Gerrymandered by Definition: The Distortion of “Traditional” Districting Criteria and a Proposal for Their Empirical Redefinition


What are “traditional” districting criteria? The meaning of that term is critical to curbing abusive districting practices because adherence to traditional criteria grants districting plans a prima facie impression of constitutionality and serves as a defense to racial gerrymandering. Yet, the Supreme Court has never intelligibly defined “traditional” criteria or their indicative qualities. Exploiting this silence, various actors are attempting to define that term for their own interests, usually at the expense of the public’s. For example, legislatures pushing redistricting plans that would advantage certain parties or incumbents claim that those districting goals are “traditional”—and thus legally protected—by citing anecdotal examples of a state having used them.

We propose a definition of “traditional” districting criteria that would reduce such abuse and adhere to a widely understood meaning of that word: accepted as standard practice. Under this alternative, which we call the empirical definition, a criterion is “traditional” if a majority of states require or allow it and fewer than a quarter prohibit it in state constitutions, statutes, or legislative guidelines. This definition would not only curb abusive districting but also reduce the influence of undesirable judicial activism by binding judicial discretion to an objectively discernible definition of “traditional” criteria.

2021 Wisconsin Law Review 101-186
Yunsieg P. Kim
Yunsieg P. Kim
Associate Professor of Law