Faculty Bibliography

The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response to this array of limits, lower courts have recently converged on a two-part test under Section 2 of the Voting Rights Act. This test asks if an electoral practice (1) causes a disparate racial impact; (2) through its interaction with social and historical discrimination. Unfortunately, the apparent judicial consensus is only skin-deep. Courts bitterly disagree as to basic questions like whether the test applies to specific policies or systems of election administration; whether it is violated by all, or only substantial, disparities; and whether disparities refer to citizens’ compliance with a requirement or their turnout at the polls. The test also sits on thin constitutional ice. It comes close to finding fault whenever a measure produces a disparate impact, and so coexists uneasily with Fourteenth Amendment norms about colorblindness and Congress’s remedial authority. The Section 2 status quo, then, is untenable. To fix it, this Article proposes to look beyond election law to the statutes that govern disparate impact liability in employment law, housing law, and other areas. Under these statutes, breaches are not determined using the two-part Section 2 test. Instead, courts employ a burden-shifting framework that first requires the plaintiff to prove that a particular practice causes a significant racial disparity; and then gives the defendant the opportunity to show that the practice is necessary to achieve a substantial interest. This framework, the Article argues, would answer the questions that have vexed courts in Section 2 cases. The framework would also ensure Section 2’s constitutionality by allowing jurisdictions to justify their challenged policies. Accordingly, the solution to Section 2’s woes would not require any leaps of doctrinal innovation. It would only take the unification of disparate impact law.

A generation ago, the Supreme Court upended the voting rights world. In the breakthrough case of Thornburg v. Gingles, the Court held that minority groups that are residentially segregated and electorally polarized are entitled to districts in which they can elect their preferred candidates. But while the legal standard for vote dilution has been clear ever since, the real-world impact of the Court’s decision has remained a mystery. Scholars have failed to answer basic empirical questions about the operation of the Gingles framework. To wit: Did minorities’ descriptive representation improve due to the case? If so, did this improvement come about through the mechanisms — racial segregation and polarization — contemplated by the Court? And is there a tradeoff between minorities’ descriptive and substantive representation, or can both be raised in tandem? In this Article, I tackle these questions using a series of novel datasets. For the first time, I am able to quantify all of Gingles’s elements: racial segregation and polarization, and descriptive and substantive representation. I am also able to track them at the state legislative level, over the entire modern redistricting era, and for black and Hispanic voters. Compared to the cross-sectional congressional studies of black representation that form the bulk of the literature, these features provide far more analytical leverage. I find that the proportion of black legislators in the South rose precipitously after the Court’s intervention. But neither this proportion in the non-South, nor the share of Hispanic legislators nationwide, increased much. I also find that Gingles worked exactly as intended for segregated and polarized black populations. These groups now elect many more of their preferred candidates than they did prior to the decision. But this progress has not materialized for Hispanics, suggesting that their votes often continue to be diluted. Lastly, I find a modest tradeoff between minorities’ descriptive representation and both the share of seats held by Democrats and the liberalism of the median legislator. But this tradeoff disappears when Democrats are responsible for redistricting, and intensifies when Republicans are in charge. In combination, these results provide fodder for both Gingles’s advocates and its critics. More importantly, they mean that the decision’s impact can finally be assessed empirically.

The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could be shaped into a legal test. In this Article, we take the Justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis. Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years — and peaking in the 2012 election — plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several likely will remain extreme for the remainder of the decade, as indicated by our sensitivity testing. Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and eight percent for state house plans, but only if the plans probably will stay unbalanced for the rest of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies, or were inevitable due to the states’ political geography. This approach would neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court’s “unanswerable question” of “how much political...effect is too much.”