, 8 (Thomas E. Mann & Bruce E. Cain eds., 2005);
143. Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL'Y 103, 112 (2000) ("[L]egislators used to be extremely reluctant to violate city, county, and township lines. Now, under 'one person, one vote,' they are required to do so.").
144. Cf., e.g., id. at 1238-43 (failing to consider post-1960s doctrinal history of territorial community); Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 HARV. C.R.-C.L. L. REV. 173, 173-74 (1989) (same); McConnell, supra note 124, at 108, 112 (same);
145. Richard H. Pildes, Formalism and Functionalism in the Constitutional Law of Politics, 35 CONN. L. REV. 1525, 1525 (2003) (same).
146. See NANCY MAVEETY, REPRESENTATION RIGHTS AND THE BURGER YEARS 46 (1991) (describing Abate as "the first Burger decision that is clearly consistent with the conceptualization of territorial representation"); Alfange, supra note 22, at 198 (noting that with Abate "the Court began a retreat from the extreme rigidity of its 1969 position").
147. Mahan v. Howell, 410 U.S. 315, 324-28 (1973). The plan had a maximum deviation of 16.4%. Id. at 319.
148. Id. at 324; see also Voinovich v. Quilter, 507 U.S. 146, 161-62 (1993) (overturning district court's decision to hold Ohio district plan unconstitutional that had substantial population deviations caused by "policy in favor of preserving county boundaries");
149. White v. Regester, 412 U.S. 755, 764 & n.8 (1973) (largely upholding Texas plan with sizeable population variations that were precipitated by "policy against cutting county lines in forming representative districts").
150. Brown v. Thomson, 462 U.S. 835, 843, 848 (1983).
151. Id. at 841 n.5 (quoting Brown v. Thomson, 536 F. Supp. 780, 784 (D. Wyo. 1982), aff'd, 462 U.S. 835);
152. Brown, 462 U.S. at 847. Brown is unusual in that the plaintiffs challenged only the over-representation of a single small county, and not the validity of the district plan as a whole. See id. at 846-47. Had they advanced a broader challenge, they may well have prevailed. See id. at 848-50 (O'Connor, J., concurring). Moreover, the Court has shown no willingness to relax the one-person, one-vote rule for congressional (as opposed to state or local) districting.
153. See, e.g., Karcher v. Daggett, 462 U.S. 725, 727, 744 (1983) (striking down congressional district plan with maximum population deviation of less than one percent).
154. Rogers v. Lodge, 458 U.S. 613, 626-27 (1982).
155. See Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, sec. 3, § 2, 96 Stat. 131, 134 (codified at 42 U.S.C. § 1973 (2006)).
156. Growe v. Emison, 507 U.S. 25, 38-41 (1993).
157. See Bush v. Vera, 517 U.S. 952, 979 (1996) (plurality opinion);
158. Shaw II, 517 U.S. 899, 916-17 (1996).
159. Bush, 517 U.S. at 979;
160. see also Shaw II, 517 U.S. at 916 (holding that district that did not contain geographically compact minority population "could not remedy any potential § 2 violation"). The Court also stated explicitly in Bush that the section 2 compactness inquiry should take into account communal considerations. See 517 U.S. at 977.
161. Cf. Daniel R. Ortiz, Cultural Compactness, 105 MICH. L. REV. FIRST IMPRESSIONS 48, 50 (2006), http://michiganlawreview.org/assets/fi/105/ortiz.pdf;
162. Richard H. Pildes, The Decline of Legally Mandated Minority Representation, 68 OHIO ST. L.J. 1139, 1159 (2007) (noting that in LULAC "[t]he touchstone appears to be the concept of a 'naturally arising' minority district, one that exists or would exist due to the geographic concentration of minority voters whose proximity also reflects common socioeconomic and other interests").
163. Id. at 635; see also Shaw II, 517 U.S. 899, 903, 917-18 (1996).
164. Shaw I, 509 U.S. at 647; see also id. (objecting to districts "in which a State concentrated a dispersed minority").
165. Miller v. Johnson, 515 U.S. 900, 917-20, 922 (1995).
166. Abrams v. Johnson, 521 U.S. 74, 100 (1997).
167. Lawyer v. Dep't of Justice, 521 U.S. 567, 581 (1997) (citations omitted) (internal quotation marks omitted).
168. See Easley v. Cromartie, 532 U.S. 234, 257-58 (2001);
169. Hunt v. Cromartie, 526 U.S. 541, 552-54 (1999).
170. Easley, 532 U.S. at 250 (internal quotation marks omitted);
171. see also Hunt, 526 U.S. at 544 (describing revised district).
172. Vieth v. Jubelirer, 541 U.S. 267, 340 (2004) (Stevens, J., dissenting) (internal quotation marks omitted).
173. LULAC, 548 U.S. 399, 479 (2006) (Stevens, J., concurring in part and dissenting in part). It is clear that Justice Stevens would have invalidated these districts on political gerrymandering grounds, not because of racial vote dilution. See id. at 475.
174. See Stephenson v. Bartlett, 562 S.E.2d 377, 397 (N.C. 2002);
175. Parella v. Montalbano, 899 A.2d 1226, 1255 (R.I. 2006).
176. The seven states with statutory requirements are Idaho, Maine, Oregon, South Dakota, Vermont, Washington, and Wisconsin. The twelve states with similar guidelines are Alabama, Kansas, Kentucky, Maryland, Minnesota, Missouri, Montana, Nebraska, New Mexico, South Carolina, Virginia, and Wyoming. See NAT'L CONFERENCE OF STATE LEGISLATURES, REDISTRICTING LAW 2010, at 172-217 (2009) [hereinafter NCSL GUIDE] (describing redistricting process in each state).
177. In re 2001 Redistricting Cases, 44 P.3d 141, 149-50 (Alaska 2002);
178. Hickel v. Se. Conference, 846 P.2d 38, 44-54 (Alaska 1993);
179. Kenai Peninsula Borough v. State, 743 P.2d 1352, 1359-61 (Alaska 1987);
180. Carpenter v. Hammond, 667 P.2d 1204, 1214-15 (Alaska 1983);
181. Groh v. Egan, 526 P.2d 863, 879-80 (Alaska 1974).
182. Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 121 P.3d 843, 867-70 (Ariz. Ct. App. 2005).
183. In re Reapportionment of Colo. Gen. Assembly, 46 P.3d 1083, 1090-91 (Colo. 2002);
184. In re Reapportionment of Colo. Gen. Assembly, 45 P.3d 1237, 1247-49, 1251-52 (Colo. 2002);
185. In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 213, 215-17 (Colo. 1992);
186. In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 185, 194-200 (Colo. 1992);
187. In re Reapportionment of Colo. Gen. Assembly, 647 P.2d 209, 212-13 (Colo. 1982);
188. In re Reapportionment of Colo. Gen. Assembly, 647 P.2d 191, 194 (Colo. 1982).
189. Bingham Cnty. v. Idaho Comm'n for Reapportionment, 55 P.3d 863, 865-71 (Idaho 2002).
190. Graham v. Thornburgh, 207 F. Supp. 2d 1280, 1294-95 (D. Kan. 2002);
191. In re Petition of Stephan, 836 P.2d 574, 581-83 (Kan. 1992).
192. McBride v. Mahoney, 573 F. Supp. 913, 915-18 (D. Mont. 1983).
193. Stephenson v. Bartlett, 582 S.E.2d 247, 252-54 (N.C. 2003).
194. Hartung v. Bradbury, 33 P.3d 972 (Or. 2001);
195. Ater v. Keisling, 819 P.2d 296, 304-06 (Or. 1991).
196. Parella v. Montalbano, 899 A.2d 1226, 1255-56 (R.I. 2006).
197. In re Reapportionment of Towns of Woodbury & Worcester, 861 A.2d 1117 (Vt. 2004);
198. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 345-46 (Vt. 1993).
199. Both state and federal courts have also drawn districts based in large part on communal considerations. See, e.g., Baumgart v. Wendelberger, Nos. 01-0121, 02-0366, 2002 WL 34127471, at *3, *7 (E.D. Wis. May 30, 2002);
200. Smith v. Clark, 189 F. Supp. 2d 529, 542-46 (S.D. Miss. 2002);
201. Arizonans for Fair Representation v. Symington, 828 F. Supp. 684, 688 (D. Ariz. 1992);
202. Prosser v. Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992);
203. Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630, 636-38 (E.D. Wis. 1982);
204. Carstens v. Lamm, 543 F. Supp. 68, 89-93 (D. Colo. 1982);
205. LaComb v. Growe, 541 F. Supp. 145, 148-50 (D. Minn. 1982);
206. O'Sullivan v. Brier, 540 F. Supp. 1200, 1203-06 (D. Kan. 1982);
207. Egan v. Hammond, 502 P.2d 856, 894, 896 (Alaska 1972);
208. Wilson v. Eu, 823 P.2d 545, 551-53 (Cal. 1992);
209. Legislature of Cal. v. Reinecke, 516 P.2d 6, 10, 16 (Cal. 1973);
210. Beauprez v. Avalos, 42 P.3d 642, 647, 651-52 (Colo. 2002);
211. In re 2003 Apportionment of State Senate, 827 A.2d 844, 847-48 (Me. 2003);
212. Mellow v. Mitchell, 607 A.2d 204, 224 (Pa. 1992).
213. See Hickel v. Se. Conference, 846 P.2d 38, 52-53 (Alaska 1993).
214. See In re Reapportionment of Colo. Gen. Assembly, 647 P.2d 209, 212 (Colo. 1982).
215. See In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 185, 195-96 (Colo. 1992).
216. See Bingham Cnty. v. Idaho Comm'n for Reapportionment, 55 P.3d 863, 869-71 (Idaho 2002). Because the court struck down the entire district plan on one-person, one-vote grounds, its discussion of certain communities' division was technically dicta.
217. See In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 331 (Vt. 1993).
218. See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 12-13 (1991) (summarizing six modalities of constitutional interpretation). The territorial community test is also supported by Bobbitt's structural and prudential modalities of argument. Cf. infra Parts IV-V (discussing test's manageability and political consequences); infra text accompanying note 220 (elaborating on structural value of participatory democracy).
219. see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 116-25 (1980), and Justice Breyer
220. see STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 21-34 (2005). As both a theoretical and an empirical matter, districts that correspond to territorial communities tend to promote democratic participation. See supra note 43 and accompanying text (discussing theoretical reasons why this is so); see also infra subsections V.A.3, V.B.3 (presenting empirical confirmation).
221. Because the territorial community test is not constitutionally compelled, it might be preferable for it to be adopted by legislation or popular initiative rather than by judicial declaration. In addition, even if the test is not embraced as a self-standing bar on gerrymandering, it could be treated as a key component of a broader inquiry. For instance, a district plan's needless disruption of geographic communities is powerful evidence that partisan advantage (or incumbent protection) motivated the line-drawers. Cf. Vieth v. Jubelirer, 541 U.S. 267, 339 (2004) (Stevens, J., dissenting) (advocating partisan intent as standard for identifying unconstitutional gerrymanders).
222. Unsurprisingly, this definition is closely related to the theory of communal representation discussed in Section I.A. See supra notes 36-39 and accompanying text. It is also similar to the definitions advanced by various scholars. See, e.g., Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115, 1127 (1996) (referring to community as "a place with a distinctive history, identifiable characteristics, and a unique identity"); (Pubitemid 126406375)
223. David M. Hummon, Community Attachment: Local Sentiment and Sense of Place (discussing community's "complex sources in both subjectively perceived and objective aspects of the local environment"), in PLACE ATTACHMENT 253, 253 (Irwin Altman & Setha M. Low eds., 1992). It is worth noting as well that territorial communities can shift over time as people's interests and affiliations change. Courts should keep in mind the possibility of such shifts when they seek to ascertain community boundaries. Lastly, it is important to acknowledge that there are inevitably exceptions and outliers in any territorial community. The concept is meant to capture the interests and affiliations of most-not all- people in a geographically defined area. See supra notes 44-45 and accompanying text.
224. See Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); see also supra notes 147-61 and accompanying text.
225. Legislature v. Reinecke, 516 P.2d 6, 16 (Cal. 1973);
226. see also Order Stating Redistricting Principles and Requirements for Plan Submissions at 3, Zachman v. Kiffmeyer, No. C0-01-160 (Minn. Special Redistricting Panel Dec. 11, 2001) (defining communities of interest as "groups of Minnesota citizens with clearly recognizable similarities of social, geographic, political, cultural, ethnic, economic, or other interests").
227. Carstens v. Lamm, 543 F. Supp. 68, 91 (D. Colo. 1982).
228. See In re Legislative Redistricting of State, 475 A.2d 428, 445 (Md. 1982) (characterizing concept of "communit[y] of interest" as "nebulous" and "unworkable"); Gardner, Representation Without Party, supra note 27, at 937-38 (noting that "community of interest" is used "so broadly and indiscriminately as to include virtually any group of people who share some trait or characteristic that has the potential to be salient politically" and "is not linked in any particular way to a specific piece of territory").
229. See GREGORY R. WEIHER, THE FRACTURED METROPOLIS: POLITICAL FRAGMENTATION AND METROPOLITAN SEGREGATION 100-07, 190 (1991);
230. Richard Briffault, Our Localism: Localism and Legal Theory (pt. 2), 90 COLUM. L. REV. 346, 353-54 (1990).
231. DANIEL J. ELAZAR, THE AMERICAN MOSAIC: THE IMPACT OF SPACE, TIME, AND CULTURE ON AMERICAN POLITICS 289 (1994) ("[I]n many cases, the limits of specific civil communities may be less easily discovered within formal political boundaries."); HANSON, supra note 49, at 130 ("[P]olitical subdivisions. are quite likely to fail to reflect. a community of interest.").
232. Cf., e.g., Wilson v. Eu, 823 P.2d 545, 575 (Cal. 1992) (giving "precedence to keeping geographically compact minority groups together rather than maintain[ing] city boundaries").
233. Robert J. Chaskin, Perspectives on Neighborhood and Community: A Review of the Literature, 71 SOC. SERVICE REV. 521, 535 (1997) ("[T]he units in which the circumstances and activities of daily life inhere can be 'nested,' where each member of a community is simultaneously a member of others.").
234. See White v. Weiser, 412 U.S. 783, 793 (1973) (noting that "congressional districts are not so intertwined and freighted with strictly local interests as are state legislative districts");
235. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 345 (Vt. 1993) (observing that it is "difficult, if not impossible, to achieve the same level of common interests among individual towns within Senate districts that is attainable among towns within House districts"). The implication is that legislatures composed of smaller districts (e.g., state houses) would focus on specific localized concerns, while legislatures composed of larger districts (e.g., Congress) would devote more attention to broader and more diffuse issues.
236. See LULAC, 548 U.S. 399, 442 (2006);
237. Shaw I, 509 U.S. 630, 647 (1993).
238. In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 185, 195 (Colo. 1992) (en banc) (criticizing district that combined unconnected counties on opposite sides of Continental Divide).
239. See Lawyer v. Dep't of Justice, 521 U.S. 567, 581 (1997);
240. White v. Regester, 412 U.S. 755, 769-70 (1973). These cases also underscore the distinction between a community of interest and a territorial community. People of the same race are clearly a community of interest, but they are not a territorial community (which may prevail in a section 2 challenge and defeat a racial gerrymandering claim) unless they also live near one another, share non-racial interests, and feel subjectively unified.
241. See Groh v. Egan, 526 P.2d 863, 879 n.65 (Alaska 1974).
242. See Ater v. Keisling, 819 P.2d 296, 303 n.10 (Or. 1991).
243. See Beauprez v. Avalos, 42 P.3d 642, 652 (Colo. 2002).
244. See Legislature of Cal. v. Reinecke, 516 P.2d 6, 29 (Cal. 1973).
245. See Carstens v. Lamm, 543 F. Supp. 68, 93 (D. Colo. 1982);
246. Reinecke, 516 P.2d at 31.
247. See, e.g., Carstens, 543 F. Supp. at 96 (Denver);
248. Groh, 526 P.2d at 879-80 (Anchorage);
249. Wilson v. Eu, 823 P.2d 545, 581, 583, 587, 588 (Cal. 1992) (San Francisco, Sacramento, Los Angeles, and San Diego).
250. See, e.g., Kenai Peninsula Borough v. State, 743 P.2d 1352, 1363 (Alaska 1987);
251. Hartung v. Bradbury, 33 P.3d 972, 982-83 (Or. 2001).
252. See, e.g., In re 2001 Redistricting Cases, 44 P.3d 141, 145 (Alaska 2002);
253. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 340 (Vt. 1993).
254. See, e.g., Kenai, 743 P.2d at 1362-63;
255. In re Reapportionment of Towns of Woodbury & Worcester, 861 A.2d 1117, 1122 (Vt. 2004).
256. See, e.g., Bingham Cnty. v. Idaho Comm'n for Reapportionment, 55 P.3d 863, 870 (Idaho 2002);
257. Hartung, 33 P.3d at 982.
258. See Arizonans for Fair Representation v. Symington, 828 F. Supp. 684, 690 (D. Ariz. 1992);
259. Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 121 P.3d 843, 868, 871 (Ariz. Ct. App. 2005).
260. Carstens v. Lamm, 543 F. Supp. 68, 92 (D. Colo. 1982);
261. see also Carpenter v. Hammond, 667 P.2d 1204, 1215 (Alaska 1983) (invalidating district that combined communities similar in their interests but "completely separate" in their "social activity").
262. Miller v. Johnson, 515 U.S. 900, 908 (1995). According to my survey of the case law, fusion is the kind of community disruption that has most often led state courts to invalidate districts.
263. See LULAC, 548 U.S. at 442;
264. Miller, 515 U.S. at 927;
265. Shaw I, 509 U.S. at 649.
266. 364 U.S. 339, 340 (1960); see also Wright v. Rockefeller, 376 U.S. 52, 59 (1964) (Douglas, J., dissenting) (criticizing "zigzag, tortuous lines [that were] drawn to concentrate Negroes and Puerto Ricans in Manhattan's Eighteenth Congressional District and practically to exclude them from the Seventeenth"). I have not found any state cases invalidating districts because of community subversion.
267. See Bush, 517 U.S. at 976, 983;
268. Gomillion, 364 U.S. at 347-48.
269. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 326 (Vt. 1993).
270. In re Reapportionment of Colo. Gen. Assembly, 647 P.2d 191, 194, 197 (Colo. 1982);
271. see also Graham v. Thornburgh, 207 F. Supp. 2d 1280, 1292 (D. Kan. 2002) (adopting deferential review standard);
272. Carpenter v. Hammond, 667 P.2d 1204, 1214-15 (Alaska 1983) (same);
273. Ater v. Keisling, 819 P.2d 296, 303 (Or. 1991) (same);
274. Parella v. Montalbano, 899 A.2d 1226, 1256 (R.I. 2006) (same).
275. The larger population variances allowed by the Court for state legislative districts would reduce the community disruption caused by the one-person, one-vote rule at this level. See supra subsection II.C.1. The disruption would be greater at the congressional redistricting level, at which essentially no population deviations are permitted. See Karcher v. Daggett, 462 U.S. 725, 732-33 (1983).
276. The disruptive impact of the one-person, one-vote rule could also be reduced through the use of floterial districts. These are districts that overlay (or "float above") multiple conventional districts, providing additional representation to voters whose districts would otherwise be overpopulated. For instance, a community whose population entitles it to 1.5 representatives could be kept intact in a single conventional district with a single representative, while also being included in a larger floterial district that includes other overpopulated conventional districts. See generally Gary F. Moncrief, Floterial Districts, Reapportionment, and the Puzzle of Representation, 14 LEGIS. STUD. Q. 251 (1989).
277. In re 2001 Redististricting Cases, 44 P.3d 141, 145 (Alaska 2002); see also id. (ensuring that each portion of community that was divided between two districts was "integrated, as nearly as practicable, with the district in which it [was] placed").
278. Carstens v. Lamm, 543 F. Supp. 68, 87, 96 (D. Colo. 1982).
279. Id. at 96-97; see also O'Sullivan v. Brier, 540 F. Supp. 1200, 1204 (D. Kan. 1982) (labeling as its "lodestar" the goal of "grouping together. as many major communities. as possible" while still complying with one-person, one-vote rule);
280. Beauprez v. Avalos, 42 P.3d 642, 652 (Colo. 2002) (choosing most logical Colorado west slope counties to merge with Denver suburbs);
281. Ater, 819 P.2d at 303 n.10 (using "best of the available choices" when forced to split an Oregon county);
282. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 336 (Vt. 1993) (noting approvingly that district line that divided Vermont town "was drawn to separate [its] most urban areas from [more rural] neighborhoods");
283. Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (plurality opinion);
284. see also LULAC, 548 U.S. 399, 417-20 (2006) (opinion of Kennedy, J.).
285. See LULAC, 548 U.S. at 417-19 (opinion of Kennedy, J.);
286. Vieth, 541 U.S. at 284-86, 292-95 (plurality opinion); id. at 316 (Kennedy, J., concurring in the judgment) ("[C]ourts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive.").
287. See Vieth, 541 U.S. at 286-90, 296-97, 299-301 (plurality opinion).
288. Brown v. Thomson, 462 U.S. 835, 853 (1983) (Brennan, J., dissenting).
289. See White v. Regester, 412 U.S. 755, 768-70 (1973).
290. See Rogers v. Lodge, 458 U.S. 613, 626-27 (1982).
291. See LULAC, 548 U.S. 399, 435, 438-41 (2006).
292. See Growe v. Emison, 507 U.S. 25, 41-42 (1993).
293. See Abrams v. Johnson, 521 U.S. 74, 91-92 (1997).
294. See Shaw II, 517 U.S. 899, 916-18 (1996).
295. See Bush v. Vera, 517 U.S. 952, 979-81 (1996) (plurality opinion).
296. See LULAC, 548 U.S. at 435, 438-41.
297. See Shaw I, 509 U.S. 630, 647-49 (1993).
298. See Miller v. Johnson, 515 U.S. 900, 908-09, 919-20 (1995).
299. See Bush, 517 U.S. at 966, 971 n.*, 975.
300. See Lawyer v. Dep't of Justice, 521 U.S. 567, 581-83 (1997).
301. See Hunt v. Cromartie, 526 U.S. 541, 544, 553-54 (1999).
302. Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality opinion).
303. Bush, 517 U.S. at 1026 (Stevens, J., dissenting).
304. LULAC, 548 U.S. 399, 504-05 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part).
305. See Carpenter v. Hammond, 667 P.2d 1204 (Alaska 1983) (3-2 majority);
306. In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 185 (Colo. 1992) (one out of seven challenged districts upheld by 4-3 majority);
307. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323 (Vt. 1993) (one out of five challenged districts struck down by 3-2 majority).
308. Cf. Vieth v. Jubelirer, 541 U.S. 267, 280-81 (2004) (plurality opinion) (finding Bandemer standard unmanageable in part because it always resulted in districts being upheld).
309. Hickel v. Se. Conference, 846 P.2d 38, 51 (Alaska 1993).
310. In re Reapportionment of Colo. Gen. Assembly, 647 P.2d 209, 212-13 (Colo. 1982).
311. Stephenson v. Bartlett, 582 S.E.2d 247, 253-54 (N.C. 2003).
312. See, e.g., Hickel, 846 P.2d at 53-54 (noting that district was drawn with "little consideration of the relative socio-economic integration of the people who live there");
313. Carpenter, 667 P.2d at 1215 (pointing out that "record [was] simply devoid of evidence" that communities were related);
314. In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 185, 195-96 (Colo. 1992) (concluding that Colorado Reapportionment Commission could not provide "adequate factual showing" for its districting choices).
315. See, e.g., Hickel, 846 P.2d at 51 (asserting that district plan raised "specter of gerrymandering");
316. In re Reapportionment of Colo. Gen. Assembly, 647 P.2d 209, 213 (Colo. 1982) (noting "partisan political nature of the Commission's action").
317. See, e.g., Kenai Peninsula Borough v. State, 743 P.2d 1352, 1362-63 (Alaska 1987) (upholding district despite constituent areas' "minimal" interaction because of their economic ties, transport links, and shared media outlets);
318. In re Reapportionment of Towns of Woodbury & Worcester, 861 A.2d 1117, 1122 (Vt. 2004) (same where "petitioners' preferences and the bulk of their interests may indeed fall outside their current district" but "findings also include substantial ties" within district).
319. See, e.g., In re Reapportionment of Colo. Gen. Assembly, 828 P.2d at 197;
320. In re Petition of Stephan, 836 P.2d 574, 581-82 (Kan. 1992);
321. Hartung v. Bradbury, 33 P.3d 972, 981-85 (Or. 2001);
322. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 339-45 (Vt. 1993).
323. See Groh v. Egan, 526 P.2d 863, 879-80 (Alaska 1974).
324. See Carpenter v. Hammond, 667 P.2d 1204, 1214 (Alaska 1983).
325. Kenai, 743 P.2d at 1363;
326. Hickel v. Se. Conference, 846 P.2d 38, 46-47 (Alaska 1992);
327. see also In re 2001 Redistricting Cases, 44 P.3d 141, 145 (Alaska 2002)
328. (citing Hickel, 846 P.2d at 51 n.20).
329. See In re Reapportionment of Colo. Gen. Assembly, 828 P.2d 185, 210-11 (Colo. 1992) (Mullarky, J., concurring in part and dissenting in part).
330. In re Reapportionment of Towns of Hartland, Windsor & W. Windsor, 624 A.2d 323, 349 (Vt. 1993) (Dooley, J., concurring and dissenting). It is worth noting that the Vermont statute is more "vague" and "imprecis[e]" than my conception of the territorial community test.
331. See VT. STAT. ANN. tit. 17 § 1903(b)(2) (2002) (requiring districts to be drawn to achieve "recognition and maintenance of patterns of geography, social interaction, trade, political ties and common interests").
332. Cf. Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting in the 2000s, 80 N.C. L. REV. 1517, 1518 (2002) ("Law and social science are perhaps nowhere more mutually dependent than in the voting-rights field.").
333. See DANTE CHINNI & JAMES GIMPEL, OUR PATCHWORK NATION: THE SURPRISING TRUTH ABOUT THE "REAL" AMERICA (2010). In a sequel to this Article, I also attempt to identify communities directly using newly available Census data as well as specialized mapping software. See Stephanopoulos, supra note 32.
334. see also Brian A. Mikelbank, A Typology of U.S. Suburban Places, 15 HOUSING POL'Y DEBATE 935, 961 (2004) (using similar statistical technique to assign U.S. suburbs to ten different categories);
335. Thomas J. Vicino et al., Megalopolis 50 Years On: The Transformation of a City Region, 31 INT'L J. URB. & REGIONAL RES. 344, 361-64 (2007) (assigning Census places in Northeast to five categories).
336. About, COMMONCENSUS MAP PROJECT, http://www.commoncensus.org/about.php (last visited Feb. 15, 2012).
337. See The Maps Page, COMMONCENSUS MAP PROJECT, http://www.commoncensus. org/maps.php (last visited Feb. 15, 2012);
338. see also Matt Chisholm & Ross Cohen, NEIGHBORHOOD PROJECT, http://hood.theory.org (similar San Francisco project) (last visited Feb. 15, 2012);
339. cf. Claudia J. Coulton et al., Mapping Residents' Perceptions of Neighborhood Boundaries: A Methodological Note, 29 AM. J. COMMUNITY PSYCHOL. 371, 371-72 (2001) (discussing pilot study mapping Cleveland neighborhoods by surveying their residents).
340. See FAQ, COMMONCENSUS MAP PROJECT, http://www.commoncensus.org/faq.php (last visited Feb. 15, 2012).
341. See Richard G. Niemi et al., The Effects of Congruity Between Community and District on Salience of U.S. House Candidates, 11 LEGIS. STUD. Q. 187, 198-99 (1986).
342. See Richard N. Engstrom, District Geography and Voters, in REDISTRICTING IN THE NEW MILLENNIUM 65, 74-75 (Peter F. Galderisi ed., 2005);
343. Jonathan Winburn & Michael W. Wagner, Carving Voters Out: Redistricting's Influence on Political Information, Turnout, and Voting Behavior, 63 POL. RES. Q. 373, 375 (2010).
344. Cf. William A. Fischel, Neither "Creatures of the State" nor "Accidents of Geography": The Creation of American Public School Districts in the Twentieth Century, 77 U. CHI. L. REV. 177, 199 (2010).
345. See PAUL GRONKE, THE ELECTORATE, THE CAMPAIGN, AND THE OFFICE: A UNIFIED APPROACH TO SENATE AND HOUSE ELECTIONS 165-69 (2000);
346. C. DANIELLE VINSON, LOCAL MEDIA COVERAGE OF CONGRESS AND ITS MEMBERS: THROUGH LOCAL EYES 25 (2003);
347. James E. Campbell et al., Television Markets and Congressional Elections, 9 LEGIS. STUD. Q. 665, 668-69 (1984);
348. Dena Levy & Peverill Squire, Television Markets and the Competitiveness of U.S. House Elections, 25 LEGIS. STUD. Q. 313, 316 (2000);
349. Daniel Lipinski, The Effect of Messages Communicated by Members of Congress: The Impact of Publicizing Votes, 26 LEGIS. STUD. Q. 81, 88-91 (2001);
350. Timothy S. Prinz, Media Markets and Candidate Awareness in House Elections, 1978-1990, 12 POL. COMM. 305, 307 (1995).
351. See Brian F. Schaffner & Patrick J. Sellers, The Structural Determinants of Local Congressional News Coverage, 20 POL. COMM. 41, 46-47 (2003).
352. See supra subsection II.C.5 and Section IV.C (discussing relevant state case law); see also Jason C. Miller, Community as a Redistricting Principle: Consulting Media Markets in Drawing District Lines, 86 IND. L.J. SUPP. 1, 6 (2010), http://ilj.law.indiana.edu/articles/86/86-JMiller.pdf (arguing that courts should consult media market boundaries when evaluating district plans).
353. See Shaw I, 509 U.S. 630, 657 (1993).
354. Bush v. Vera, 517 U.S. 952, 1045 (1996) (Souter, J., dissenting).
355. see also Easley v. Cromartie, 532 U.S. 234, 257-58 (2001).
356. Cf. Richard L. Hasen, The Benefits of "Judicially Unmanageable" Standards in Election Cases Under the Equal Protection Clause, 80 N.C. L. REV. 1469, 1489, 1503 (2002) (calling for more judicially unmanageable election law standards).
357. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 289 (2004) (plurality opinion); BUCHMAN, supra note 22, at 202; Issacharoff, supra note 5, at 1693;
358. See Michael P. McDonald, Redistricting Institutions and Competition in U.S. House Districts ("It may be that despite these criteria being on the books, there is little enforcement of them."), in DESIGNING DEMOCRATIC GOVERNMENT: MAKING INSTITUTIONS WORK 141, 153 (Margaret Levi et al. eds, 2008).
359. See, e.g., Jason Barabas & Jennifer Jerit, Redistricting Principles and Racial Representation, 4 ST. POL. & POL'Y Q. 415, 422 (2004) (treating states' compactness and subdivision preservation requirements as proxies for actual district compactness and respect for subdivisions); Pildes & Niemi, supra note 13, at 529-31 (same for compactness). It would be even better, of course, to assess the impact of district-community congruence directly rather than through proxies such as state legal provisions. A sequel to this Article attempts such direct assessment. See Stephanopoulos, supra note 32.
360. In a recent article, Adam Cox and Richard Holden argue that the optimal gerrymandering strategy for a party is "to match slices of voters from opposite tails of the [partisan] distribution" such that the party's own die-hard supporters in a district slightly outnumber the opposing party's committed partisans. Adam B. Cox & Richard T. Holden, Reconsidering Racial and Partisan Gerrymandering, 78 U. CHI. L. REV. 553, 567 (2011). This "matching slices" strategy plainly cannot be executed when districts must correspond to geographic communities. A requirement of district-community congruence thus renders unavailable the most potent political gerrymanders.
361. See Andrew Gelman & Gary King, Enhancing Democracy Through Legislative Redistricting, 88 AM. POL. SCI. REV. 541, 544-45 (1994) (defining bias and responsiveness).
362. The aspects for which I controlled were whether a state used a redistricting commission, whether a party had unified control of a state government at the time of redistricting, and whether courts ended up drawing a state's district maps. I coded all of these aspects as dummy variables. I obtained commission data from NCSL GUIDE, supra note 193, at 161-62; data on unified party control from Carl Klarner, Klarner Data, ST. POL. & POL'Y Q. (2007), http://academic.udayton.edu/sppq-TPR/klarner-datapage. html;
363. and data on court-drawn plans from Jonathan Winburn, Comparing Redistricting Outcomes Across the States: A Comparison of Commission, Court, and Legislative Plans 24 tbl.4 (Mar. 3-4, 2006) (unpublished manuscript), available at http://www.kpsaweb.org/Hughes/Winburn.RedistrictingOutcomes.pdf.
364. See United States Census 2000: State Legislative District Summary Files, U.S. CENSUS BUREAU ( Jan. 4, 2007), http://www.census.gov/census2000/sld- sumfiles.html. I did not consider coalition or influence districts because of the fierce ongoing debates over how to identify them and how to evaluate them relative to majority-minority districts.
365. Cf. Bartlett v. Strickland, 129 S. Ct. 1231, 1249 (2009) (holding that only majorityminority districts can ever be required under section 2 of the VRA).
366. Cf. Johnson v. De Grandy, 512 U.S. 997, 1014 (1994) (evaluating minority representation in similar fashion). I do not claim that the gap should necessarily be zero. I only compare states' proportions of majority-minority districts to their minority population percentages so that I can have a benchmark by which to assess those proportions. In addition, my analysis addresses descriptive representation only; it has nothing to say about the caliber of minorities' substantive representation.
367. See Michael McDonald, Voter Turnout, U.S. ELECTIONS PROJECT, http://elections.gmu.edu/voter-turnout.htm (last visited Feb. 15, 2012). I used turnout data for all fifty states, for the highest office on the ballot, and from 2002 to 2008, in my analysis.
368. See Codebook Variable Documentation File, AM. NAT'L ELECTION STUD. 616 (Aug. 25, 2011), http://www.electionstudies.org/studypages/cdf/anes-cdf-var.pdf. Data was available for forty-seven states and for the years 2002, 2004, and 2008.
369. The demographic variables for which I controlled were household income, percent of population over 65, percent of population that is black, percent of population that is Hispanic, and percent of population with a bachelor's degree. I coded them all as continuous variables. I obtained income data from State Median Income, U.S. CENSUS BUREAU, http://www.census.gov/hhes/www/income/ statemedfaminc.html (last modified Nov. 1, 2011);
370. age data from Age Data of the United States, U.S. CENSUS BUREAU, http://www.census.gov/population/www/socdemo/age/age-st-cen.html;
371. race data from Population by Sex, Race, and Hispanic Origin, U.S. CENSUS BUREAU, http://www.census.gov/popest/data/state/asrh/2009/SC-EST2009-03.html (last visited Feb. 15, 2012);
372. And education data from SARAH R. CRISSEY, U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENT IN THE UNITED STATES: 2007 (2009), available at http://www.census. gov/prod/2009pubs/p20-560.pdf. For regression results, see the Appendix.
373. See Roland G. Fryer, Jr. & Richard Holden, Measuring the Compactness of Political Districting Plans ( July 16, 2009) (unpublished manuscript), available at http://www.economics.harvard.edu/faculty/fryer/files/ Compactness%20Final.pdf.
374. See id. at 51 tbl.2. But see Jowei Chen & Jonathan Rodden, Using Legislative Districting Simulations To Measure Electoral Bias in Legislatures 6, 14 ( July 15, 2010) (unpublished manuscript), available at http://www-personal. umich.edu/~jowei/florida.pdf (finding that redrawing Florida districts on basis of compactness would result in significant pro-Republican bias).
375. See MICHAEL P. MCDONALD, MIDWEST MAPPING PROJECT, available at http://elections.gmu.edu/Midwest-Mapping-Project.pdf.
376. See also DOUGLAS JOHNSON, THE ROSE INST. OF STATE & LOCAL GOV'T, COMPETITIVE DISTRICTS IN CALIFORNIA: A CASE STUDY OF CALIFORNIA'S REDISTRICTING IN THE 1990S 7-9 (2005), available at http://www.claremontmckenna.edu/rose/ publications/pdf/rose-ca-case-study.pdf (finding high level of competitiveness when California's districts were drawn in the 1990s to correspond to geographic communities).
377. Edward L. Glaeser & Bryce A. Ward, Myths and Realities of American Political Geography 6 (Harvard Inst. of Econ. Research Discussion Paper No. 2100, Nov. 23, 2005), available at http://www.economics.harvard.edu/pub/hier/ 2006/HIER2100.pdf;
378. see also Philip A. Klinkner, Red and Blue Scare: The Continuing Diversity of the American Electoral Landscape, 2 FORUM, no. 2, 2004, at 1, 7, http://www.bepress.com/forum/vol2/iss2/art2 (finding that "index of exposure" in 2000 was almost identical for Democrats and Republicans, "mean[ing] that the average Democrat and the average Republican lived in a county that was close to evenly divided"); cf. MORRILL, supra note 58, at 21 (noting that compactness requirement would have random partisan effects because both parties' supporters are equally spatially concentrated); Polsby & Popper, supra note 13, at 334-35 (same).
379. JONATHAN WINBURN, THE REALITIES OF REDISTRICTING: FOLLOWING THE RULES AND LIMITING GERRYMANDERING IN STATE LEGISLATIVE REDISTRICTING 9 (2008).
380. see also Carmen Cirincione et al., Assessing South Carolina's 1990s Congressional Districting, 19 POL. GEOGRAPHY 189, 201-02 (2000) (finding that redrawing South Carolina's congressional districts so as to minimize county splits would likely result in one minority- influence district and no majority-minority districts).
381. See W. Mark Crain, The Constitutionality of Race-Conscious Redistricting: An Empirical Analysis, 30 J. LEG. STUD. 193, 207 fig.3 & 208 fig.4 (2001); see also id. at 209-10 (finding strong positive relationship between minority percentage in district and district's proportion of split Census places). (Pubitemid 33647506)
382. see also DAVID E. CAMPBELL, WHY WE VOTE: HOW SCHOOLS AND COMMUNITIES SHAPE OUR CIVIC LIFE 23-24, 42 (2006) (finding that turnout is higher in economically, ethnically, politically, and racially homogeneous communities);
383. Michael S. Kang, Race and Democratic Contestation, 117 YALE L.J. 734, 784-86 (2008) (summarizing political science literature showing that minority turnout is higher in majority-minority districts).