Faculty Bibliography

Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept -- “spatial diversity” -- that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most poor people live in another. But the district is spatially homogeneous if both rich and poor people are evenly dispersed throughout its territory. Spatial diversity matters, at least in the electoral realm, because it is linked to a number of democratic pathologies. Both in theory and empirically, voters are less engaged in the political process, and elected officials provide inferior representation, in districts that vary geographically along dimensions such as wealth and race. Spatial diversity also seems to animate much of the Court’s redistricting case law. It is only spatially diverse districts that have been condemned (mostly in dissents) as political gerrymanders. Similarly, it is the spatial heterogeneity of the relevant minority population that best explains why some majority-minority districts are upheld by the Court while others are struck down. After exploring the theoretical and doctrinal sides of spatial diversity, the Article aims to quantify (and to map) the concept. Using newly available American Community Survey data as well as a statistical technique known as factor analysis, the Article provides spatial diversity scores for all current Congressional districts. These scores are then used: (1) to identify egregious political gerrymanders; (2) to predict which majority-minority districts might be vulnerable to statutory or constitutional attack; (3) to evaluate the Court’s recent claims about various districts and statewide plans; and (4) to confirm that spatial diversity in fact impairs participation and representation. That spatial diversity can be measured, mapped, and applied in this manner underscores the concept’s utility.

The redistricting initiatives that California’s voters approved in 2008 and 2010 are unique in how highly they prioritize the preservation of geographic communities of interest. Yet scholars have not investigated how closely the state’s new districts — drawn by a citizen commission rather than the legislature — correspond to such communities. Nor do earlier studies of this sort exist for any other jurisdictions. This paper seeks to fill this gap in the literature. It begins by introducing a new technique for determining the level of congruence between districts and communities. The crux of the approach is to calculate how heterogeneous districts’ constituent Census tracts are, with respect to the factors that shape people’s residential patterns. These factors are derived from two sources: demographic and socioeconomic data from the Census Bureau, and election results from California’s popular initiatives. The more heterogeneous districts’ tracts are, the less closely they tend to correspond to communities, and vice versa. The paper’s principal finding is that California’s new Assembly, Senate, and Congressional districts are somewhat more congruent with geographic communities than their predecessors. Their average levels of congruence are higher. They contain fewer districts with extremely low congruence scores. And, at the Congressional level, they rank in the middle of the pack in adjusted congruence instead of almost last in the country. The paper complements these results with a series of vignettes that illustrate some of the decisions, both good and bad, that account for the new districts’ boundaries. Using maps of districts and their constituent tracts, it explains how the commission succeeded in raising the level of district-community congruence in some areas - and why it failed to do so in others.

As the next redistricting cycle begins, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional - but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to organic geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they unnecessarily disrupt them. This approach, which I call the “territorial community test,” has a robust theoretical pedigree. In fact, the proposition that communities develop geographically and require legislative representation has won wide acceptance for most of American history. The courts have also employed variants of the test (without scholars previously having noticed) in several related fields: reapportionment, racial gerrymandering, racial vote dilution, etc. The principle of district-community congruence thus animates much of the relevant case law already. The test is largely unscathed, furthermore, by the unmanageability critique that has doomed every other potential redistricting standard. The courts have shown for decades that they can compare district and community boundaries, and the social science literature confirms the feasibility of such comparisons. Finally, the political implications of the test’s adoption would likely be positive. My empirical analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participation would rise. It is true that the territorial community test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinal dead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart.