Joseph A. Peters · July 2010
78 GEO. WASH. L. REV. 1051 (2010)
Federalist No. 51 could provide some guidance as America heads into the 2010 redistricting cycle. The states will once again draw new maps for electing members of Congress and, without auxiliary precautions, the states will once again fail to control themselves, using those maps to rig elections. And the odds of effective judicial review are lower than ever, because the Supreme Court twice this decade failed to create a workable standard for reviewing political gerrymanders. The time for judicial review has passed. Congress should create an agency to review political gerrymanders, empower that agency to protect democratic structures, and grant it the right to adjudicate disputes over maps. The agency should, in turn, promulgate rules that recognize the irreducible minimum of a meaningful vote: the ability to influence the outcome of an election.
This Essay begins by summarizing the doctrinal difficulties that plague judicial review of partisan gerrymandering. Part I concludes that the Supreme Court was right to abandon judicial remedy and to call on Congress for a solution. Part II sets forth the merits of creating a federal agency that reviews maps and requires maximum competition. Finally, Part III of this Essay addresses counterarguments to a competition-oriented approach.
