The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting
Corresponding Author
Jordan Carr Peterson
Address correspondence to Jordan Carr Peterson, Texas Christian University, Department of Political Science, TCU Box 297021, Fort Worth, TX 76129, USA. Telephone: (904) 704-3335; Email: jordancarrpeterson@gmail.com.Search for more papers by this authorCorresponding Author
Jordan Carr Peterson
Address correspondence to Jordan Carr Peterson, Texas Christian University, Department of Political Science, TCU Box 297021, Fort Worth, TX 76129, USA. Telephone: (904) 704-3335; Email: jordancarrpeterson@gmail.com.Search for more papers by this authorAbstract
Do judges ruling on redistricting litigation increase electoral competition in congressional races while simultaneously drawing districts favoring their party's congressional candidates? I offer a novel theory of judicial partisan calculation, arguing that judges draw more competitive districts than legislatures or commissions, but that judge-drawn districts favor the electoral interests of their copartisans. These claims are reconcilable because judges target districts held by contrapartisan legislators to maximize their copartisans’ fortunes. I find that Democratic judges draw competitive districts by adding Democratic voters to Republican-held House constituencies. Court-administered redistricting increases competitiveness, ostensibly due to judicial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.
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References
- Abramowitz, Alan, Brad Alexander, and Matthew Gunning. 2006a. “Don't Blame Redistricting for Uncompetitive Elections.” PS: Political Science & Politics 39 (1): 87–90.
- Abramowitz, Alan, Brad Alexander, and Matthew Gunning. 2006b. “Incumbency, Redistricting, and the Decline of Competition in U.S. House Elections.” Journal of Politics 68 (1): 75–88.
- Ansolabehere, Stephen, and James Snyder. 2008. The End of Inequality: One Person, One Vote and the Transformation of American Politics. New York: W. W. Norton.
- Balkin, Jack. 2001. “Bush v. Gore and the Boundary between Law and Politics.” Yale Law Journal 110 (8): 1407–58.
- Balkin, Jack, and Sanford Levinson. 2001. “Understanding the Constitutional Revolution.” Virginia Law Review 87 (6): 1045–104.
- Binder, Sarah, and Forrest Maltzman. 2002. “Senatorial Delay in Confirming Federal Judges, 1947–1998.” American Journal of Political Science 46 (1): 190–99.
- Bonneau, Chris, and Melinda Gann Hall. 2009. In Defense of Judicial Elections. New York: Routledge.
10.4324/9780203876992 Google Scholar
- Braman, Eileen. 2009. Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning. Charlottesville: University of Virginia Press.
- Brunell, Thomas, and Justin Buchler. 2009. “Ideological Representation and Competitive Congressional Elections.” Electoral Studies 28 (3): 448–57.
- Buchman, Jeremy. 2003. Drawing Lines in Quicksand—Courts, Legislatures, and Redistricting. New York: Peter Lang.
- Bullock, Charles. 2010. Redistricting: The Most Political Activity in America. Lanham, MD: Rowman & Littlefield.
- Butler, David, and Bruce Cain. 1992. Congressional Redistricting: Comparative and Theoretical Perspectives. New York: Macmillan.
- Cain, Bruce. 1985. “Assessing the Partisan Effects of Redistricting.” American Political Science Review 79 (2): 320–33.
- Canes-Wrone, Brandice, and Tom Clark. 2009. “Judicial Independence and Nonpartisan Elections.” Wisconsin Law Review 2009 (1): 21–65.
- Carson, Jamie, and Michael Crespin. 2004. “The Effect of State Redistricting Methods on Competition in United States House of Representatives Races.” State Politics and Politics Quarterly 4 (4): 455–69.
10.1177/153244000400400406 Google Scholar
- Carson, Jamie, Michael Crespin, and Ryan Williamson. 2014. “Reevaluating the Effects of Redistricting on Electoral Competition, 1972–2012.” State Politics & Policy Quarterly 14 (2): 165–77.
- Corley, Pamela. 2006. “Avoiding Advice and Consent: Recess Appointments and Presidential Power.” Presidential Studies Quarterly 36 (4): 670–80.
10.1111/j.1741-5705.2006.02573.x Google Scholar
- Cottrill, James. 2012. “The Effects of Non-legislative Redistricting on Competition in Congressional Elections.” Polity 44 (1): 32–50.
- Cottrill, James, and Terri Peretti. 2013. “Gerrymandering from the Bench? The Electoral Consequences of Judicial Redistricting.” Election Law Journal 12 (3): 261–76.
10.1089/elj.2012.0176 Google Scholar
- Cover, Albert. 1977. “One Good Term Deserves Another: The Advantage of Incumbency in Congressional Elections.” American Journal of Political Science 21 (3): 523–41.
- Cox, Adam, and Thomas Miles. 2008. “Judging the Voting Rights Act.” Columbia Law Review 108 (1): 1–54.
- Cox, Gary, and Jonathan Katz. 1996. “Why Did the Incumbency Advantage in U.S. House Elections Grow?” American Journal of Political Science 40 (2): 478–97.
- Cox, Gary, and Jonathan Katz. 2002. Elbridge Gerry's Salamander: The Electoral Consequences of the Reapportionment Revolution. New York: Cambridge University Press.
10.1017/CBO9780511606212 Google Scholar
- Dahl, Robert. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law 6: 279–95.
- Dworkin, Ronald. 1996. Freedom's Law. Cambridge: Harvard University Press.
- Epstein, Lee, and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press.
- Engstrom, Erik. 2006. “Stacking the States, Stacking the House: The Partisan Consequences of Congressional Redistricting in the 19th Century.” American Political Science Review 100 (3): 419–27.
- Erikson, Robert. 1972. “Malapportionment, Gerrymandering, and Party Fortunes in Congressional Elections.” American Political Science Review 66 (4): 1234–45.
- Ferejohn, John. 1977. “On the Decline of Competition in Congressional Elections.” American Political Science Review 71 (1): 166–76.
- Ferejohn, John. 1999. “Independent Judges, Dependent Judiciary: Explaining Judicial Independence.” Southern California Law Review 72 (2/3): 353–84.
- Gillman, Howard. 2001. The Votes That Counted: How the Supreme Court Decided the 2000 Presidential Election. Chicago: University of Chicago Press.
- Gillman, Howard. 2002. “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891.” American Political Science Review 96 (3): 511–24.
- Gillman, Howard. 2006. “Regime Politics, Jurisprudential Regimes, and Unenumerated Rights.” Journal of Constitutional Law 9 (1): 107–19.
- Graves, Scott, Robert Howard, and Pamela Corley. 2014. “Judicial Independence: Evidence from a Natural Experiment.” Law & Policy 36 (1): 68–90.
- Grose, Christian. 2011. Congress in Black and White: Race and Representation in Washington and at Home. New York: Cambridge University Press.
10.1017/CBO9780511976827 Google Scholar
- Grose, Christian, and Bruce Oppenheimer. 2007. “The Iraq War, Partisanship, and Candidate Attributes: Variation in Partisan Swing in the 2006 U.S. House Elections.” Legislative Studies Quarterly 32 (4): 531–57.
- Hall, Matthew. 2012. “Rethinking Regime Politics.” Law & Social Inquiry 37 (4): 878–907.
- Hall, Melinda Gann. 1987. “Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study.” Journal of Politics 49 (4): 1117–24.
- Hirsch, Sam. 2003. “The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting.” Election Law Journal 2 (2): 179–216.
10.1089/153312903321578188 Google Scholar
- Jacobson, Gary. 1987. “The Marginals Never Vanished: Incumbency and Competition in Elections to the U.S. House of Representatives, 1952–82.” American Journal of Political Science 31 (1): 126–41.
- Jacobson, Gary. 1989. “Strategic Politicians and the Dynamics of U.S. House Elections, 1946–1986.” American Political Science Review 83 (3): 773–93.
- Kahan, Dan. 2009. “‘Ideology in’ or ‘Cultural Cognition of’ Judging: What Difference Does It Make?” Marquette Law Review 92 (3): 413–22.
- Kang, Michael, and Joanna Shepherd. 2016. “The Long Shadow of Bush v. Gore: Judicial Partisanship in Election Cases.” Stanford Law Review 68 (6): 1411–52.
- Kopko, Kyle. 2008. “Partisanship Suppressed: Judicial Decision-Making in Ralph Nader's 2004 Ballot Access Litigation.” Election Law Journal 7 (4): 301–24.
10.1089/elj.2008.0002 Google Scholar
- Kopko, Kyle. 2015. “Litigant Partisan Identity and Challenges to Campaign Finance Policies: An Examination of U.S. District Court Decisions, 1971–2007.” Justice System Journal 36 (3): 212–32.
- Kousser, J. Morgan. 1996. “Estimating the Partisan Consequences of Redistricting Plans—Simply.” Legislative Studies Quarterly 21 (4): 521–41.
- Levitt, Justin, and Michael McDonald. 2007. “Taking the ‘Re’ out of Redistricting: State Constitutional Provisions on Redistricting Timing.” Georgetown Law Journal 95 (4): 1247–85.
- Lindgren, Eric, and Priscilla Southwell. 2013. “The Effect of Redistricting Commissions on Electoral Competitiveness in U.S. House Elections.” Journal of Politics and Law 6 (2): 13–18.
10.5539/jpl.v6n2p13 Google Scholar
- Lloyd, Randall. 1995. “Separating Partisanship from Party in Judicial Research: Reapportionment in the U.S. District Courts.” American Political Science Review 89 (2): 413–20.
- McCloskey, Robert. 1960. The American Supreme Court. Chicago: University of Chicago Press.
- McKee, Seth. 2013. “Political Conditions and the Electoral Effects of Redistricting.” American Politics Research 41 (4): 623–50.
- McKenzie, Mark. 2012. “The Influence of Partisanship, Ideology, and the Law on Redistricting Decisions in the Federal Courts.” Political Research Quarterly 65 (4): 799–813.
- Murphy, Chad, and Antoine Yashinaka. 2009. “Are Mapmakers Able to Target and Protect Congressional Incumbents? The Institutional Dynamics of Electoral Competition.” American Politics Research 37 (6): 955–82.
- Peretti, Terri. 2016. “Judicial Partisanship in Voter Identification Litigation.” Election Law Journal 15 (3): 214–31.
- Segal, Jeffrey, and Harold Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.
10.1017/CBO9780511615696 Google Scholar
- Silverstein, Gordon. 2009. Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics. Cambridge: Cambridge University Press.
- Stephanopoulos, Nicholas, and Eric McGhee. 2015. “Partisan Gerrymandering and the Efficiency Gap.” Chicago Law Review 82 (2): 831–900.
- Sulzberger, A. G. 2010. “Ouster of Iowa Judges Sends Signals to Bench.” New York Times, November 3, 2010.
- Van Dunk, Emily. 1997. “Challenger Quality in State Legislative Elections.” Political Research Quarterly 50 (4): 793–807.
- Windett, Jason, Jeffrey Harden, and Matthew Hall. 2015. “Estimating Dynamic Ideal Points for State Supreme Courts.” Political Analysis 23 (3): 461–69.
- Yoshinaka, Antoine, and Chad Murphy. 2009. “Partisan Gerrymandering and Population Instability: Completing the Redistricting Puzzle.” Political Geography 28 (8): 451–62.
- Yoshinaka, Antoine, and Chad Murphy. 2011. “The Paradox of Redistricting: How Partisan Mapmakers Foster Competition but Disrupt Representation.” Political Research Quarterly 64 (2): 435–47.
- Yung, Corey Rayburn. 2012. “Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts.” George Washington Law Review 80 (2): 505–67.
Cases Cited
- Baker v. Carr, 369 U.S. 186 (1962).
- Reynolds v. Sims, 377 U.S. 533 (1964).
Statutes Cited
- Voting Rights Act. Pub. L. No. 89-110, 79 Stat. 437 (1965).