Lisa Marshall Manheim, Redistricting Litigation and the Delegation of Democratic Design, 93 Boston U. L. Rev. 563 (2013), https://digitalcommons.law.uw.edu/faculty-articles/183
Boston University Law Review
This Article seeks to reveal how the practice of litigating as redistricting, which has evolved into a form of litigation highly susceptible to procedural manipulation, has created a type of redistricting that grants profound power to those who choose to litigate. In so doing, this Article rejects any understanding of the redistricting process that understands the influence of litigants to be somehow negated or neutralized by the involvement of courts. It recognizes, moreover, that many of the defining features of redistricting litigation–which are, in certain respects, analogous to those characterizing other problematic forms of litigation–nevertheless reflect some of the most startling effects of applying the trans-substantive norm of civil procedure to extraordinary causes of action.
These effects stem in part from what is at stake. Redistricting through litigation has far-reaching and even multiplied effects on the public interest, as challenges to state-imposed redistricting regimes affect the composition of the legislatures that enact future statutes. Moreover, these effects are neither rare nor random, arising at unpredictable times in an unpredictable fashion.
Redistricting litigation instead occurs with clocklike regularity every redistricting cycle, with jurisdictions across the country relying on this form of litigation to ensure legality and simply when necessary to overcome legislative deadlock. In other words, the effects of redistricting litigation are profound–and predictably so.
In exploring the implications of these observations, this Article initiates the project of subjecting litigant participation in redistricting to the scrutiny it warrants. Part I begins with an introduction of redistricting litigants. It identifies several traits that best characterize these actors, a group whose composition is heterogeneous, ad hoc, and largely self-selected. It situates these actors as critical participants in the redistricting process but as virtual non-entities in the existing literature. After identifying the stakes implicated by this unusual combination, Part I confirms that litigant participation will become no less critical to the redistricting process in the foreseeable future. The delegation of authority to litigants instead promises to remain as central to the redistricting process as it has been for now half a century.
Part II reveals the consequences. It demonstrates how the delegation of authority operates through a form of litigation subject to significant control by litigants. At the outset, redistricting through litigation offers a flexible and forgiving regime to those electing to litigate, with a standing doctrine able to accommodate anyone–that is, anyone of sufficient resources and adequate motivation–wishing to participate in the redistricting process; a venue regime that provides extraordinary rewards for parties trying to secure a preferred judge; and flexibility in claim selection that permits litigants to set the courts’ agendas in powerful and consequential ways.
Yet at the same time redistricting litigation is so hospitable to litigants, it offers remarkably few protections to non-litigants. A striking example of aggregative litigation packaged as an individual lawsuit, redistricting litigation seems like the sort that should be subjected to class-action-style protections. But it is not. Compounding this neglect of non-parties is a shifting regime of legal standards that courts have developed in response to the exigencies of the election cycle.
This unusual compression of civil procedure gives litigants significant control over several fundamental aspects of the process, including the balance of power among redistricting agents, the standards for relief, and the timing of court-imposed remedies. Combined, these features produce a procedural regime ripe for manipulation by litigants. This, in turn, produces an unexpected form of redistricting–one that grants sweeping power to actors who are not representative of the general electorate and that requires them to exercise power through opaque and indirect means. These features reflect a redistricting regime developed not through deliberate effort, but rather through the accidental effects of judicial intervention. It reveals a startling model of democratic design. Such a regime raises normative concerns.
Part III identifies the questions that litigant participation raises with respect to fundamental qualities of the redistricting process, including its outcomes, efficiency, and legitimacy. These concerns urge a more thoughtful delegation of democratic design. To this end, the Article discusses potential reforms that may help to advance two general goals: improved representativeness and reduced opportunity for procedural manipulation by litigants. At the forefront of these proposals are institutional adjustments meant to reduce reliance on litigants and procedural changes meant to give greater voice to non-parties. These discussions, which come fifty years after the Supreme Court first transformed litigants into agents of redistricting, are long overdue.