Gerrymandering and Political Cartels

As redistricting reaches its decennial peak, and as courts await the next round of redistricting litigation, it is worthwhile revisiting some of the fundamental tenets of the law governing gerrymandering. This article asks three interrelated questions. First, beginning with the apparent collapse of any effort to control partisan gerrymandering, the article inquires as to the different treatment given to geographic carve-ups of territory between competing political parties and the condemnation that would ensue if market rivals were to attempt to divide their respective zones of influence so as to preserve market share. The second part of the argument shows that this results from the Supreme Court having fastened on limited doctrines of individual rights and non-discrimination in the political arena, while allowing product markets to be governed by notions of consumer welfare and the preservation of competition. The article then concludes with a proposal to remove from insider political operatives the power to redistrict in order to promote a more competitive political process. The result of this approach would be to render suspect all purposeful districting, thereby taking the pressure off of the vulnerable category of race. The aim is both to restore competition to the political process and to show a possible way out of the post-Shaw v. Reno morass.