Faculty Bibliography

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009).

In a series of voting rights cases, the U.S. Supreme Court held that race-based redistricting, particularly the intentional formation of majority–minority districts (districts in which voters of color constitute a majority of eligible voters) may be unconstitutional if race was the predominant factor in the formation of the district. The Court stated that “redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race” may violate the Constitution because of the messages such districts send to the public ( Shaw v. Reno, 1993 ). Yet neither the Court nor social scientists have examined whether the existence of race-conscious majority–minority districts sends messages to voters and what the nature of these messages may be. This research begins to address this scientific issue. In a quantitative content analysis, we examined messages about racial redistricting conveyed to citizens via the print media. Our sample consisted of 355 newspaper articles about redistricting included in the Lexis–Nexis database between 1990 and 2005. We found that newspaper coverage of racial districting contains messages to citizens about the motives involved in redistricting, the individuals and groups who are responsible for it, and its actual and expected effects. This finding is consistent with the Supreme Court's assumption that districts, particularly bizarrely shaped ones, convey distinct messages to voters. The specific messages communicated varied in important ways across the articles. Newspapers in states subject to Section 5 of the Voting Rights Act because of their history of discrimination against voters of color covered racial redistricting differently than states not subject to Section 5. We discuss the legal and theoretical implications of these findings for understanding the role of race in legislative redistricting efforts.

This Article contends that judicial supervision of excessive manipulation of electoral lines for partisan purposes--political gerrymandering--may be justified in a mature democracy. The Article responds to the debate among courts and commentators over whether political gerrymandering presents any constitutionally relevant harms and, further, whether courts may be able to resolve the structural issues presented by political gerrymandering claims. Drawing from political theory and political science, this Article develops a theory of institutional distortion and provides a justification for aggressive judicial review of questions of democratic governance. The Article does not argue that the United States Supreme Court should regulate political gerrymandering; instead, it argues that such regulation can be justified. This Article also develops a framework of election law dualism to resolve the structural challenges that political gerrymandering poses to adjudication.

This Essay examines recent changes of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead to under-enforcement of the Act. Yet Congress chose not to act on those concerns while placing the Department of Justice at the center of its voting rights revolution. By and large, this is the way that the Supreme Court has understood the Department's role. Second, the currently available data do not support the charge that politics has played a central role in the Department's enforcement of its preclearance duties. This conclusion holds true for preclearance decisions up until the Clinton years. The data are ambiguous with respect to the Justice Department of President George W. Bush.

This report summarizes the activities and findings of the National Research Commission on Elections and Voting, organized in October, 2004 by the Social Science Research Council (SSRC) to serve as a scholarly resource for nonpartisan insight into challenges facing the American electoral process.

Election law scholars are currently engaged in a vigorous debate regarding the wisdom of judicial supervision of democratic politics. Ever since the Court's 1962 decision in Baker v. Carr, the Court has increasingly supervised a dizzying array of election-related matters. These include the regulation of political parties, access to electoral ballots, partisanship in electoral institutions, the role of race in the design of electoral structures, campaign financing, and the justifications for limiting the franchise. In particular, and as a consequence of the Court's involvement in the 2000 presidential elections in Bush v. Gore, a central task of election law has been to ascertain the proper limits of judicial review of the electoral process. These events have spurred many scholars to argue that the Court should play a reduced role in supervising the democratic process. Other scholars have countered that judicial supervision of democratic politics is justified in order to safeguard democratic principles. Recently, two important and extremely thoughtful scholars of law and politics have staked opposing positions on this dynamic debate. Professor Richard L. Hasen11 is one of the most accomplished, respected, and prolific scholars of law and politics. He is also one of the leading advocates of the position that courts should be minimally involved in judging politics. In his new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, Professor Hasen offers the first complete account, among contemporary election law scholars, of the purpose and scope of judicial review in democratic politics.

In this Article, the author explores Grutter v. Bollinger from the vantage point of the colorblindness principle. He posits that the Grutter decision is noteworthy for two reasons. First, the Court rejected the argument that the Constitution is colorblind and that classifcations based on race are per se unconstitutional. Second, the Court explicitly recognized that racial categorizations are not all morally equivalent. The author uses classical liberalism as a heuristic for exploring whether the colorblindness argument is necessarily a moral imperative. He ultimately concludes that the Court adopted the correct approach in Grutter in rejecting the allure of the colorblindness principle.

The relationship between black constituency size and congressional support for black interests has two important attributes: magnitude and stability. Although previous research has examined the first characteristic, scant attention has been directed at the second. This article examines the relationship between district racial composition and congressional voting patterns with a particular emphasis on the stability of support across different types of votes and different types of districts. We hypothesize that, among white Democrats, the influence of black constituency size will be less stable in the South, owing in part to this region's more racially divided constituencies. Examining LCCR scores from the 101st through 103rd Congress, we find that this expectation is largely confirmed. We also find that, among Republicans, the impact of black constituency size is most stable—albeit negligible in size—in the South. We conclude by discussing the implications of these findings for the relative merits of “influence districts” and “majority minority” districts.

This Article develops a novel and provocative approach for thinking about the role of race in democratic politics. Professor Charles identifies the Supreme Court's descriptive and normative struggles with racial identity, which have led many on the Court to question the constitutionality of the Voting Rights Act. He relies upon the social identity literature in social psychology, as well as the race and politics literature in political science, to demonstrate empirically the relationship between racial and political identity. He then uses the right of association, particularly as developed by the Supreme Court in the party and ballot access cases, to argue that the First Amendment protects the right of voters of color to associate as voters of color where race and political identity are correlated. In so doing, he characterizes the Court's attempt to grasp the proper role of race in democratic politics as a deeper struggle between equality and liberty values. He concludes by suggesting a framework for balancing liberty and equality concerns in the design of electoral institutions.

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as constitutional pluralism, for thinking about Baker and other cases involving judicial supervision of democratic politics. Using constitutional pluralism as an interpretive tool, he argues that the aim of judicial involvement in democratic politics ought to be vindicate specific demcratic principles. To the extent that the challenged democratic practice serves multiple and legitimate democratic ends, the federal courts should respect the judgmnet of democratic actors.

The problems of public housing--including crime, drugs, and gun violence--have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes that would pass constitutional muster.