Public Law & Legal Theory
Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this Article, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, which amounts to perhaps the most hyperpartisan era in our country’s history. I then explore how redistricting law has responded to the ebbs and flows of partisanship. In the earlier timeframe, courts (properly) focused on nonpartisan line-drawing problems like rural overrepresentation and racial discrimination. In the hyperpartisan present, on the other hand, courts have (regrettably) refrained from confronting directly the threat, partisan gerrymandering, that now looms above all others. Instead, courts have either shut their eyes to the danger or sought to curb it indirectly through the redeployment of nonpartisan legal theories.
Nicholas O. Stephanopoulos, "The Dance of Partisanship and Districting", Public Law and Legal Theory Working Paper Series, No. 690 (2018).