In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders

Abstract

Responding to Samuel Issacharoff's forthcoming article, Gerrymandering and Political Cartels, this article argues against judicial intervention in the redistricting process to prevent incumbent-protecting gerrymanders. The first half of the article presents empirical research that demonstrates a high rate of turnover in state legislatures and in the U.S. House of Representatives, frequent changes in partisan control of state legislative chambers, a surprisingly high number of congressional districts that are competitive in presidential elections, and similar rates of incumbent reelection in the U.S. House and U.S. Senate. The data suggest that, whatever the harms of incumbent-protecting gerrymanders, legislative entrenchment is not one of them. The article then considers the benefits of incumbent protection for values of representation and governance. Finally, in analyzing the redistricting commissions currently in existence, the article suggests that nonpartisan redistricting would be nearly impossible to institutionalize even if it were desirable in theory.