Blog of the International Journal of Constitutional Law

Our Electoral Exceptionalism

Nicholas Stephanopoulos, Assistant Professor, University of Chicago

In all countries that employ single-member districts (or small multimember districts), redistricting is a vital issue.  How districts are drawn influences, among other things, how competitive races will be, how many members of minority groups will be elected, and which party will control a majority in the legislature.  Redistricting is inextricably tied to the allocation of political power in these nations.

Oddly, almost no literature exists on the comparative aspects of district design in either the election law or political science fields.  Election lawyers tend to write about their own countries’ experiences with redistricting, while political scientists usually focus on broader topics such as the choice between proportional representation and plurality-rule voting.  One recent book does present a series of redistricting case studies, but doesn’t seek to classify or assess different countries’ approaches.

In a forthcoming article in the University of Chicago Law Review, I try to fill this gap in the literature.

I first separate district design into its three constituent components:  (1) the institutions involved in the process; (2) the criteria employed to design districts; and (3) the measures taken to promote minority representation.  For each component, I then briefly describe the approaches used in America and abroad, introduce a new conceptual framework for categorizing different policies, and challenge the usual American model—which is an outlier in just about every respect.

Beginning with redistricting institutions, most American states allow the elected branches to draw district lines but then subject their decisions to extensive judicial supervision.  In contrast, almost all foreign countries entrust the task of district design to independent commissions made up of judges, professors, bureaucrats, and the like.  These commissions can often enact their plans without receiving legislative approval, and their output is typically reviewed very deferentially by the courts.

The institutions involved in redistricting can be classified based on their politicization and judicialization.  Historically, most countries’ approaches were highly politicized and not at all judicialized; today, however, only a few relatively authoritarian regimes subscribe to this policy.  The United States is the only democracy that is currently in the high politicization-high judicialization position.  The handful of U.S. states that employ commissions are the only jurisdictions in the low politicization-high judicialization space.  And every other democracy on earth has embraced the low politicization-low judicialization model, with commissions shaping districts under minimal judicial oversight.

The American institutional approach is not only exceptional but also deeply flawed.  According to a growing literature, commissions produce district plans that are less biased, more responsive, and more competitive than those generated by political actors.  Public confidence in the electoral system is also higher when commissions are responsible for redistricting, presumably because the corrosive message associated with gerrymandering is no longer conveyed.  And, under the low politicization-low judicialization model, the courts are able to exit a domain in which their presence is often fraught with controversy.

With respect to the second aspect of district design—redistricting criteria—the United States imposes an extremely strict equal population requirement as well as several race-related rules.  Under the Voting Rights Act (VRA), most notably, majority-minority districts must be drawn in areas where there exist large and concentrated minority populations.  Abroad, in contrast, the equal population mandate is not enforced nearly as rigidly.  But it is supplemented by a host of requirements that relate to jurisdictions’ underlying political geography:  respect for political subdivisions, respect for communities of interest, attention to geographic features, etc.

These criteria can be sorted based on their implications for district composition.  The usual American requirements are diversifying because they tend to make districts more heterogeneous in terms of demography, socioeconomic status, and ideology.  A stringent equal population rule, for example, causes dissimilar places to be combined (or similar places to be divided) in the pursuit of perfect population equality.  Conversely, the typical foreign requirements are homogenizing because they tend to make districts more homogeneous in key respects.  Political subdivisions and communities of interest, for instance, are often characterized by their high levels of internal homogeneity.  It stands to reason that districts will be relatively homogeneous too if they are drawn to correspond to these entities.

American line-drawing criteria are less obviously problematic than American line-drawing institutions, but are still worse than their foreign counterparts.  Homogenizing requirements make aggressive gerrymanders more difficult to execute by rendering unavailable the highly heterogeneous districts that they require.  District homogeneity is also linked to higher voter participation, because the channels of political communication are clearer in districts that are congruent with other important geographic bodies.  And representation is more effective as well in more homogeneous districts, because elected officials are better able to identify and advance their constituents’ interests.

Finally, with respect to minority representation, the United States both requires majority-minority districts to be drawn in certain areas and bars certain jurisdictions (mostly in the South) from reducing their number of minority-controlled districts.  Foreign countries use a variety of techniques to ensure a legislative presence for minority groups.  Some create a separate district map and registration list for minorities (e.g., New Zealand); some reserve particular seats within a unitary electoral system for minorities (e.g., India); some require political parties to nominate a specific number of minority candidates (e.g., Singapore); and some use small multimember districts with limited, cumulative, or preferential voting rules (e.g., Australia).  Other countries, not surprisingly, take no affirmative steps to promote minority representation.

These policies can be categorized based on whether they benefit only concentrated minority groups or also diffuse groups, and whether they allocate legislative seats to the groups explicitly or implicitly.  America’s VRA applies only to dense minority populations and allocates seats to them implicitly.  Reserved seats in particular locations also assist only dense populations but do so overtly.  Parallel electoral systems and party slating requirements are explicit mechanisms that benefit both concentrated and diffuse groups.  And multimember districts with alternative voting rules are the classic example of a policy that implicitly assists all kinds of minority groups.

All of the explicit foreign approaches would likely be unconstitutional in the United States, and can thus be ruled out as plausible options.  But there is much to recommend multimember districts with limited, cumulative, or preferential voting rules.  Their beneficiaries are not limited arbitrarily to concentrated minority populations.  Their implicit allocation of seats is attractive because it reduces the salience of race in the electoral system.  They are linked to higher voter turnout and greater public satisfaction with democracy.  And, perhaps most importantly, they typically produce close to proportional representation for minority groups—a marked improvement over the VRA.

So what is the prognosis for the United States?  Is there any hope that independent commissions might soon take the place of political actors, that homogenizing criteria might supplant diversifying requirements, or that alternative voting systems might displace the usual VRA regime?  In fact, there is reason for optimism on all three fronts.  Several states (including California) have recently embraced commissions.  Several more have enacted new homogenizing criteria.  And dozens of sub-state jurisdictions have switched to multimember districts with alternative voting rules in the past couple decades.  If these trends continue, the days of American electoral exceptionalism may well be numbered.


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