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in a genuinely contested general election. No wonder the House is so dysfunctional. Most members don’t have to worry about being reelected. No wonder so many people don’t bother to vote in midterm “elections.” They know almost all of the outcomes in advance.
    Under the current equality-driven constitutional law of democracy, five members of the Supreme Court insist that there is nothing judges can do to prevent politicians from slicing and dicing the electoral map to ensure the reelection of incumbents, moving voters around like pawns on a chessboard to maximize the advantage of the party in power. In order to know whether political line drawing is unconstitutionally unequal, the majority justices argue, you need an objective baseline from which to measure whether the political gerrymander at issue deviates too far from representative fairness. The five Republican justices claim to be unable to find such a baseline.
    The four Democratic justices argue that a fair baseline exists, but they can’t agree on what it is. Several of them argue that a reviewing court could ask whether the statewide outcome of an allegedly gerrymandered legislative election roughly reflects the political preferences of the electorate measured by statewide pre-election party registration figures. If the deviation is too great—say, more than 10 or 15 percent—a court could order that the electoral lines be redrawn to more fairly reflect the political complexion of the electorate. The five Republican justices reject such a test, arguing that pre-election registration figures are an inadequate measurement of a postelection fair political outcome because the very essence of democratic politics is change. Alternatively, the Court could focus on particular districts and ask whether the only plausible explanation for the district’s configuration is an effort to maximize the voting power of supporters of one political party. The Supreme Court majority rejects such a test because, in the Court’s view, politics plays an inevitable and appropriate role in theapportionment process (for example, ensuring minimal representation for long-established interest groups like farmers, industrial laborers, or adherents of a hopelessly outvoted major party), making it impossible to know when politics is exerting too much influence.
    If we change the equality lens, though, and view massive political gerrymandering from the perspective of a democracy-friendly First Amendment, one thing jumps out of the fog of statistics and partisan blather. A successful partisan gerrymander almost always results in the minimization—often the elimination—of contestable legislative elections. 7 No savvy incumbent politician designs a district he can lose. No effective partisan gerrymander results in really close races that the party in power can actually lose. The whole purpose of the gerrymander is to rig the outcome of as many elections as possible by careful line drawing, packing your opponents into a few “landslide districts” where they’ll win a few seats with 80 percent of the vote, but drawing the rest of the lines so that your supporters will win in a series of elections with just over the statistically safe registration edge of 55 percent to 45 percent. The measure of a successful gerrymander is its elimination of contestable elections and its assurance of a steady legislative majority for the party in power.
    Witness what the Republicans have done in North Carolina. In 2012, the popular vote for House members in North Carolina was 51 percent Democratic to 49 percent Republican. But North Carolina’s House delegation is nine Republicans and four Democrats because the Republican legislature drew district lines that packed the Democratic voters into four landslide districts, allowing Republicans to microconstruct nine noncontestable Republican districts. Not a single contestable election takes place in a closely