The Rise of the Hal-mander: Is Gerrymandering by Algorithm the Next Frontier of Partisan Gerrymandering?
We cannot automate partisan gerrymandering out of existence, but we might perpetuate it through automation. Every ten years, around the United States, state legislatures and independent commissions draw new districts for congressional and state legislative elections, and many of these mapmakers rely on complex software and computer algorithms. Footnote #1 content: Sam Levine, ‘From Dark Art to Dark Science’: The Evolution of Digital Gerrymandering,G UARDIAN (Aug. 22, 2021, 4:00 AM), https://www.theguardian.com/us-news/2021/aug/22/gerrymandering-us-electoral-districts-congress [https://perma.cc/37FL-VDVN]. A redistricting consultant can use an algorithm to generate thousands of gerrymandered maps that comply with state and federal redistricting requirements. Footnote #2 content: Id. Reformers also craft redistricting proposals through algorithms. Footnote #3 content: See infra Section I.C.2. Like the consultant who generates thousands of gerrymandered maps, a reformer can generate thousands of nongerrymandered Footnote #4 content: It is important to note that these maps are not necessarily objective because algorithms require choices, which have political consequences. See infra Section IV.A.1. maps that comply with state and federal redistricting requirements. Footnote #5 content: See infra Section I.C.2. Whether to gerrymander more efficiently under the cover of a facially neutral algorithm or to prevent gerrymandering by handing control to a facially neutral algorithm, states might consider an automated redistricting process.
One example can be found in North Carolina. North Carolina decided its state legislative districts in 2019 with a nearly automated redistricting process. Footnote #6 content: See Common Cause v. Lewis, No. 18 CVS 014001, 2019 WL 13198027, at *3 (N.C. Super. Ct. Oct. 28, 2019); Miles Parks, A Surprise Vote, Thrown Phone and Partisan ‘Mistrust’ Roil N.C. as Maps Are Redrawn, NPR (Sept. 16, 2019, 5:19 AM),https://www.npr.org/2019/09/16/760177030/a-surprise-vote-thrown-phone-and-partisan-mistrust-roil-n-c-as-maps-are-redrawn [https://perma.cc/7WW9-AZNG]. After a state court ruled that North Carolina’s state senate and house districts were unconstitutional because of partisan bias, the Republican majority had to redraw the districts. Footnote #7 content: Parks, supra note 6; Common Cause v. Lewis, No. 18 CVS 014001, 2019 WL 4569584, at *135–37 (N.C. Super. Ct. Sept. 3, 2019).