Judge Lynn Adelman has posted this draft on SSRN (forthcoming University of Memphis Law Review). Here is the abstract:
In this paper, to be presented at an election law forum sponsored by the Memphis Law Review and published in a forthcoming issue of the Memphis Law Review, I argue that the law and practice of redistricting should address the question of political fairness. I base my argument on the history of redistricting in Wisconsin which I discuss at some length. Although under the Wisconsin Constitution redistricting is a legislative responsibility, in every Wisconsin redistricting since the 1950s lawsuits were started and courts became involved. Moreover, all of the maps drawn by courts, one by the Wisconsin Supreme Court and three by three-judge federal courts, were politically unfair. This was true whether or not the courts that drew the maps chose to ignore or consider political factors. The fact is, from a political standpoint, none of the courts knew what they were doing.
I contend that state legislatures should establish a standard of political fairness with which redistricting plans must comply. In the absence of such legislation, entities that engage in redistricting, such as courts or commissions, should on their own initiative endeavor to create politically fair plans and utilize all available tools including modern computer technology to assist them. A politically fair plan is one that reflects the political complexion of the state. In other words, the composition of legislative districts should be based on the preference of the state’s voters. Thus, if a state is 53 percent Republican, then 53 percent of its legislative districts should at least lean Republican, and if a state is 51 percent Democratic, then 51 percent of the state’s legislative districts should at least lean Democratic.
In order to determine the political make up of a state, it is essential to rely on a sufficient number of elections held over a sufficient period of time and to avoid elections that are overly determined by candidate specific factors. Thus, a redistricting entity should calculate the percentage of votes received by candidates of both major parties in the five preceding presidential or gubernational elections and average them. This will create an accurate political profile of the state. This process will enable the redistricting entity to establish a standard of political fairness that will govern drawing the map. Under the standard, each party is entitled to a percentage of legislative districts equal to the average percentage of votes it received in the five elections.
"A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin Supreme Court in its 1960 opinion resolving Hixon v. PSC and buttressing The Public Trust Doctrine, Article IX of the Wisconsin State Constitution.