Mutually Assured Democracy: Cooperating Under the Compact Clause to Combat Partisan Gerrymandering
Partisan gerrymandering distorts voter preferences and undermines electoral competitiveness. Independent redistricting commissions and state constitutional litigation have curtailed partisan gerrymandering, but those reforms have proved unstable and insufficient. Single-state redistricting reform has stalled because legislators and voters alike face diminishing incentives to reallocate power to their state’s minority party as partisan polarization increases. Gerrymandering remains an arms race: one party does it because the other party does it too.
In the congressional redistricting context, however, interstate compacts could replace those incentives to compete with incentives to cooperate. Under a redistricting compact, the reallocation of congressional seats toward party A in state X would not occur without a corresponding reallocation in favor of party B in state Y. This incentivizes cooperation, since many voters would trade their party’s in-state advantage for improved electoral competitiveness if the other party likewise surrendered redistricting advantages in the states they control. Coordination would transform redistricting from zero-sum competition to positive-sum collaboration.
The Constitution’s Compact Clause permits states to collaborate with each other but requires congressional consent. Yet the Constitution remains silent about which interstate agreements trigger this requirement, how Congress may provide consent, and how the Compact Clause interacts with the Elections Clause. This Comment explains how states could form redistricting compacts even without affirmative congressional approval. Courts consistently interpret the Compact Clause functionally rather than formally: compacts that neither expand compacting states’ power against the federal government nor against noncompacting states do not require affirmative congressional approval.
This Comment applies that functionalist doctrine to several types of redistricting compacts, concluding that—even if they count as “compacts” under the Constitution—they would pass muster because they would neither increase the compacting states’ congressional representation nor diminish Congress’s Elections Clause power. The Comment then sensitizes that conclusion to more formalist reinterpretations of the Compact Clause and assesses how redistricting compacts could ensure compacting states’ continued commitment without requiring congressional approval.