Democracy and Distortion

Abstract

This Article contends that judicial supervision of excessive manipulation of electoral lines for partisan purposes - political gerrymandering - may be justified in a mature democracy. The Article responds to the debate among courts and commentators over whether political gerrymandering presents any constitutionally relevant harms and, further, whether courts may be able to resolve the structural issues presented by political gerrymandering claims. Drawing from political theory and political science, this Article develops a theory of institutional distortion and provides a justification for aggressive judicial review of questions of democratic governance. The Article does not argue that the United States Supreme Court should regulate political gerrymandering; instead, it argues that such regulation can be justified. This Article also develops a framework of election law dualism to resolve the structural challenges that political gerrymandering poses to adjudication.