Partisan gerrymandering has evolved from a sore to a blistering scab on American democracy.  Blatant efforts to manipulate districts whenever necessary and for whatever politically self-serving reason are now part of the partisan toolkit that threatens to further distort and erode American democracy.  The Supreme Court’s refusal to resolve partisan gerrymandering claims, the deepening partisan polarization of American politics, and a president willing to exploit every partisan advantage have opened the door to a new, corrosive phase in American politics.  If left unchecked, there is the possibility that politicians will try to gerrymander districts before every election, rather than after each decennial census, to maintain their party’s and their own hold on power.   

There is no scarcity of proposed solutions to gerrymandering.  The fixes run the gamut from eliminating districts altogether and replacing them with a system of statewide proportional representation to letting a computer draw the lines using human-determined criteria.  Redistricting commissions are the most broadly enacted gerrymandering solution and the one most commonly offered in response to the current redistricting war. 

However, serious questions exist about whether redistricting commissions can survive as long-term fixes to the gerrymandering problem, especially in contexts of deep polarization.  Gridlock and dysfunction plague redistricting commission deliberations, as partisan members of the commissions refuse to compromise with one another.  Nonpartisan commission members have been accused of being closeted partisans, contributing to public distrust in the commission’s work.  Members of gold standard citizen-only redistricting commissions lack the competency to draw districts on their own and are prone to capture by experts who can push a partisan agenda. 

There is an alternative way to check gerrymanders that might not only withstand eras of deep polarization but even prevent them.  Elements of that alternative check can be drawn from the past.  Contrary to the conventional historical story told about unchecked gerrymanders being rampant in the past, some U.S. states successfully policed gerrymanders prior to the Supreme Court’s intervention into districting disputes in the 1960s.

Respect for political subdivision lines has historically acted as a constraint on gerrymandering.  From U.S. independence onward, states drew districts to include the entirety of counties or towns or the entirety of multiple counties and towns (Elbridge Gerry’s famous district, for example, abided by this constraint).  That practice limited the ability of mapmakers to engage in extreme gerrymandering.  Another overlooked feature of past districting practices was that in several states, state constitutions automated the redistricting process by apportioning the number of representatives to each district.  That system maintained the political subdivision integrity of larger population counties by apportioning multiple representatives to them and the political subdivision integrity of smaller counties by forcing them to be combined with each other to secure one representative.  State actors could not redraw districts, they could only apportion representatives according to the constitutional mandate.  The problem, however, was that this apportionment system only loosely accorded with population.  Partisan advantage was therefore advanced through the state constitution’s initial apportionment or the failure of legislatures to reapportion as populations shifted from more ideologically conservative rural areas to more ideologically liberal cities.   

The Supreme Court addressed the problem of malapportionment through a constitutional mandate of equally apportioned districts in Reynolds v. Sims (1964).  No longer would state actors be able to secure partisan advantage through malapportionment.  But at the same time, the Court gave states permission to ignore political subdivision lines. The Reynolds decision thus opened the door to lawmakers’ expanded use of gerrymandering for partisan advantage. 

In the present, there is still a way to counteract both malapportionment and gerrymandering.  Most states still use political subdivision lines as a criterion for drawing districts, but one that is subordinated to population equality.  

A better approach would be to make respect for political subdivision lines the primary mandate and population equality the secondary one.  That fix would then re-impose an automation feature that effectively counteracted gerrymandering in the past while updating it to pay much more heed to population equality.  

Under the political subdivision automation approach, states would be required to draw legislative maps comprised of whole counties and combined whole counties.  Those maps would then have to produce the least possible population deviation between the highest and lowest population districts.  For counties with small populations, contiguous ones would have to be combined in a way that ensures the least possible population deviation between large districts and small districts throughout the state.  For counties with large populations and multiple representatives, states would have two choices.  They could require that multiple representatives be elected on a county-wide basis.  Or alternatively, they could draw district maps according to intra-county political subdivision lines such as cities, metro areas, or wards subject to the mandate of producing a map with the least possible population deviation between the highest and lowest population districts. 

This system should usually produce state legislative maps that accord with the current Supreme Court ten percent limit on deviation between the highest and lowest population districts.  But for congressional district maps, the current permissible population deviation of near zero, as a matter of constitutional doctrine, would have to be modified for the system to satisfy constitutional scrutiny.  Even if the Court did not change its current doctrine, constraints on state legislative district gerrymandering could limit opportunities for congressional district gerrymandering by producing greater partisan balance in the state legislatures responsible for drawing congressional maps.  

The fix I offer is not the first proposal for automated districting.  But it comports better with our history, is more transparent, and is easier for the public to understand than others that have been proposed.  In contexts of widespread misinformation and opportunities for partisan fomenting of distrust, transparency and understandability will be key for sustainability. 

Admittedly, such automation would ignore districting criteria that many, including myself, value, such as competitiveness, respect for communities of interest, partisan symmetry, and even protecting opportunities for racial minorities to elect candidates of choice (a statutory districting criterion the Supreme Court may soon limit or declare unconstitutional).  But incorporating any of these criteria would add discretion to districting that opens pathways for gerrymandering and the democratic distortions and erosions that it brings.  Checking partisan gerrymandering through such automation, therefore, would require sacrifices but they may be worth making.