In such divided times, we shouldn't be surprised that the Supreme Court embraces passive virtues in order to guard their authority.
The Compactness Solution to Gerrymandering
In my last post, I concluded that Ned Foley’s argument that the original meaning prohibits partisan gerrymandering does not work. This is really very regrettable, since I believe that partisan (and other types of) gerrymandering is extremely problematic. I do have a solution to the problem of gerrymandering, but unfortunately it requires that the legislatures enact it, rather than the court, and the legislatures seem unlikely to adopt it.
To my mind, partisan gerrymandering, like virtually all types of gerrymandering, is an undesirable practice. I believe that elections should be fair and that such gerrymandering interferes without any good justification with the voice of the voters. That both parties have long engaged in such activities does not make this situation any better. While the Constitution’s original meaning unfortunately does not prohibit such gerrymandering, the Constitution allows the political process to eliminate it.
My preferred solution to gerrymandering is to draw legislative districts in the most compact form possible. While there are different measures of compactness, compact districts would not have the ugly and peculiar shapes that current districts have that are drawn to serve the purposes of incumbents and political parties. Instead, they have more ordinary shapes similar to rectangles and circles. It is true that different measures of compactness would have different virtues, but in my view any measure would be better than no compactness requirement.
It is possible that there might not be a single result that turned out to be the most compact, but instead a few different district maps might involve the most compact districts. In that situation, one might have to choose between the maps on some basis – perhaps through chance, such as picking from a hat – but the differences would be unlikely to give significant advantages to one party or another.
One issue involves whether other matters could be considered, such as drawing districts so that they would not be divided by a river or a large highway. I recognize the disadvantages of such divisions, but I think the advantage of having a clear rule of compactness outweighs them. But even if one wanted to take some of these considerations into account, that could be done, allowing those predetermined and clearly defined exceptions, but then insisting that the districts otherwise be as compact as possible.
For congressional elections, this rule could be adopted at the state level (if the states draw the districts) or by Congress (if Congress chooses to adopt the rule for the country). For state legislative districts, the state could adopt the rule.
Unfortunately, the existing legislative incumbents and parties in power do not have an incentive to adopt the compactness rule (even if they agreed with it on policy grounds). But there is a way to lessen their opposition. Congress might adopt the compactness rule with a twenty year delay, so that its effects would be hard to predict. Better yet, a constitutional amendment could be proposed, perhaps with an even longer delay, to constitutionalize the compactness rule. That would be the best way that our Constitution could address this matter.