De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform

Michael S. Kang, De-Rigging Elections: Direct Democracy and the Future of Redistricting Reform, 84 Wash. U. L. Rev. 667 (2006).

Abstract:  Alarmed critics of partisan gerrymandering look to apolitical institutions as possible sources of restraint on gerrymandering – namely courts and independent commissions. They are driven by a conviction that we cannot leave the regulation of politics to politics. However, delegation of redistricting to politically insulated institutions comes with heavy costs. Insulation helps ensure that redistricting is not driven by political self-interest, but it also ensures that redistricting is far removed from the necessary degree of public engagement, scrutiny, and accountability.

The Article acknowledges the need for redistricting reform but challenges the impulse to retreat from the political process and re-orients reform back toward proper recognition of legitimate decisionmaking through a political process. Rather than trying to stamp out politics, redistricting reform must seek a new and healthier framework in which redistricting can be conducted as part of an open political process. Redistricting implicates central normative questions of governance that require democratic input and civic debate on contestable value judgments that a democracy must make democratically.

Direct democracy offers a viable third way, between skeptics who would leave redistricting completely to the legislature despite the costs, and reformers who would sequester redistricting completely from the political process. The Article proposes direct democracy as a distinctly political solution to the problems of contemporary gerrymandering. By requiring direct democratic approval by the general electorate for passage of any statewide redistricting plan, direct democracy institutionalizes public oversight and invites the public into civic engagement about the fundamental issues of democratic governance that a democracy ought to embrace. The Article describes how a basic requirement of direct democratic approval would moderate partisan gerrymandering, induce the major parties to compete for public approval, and draw the public into a healthier political process of redistricting.

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