Joseph Fishkin (UCLA Law School) has posted A Narrow Path Out of Gerrymandergeddon, 59 Loyola Law Review (forthcoming 2026) on SSRN. Here is the abstract:
What would it take to end the present downward spiral of partisan gerrymandering in the United States? This essay, a revised and expanded version of a keynote lecture delivered in February 2026, argues that the only possible answer at this point is carefully crafted federal legislation. Such legislation can be enacted only through partisan constitutional hardball—paradoxically in the service of anti-hardball. One party must push through the reforms that would entrench a future political system in which both parties organize their politics around competing on a fair basis for the public’s votes.
The essay develops an account of what such legislation must contain if it is going to do the job—and in particular, how Congress should write it so that it survives inevitably extreme hostility from the Supreme Court, some lower federal courts, and some state legislatures, governors, and state courts. The essay argues that overcoming these barriers is extremely challenging, but that a (narrow) path exists. This path requires, among other things, choosing the goal of fair districts over the alternative goal of proportional representation. It requires policing both the substance and the procedure of map-drawing. The bill must create a system of nonpartisan commissions in each state to draw districts, despite the hostility of some state governments to any such commissions. There are ways to make this work, but they require going many steps beyond existing federal legislative proposals such as the For The People Act and Freedom to Vote Act of 2021–22. The purpose of this essay is to explore in some depth how to write legislation that would actually accomplish the goal. The essay is intended for lawmakers and congressional staff as well as scholars and students.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum