Faculty Bibliography

Eliminating the line could help ensure that voters, not party insiders, have the final say.

Instant-runoff voting (IRV) is having a moment. More than a dozen American localities have adopted it over the last few years. So have two states. Up to four more states may vote on switching to IRV in the 2024 election. In light of this momentum, it’s imperative to know how well IRV performs in practice. In particular, how often does IRV elect the candidate whom a majority of voters prefer over every other candidate in a head-to-head matchup, that is, the Condorcet winner? To answer this question, this article both surveys the existing literature on American IRV elections and analyzes a new dataset of almost two hundred foreign IRV races. Both approaches lead to the same conclusion: In actual elections—as opposed to in arithmetical examples or in simulated races—IRV almost always elects the Condorcet winner. What’s more, a Condorcet winner almost always exists. These findings help allay the concern that candidates lacking majority support frequently prevail under IRV. The results also reveal an electorate more rational than many might think: voters whose preferences among candidates are, at least, coherent in virtually all cases.

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance.

It’s well-known that the federal Voting Rights Act is reeling. The Supreme Court nullified one of its two central provisions in 2013. The Court has also repeatedly weakened the bite of the statute’s other key section. Less familiar, though, is the recent rise of state voting rights acts (SVRAs): state-level enactments that provide more protection against racial discrimination in voting than does federal law. Eight states have passed SVRAs so far—five since 2018. Several more states are currently drafting SVRAs. Yet even though these measures are the most promising development in the voting rights field in decades, they have attracted little scholarly attention. They have been the subject of only a handful of political science studies and no sustained legal analysis at all. In this Article, then, we provide the first descriptive, constitutional, and policy assessment of SVRAs. We first taxonomize SVRAs. That is, we catalogue how they diverge from, and build on, federal protections against racial vote denial, racial vote dilution, and retrogression. Second, we show that SVRAs are constitutional in that they don’t violate any branch of equal protection doctrine. They don’t constitute (or compel) racial gerrymandering, nor do they classify individuals on the basis of race, nor are they motivated by invidious racial purposes. Finally, while existing SVRAs are quite potent, we present an array of proposals that would make them even sharper swords against racial discrimination in voting. One suggestion is for SVRAs simply to mandate that localities switch to less discriminatory electoral laws—not to rely on costly, time-consuming, piecemeal litigation. Another idea is for SVRAs to allow each plaintiff to specify the benchmark relative to which racial vote dilution should be measured—not to stay mute on the critical issue of baselines.

This chapter addresses the law and academic literature about partisan gerrymandering: crafting districts with the intent and effect of benefiting the line-drawing party. With respect to the law, the chapter covers the depressing arc of federal anti-gerrymandering legislation as well as the somewhat more encouraging record of state constitutional litigation. The chapter further discusses enacted state and proposed federal redistricting reforms, in particular, requirements that districts be designed by independent commissions. With respect to the academic literature, the chapter surveys four live debates: whether gerrymandering should be conceived in terms of intent or effect; whether the impact of gerrymandering should be assessed using absolute or relative measures; what the main drivers of district plans’ partisan biases are; and how these biases affect broader democratic values. The ongoing contributions to these and other debates show that, while gerrymandering may no longer be justiciable in federal court, it remains an active topic of legal and political science scholarship.

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices, threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law-abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so. Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

What would happen if states stopped equalizing districts’ total populations and started equalizing their citizen voting age populations (CVAPs) instead? This is not a fanciful question. Conservative activists have long clamored for states to change their unit of apportionment, and the Trump administration took many steps to facilitate this switch. Yet the question remains largely unanswered. In fact, no published work has yet addressed this issue, though it could be the most important development of the upcoming redistricting cycle. In this Article, we harness the power of randomized redistricting to investigate the representational effects of a different apportionment base. We create two sets of simulated maps—one equalizing districts’ total populations, the other equalizing their CVAPs—for ten states with particularly small CVAP shares. We find that minority representation would decline significantly if states were to equalize CVAP instead of total population. Across the ten states in our dataset, the proportion of minority opportunity districts would fall by a median of three percentage points (and by six or more percentage points in Arizona, Florida, New York, and Texas). On the other hand, the partisan impact of changing the unit of apportionment would be more muted. Overall, the share of Republican districts would rise by a median of just one percentage point. This conclusion holds, moreover, whether our algorithm emulates a nonpartisan mapmaker or a gerrymanderer and whether it considers one or many electoral environments. In most states—everywhere except Florida and Texas—switching the apportionment base simply does not cause major partisan repercussions.

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts. Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance — giving or spending money to sway elections — is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals — the Koch brothers, Michael Bloomberg, and the like — appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction. After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features — who bankrolls them, the tactics they pay for, the reasons they work — and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be? Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.

In this brief essay, I consider how courts have deployed the framework of sliding-scale scrutiny in the time of the pandemic. In particular, three novel issues have arisen in recent cases: (1) how to conceptualize burdens that are attributable to both state action and the pandemic; (2) whether to fault plaintiffs for not having taken precautionary steps before the pandemic hit; and (3) what weight to give to the so-called Purcell principle, which frowns on late-breaking judicial changes to electoral rules. Overall, I think most courts have reached the right answers on these issues. The Supreme Court, however, is the glaring exception to this encouraging trend. This leads me to two conclusions. One is that sliding-scale scrutiny is an impressively flexible doctrine, able to resolve adequately new kinds of claims in the midst of an unprecedented calamity. The other is that the current Court remains what I have called the anti-Carolene Court, implacably hostile to efforts to vindicate democratic values.

The relationship between votes and seats in the legislature lies at the heart of democratic governance. However, there has been little previous work on the downstream effects of partisan gerrymandering on the health of political parties. In this study, we conduct a comprehensive examination of the impact of partisan advantage in the districting process on an array of downstream outcomes. We find that districting bias impedes numerous party functions at both the congressional and state house levels. Candidates are less likely to contest districts when their party is disadvantaged by a districting plan. Candidates that do choose to run are more likely to have weak resumes. Donors are less willing to contribute money. And ordinary voters are less apt to support the targeted party. These results suggest that gerrymandering has long-term effects on the health of the democratic process beyond simply costing or gaining parties seats in the legislature.

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable. Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.

Academic studies of redistricting tend to be either doctrinal or empirical, but not both. As a result, the literature overlooks some of the most important aspects of the mapmaking process and its judicial supervision, like how they relate to the broader American political context. In this symposium contribution, I try to fill this gap. I first observe that the half-century in which federal courts have decided redistricting cases can be divided into two periods: one lasting from the 1960s to the 1980s, in which voters and politicians were both comparatively nonpartisan; and another reaching from the 1990s to the present day, which amounts to perhaps the most hyperpartisan era in our country’s history. I then explore how redistricting law has responded to the ebbs and flows of partisanship. In the earlier timeframe, courts (properly) focused on nonpartisan line-drawing problems like rural overrepresentation and racial discrimination. In the hyperpartisan present, on the other hand, courts have (regrettably) refrained from confronting directly the threat, partisan gerrymandering, that now looms above all others. Instead, courts have either shut their eyes to the danger or sought to curb it indirectly through the redeployment of nonpartisan legal theories.

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances. There is just one problem with these claims. They are wrong — at least for the most part. To illustrate their error, I identify four conditions that must be satisfied in order for incumbents to be held accountable. Voters must (1) know about incumbents’ records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments and attributions. I then present extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise in response to the Court’s interventions — at least not much. The qualifiers, though, are important. If the Court’s claims are mostly wrong, then they are partly right. If accountability does not rise much due to the Court’s efforts, then it does go up a bit. These points are established by the same studies that document the general inadequacy of the Court’s reasoning. With respect to certain voters in certain settings, accountability is influenced by presidential control over agencies, congressional delegation to agencies, federal commandeering of state governments, and regulation of campaign spending. That is why this Article discounts accountability as a constitutional value but not does reject it altogether.

In recent years, scholars have made great strides in measuring the extent of partisan gerrymandering. By and large, though, they have not yet tried to answer the questions that logically come next: What are the causes of district plans’ partisan skews? And what consequences do these skews have for democratic values? Using a unique dataset of state house and congressional plans’ partisan tilts from 1972 to the present, this Article addresses precisely these issues. It finds that single-party control of the redistricting process dramatically benefits the party in charge, while other mapmaking configurations have small and inconsistent effects. It also shows that greater black representation and greater urbanization have a modest proRepublican impact, albeit one that fades when Democrats are responsible for redistricting. It concludes as well that the harm of gerrymandering is not limited to divergences between parties’ seat and vote shares. The injury extends, rather, to the distortion of the representation that legislators provide to their constituents.

Over the last few years, there has been an unprecedented outpouring of scholarship on partisan gerrymandering. Much of this work has sought either to introduce new measures of gerrymandering or to analyze a metric — the efficiency gap — that we previously developed. In this Article, we reframe this debate by presenting a series of criteria that can be used to evaluate gerrymandering metrics: (1) consistency with the efficiency principle; (2) distinctness from other electoral values; (3) breadth of scope; and (4) correspondence with electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap complies with the criteria under all circumstances. Other metrics, in contrast, often violate the efficiency principle and cannot be used in certain electoral settings.

Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.

American election law litigation is unique in many ways. In this short essay, I highlight some of its distinctive aspects and show how they have manifested in a landmark partisan gerrymandering lawsuit in which I have been involved.

Scholars and judges agree about the importance of constitutional approval — that is, people’s subjective support for their constitution. The Supreme Court has asserted that it owes its very legitimacy to popular backing for its decisions. Academic luminaries have concurred, while also connecting constitutional approval to compliance, durability, and the easing of the countermajoritarian difficulty. Until now, though, no information has been available on either the levels or causes of constitutional support. In this Article, we rectify this shortcoming by presenting the results of a nationally representative survey that we conducted in late 2014. The survey asked respondents about their approval of the federal Constitution and of their state constitution, and about several potential bases for support. We also supplemented the survey by coding dozens of features of state constitutions. This coding allows us to test hypotheses about the relationship between constitutional content and constitutional backing. What we find is illuminating. First, people highly approve of their constitutions — the federal charter more so than its state counterparts. Second, approval is unrelated to what constitutions say; it does not budge as their provisions become more or less congruent with respondents’ preferences. Third, approval is only weakly linked to respondents’ demographic attributes. And fourth, the most potent drivers of approval are constitutional familiarity and pride in one’s state or country. To know it — and to be proud of it — is to love it. These results unsettle several literatures. They mean that people form opinions about constitutions differently than they do about other institutions. They also mean that comparativists may be going down a dead end as they focus ever more intently on constitutional design. But perhaps our study’s clearest implication is for leaders who value popular support for the constitution. Our advice to them is to forget about constitutional change, and instead to try to build the public’s knowledge and appreciation of the charter. Constitutional approval, like statecraft, is ultimately a project of soulcraft.

The standard form of electoral system in the United States — plurality voting with one person, one vote — suffers from countless defects, most of which stem from its failure to enable people to register the intensity of their preferences for political outcomes when they vote. Quadratic voting, an elegant alternative system proposed by Glen Weyl, provides a theoretically attractive solution to this problem but is an awkward fit with America’s legal and political traditions. We identify the legal barriers to the adoption of quadratic voting, discuss modified versions that could pass muster, and show how even a modified version would address many of the pathologies of the existing system.

The law largely has overlooked one of the most important sociological developments of the last half-century: a sharp decline in residential segregation. In 1970, 80% of African Americans would have had to switch neighborhoods for blacks to be spread evenly across the typical metropolitan area. By 2010, this proportion was down to 55%, and was continuing to fall. Bringing this striking trend (and its causes) to the attention of the legal literature is my initial aim in this Article. My more fundamental goal, though, is to explore what desegregation means for the three bodies of civil rights law — housing discrimination, vote dilution, and school segregation — to which it is tied most closely. I first explain how all three bodies historically relied on segregation. Its perpetuation by housing practices led to disparate impact liability under the Fair Housing Act. It meant that minority groups were “geographically compact,” as required by the Voting Rights Act. And it contributed to the racially separated schools from which segregative intent was inferred in Brown and its progeny. I then argue that all of these doctrines are disrupted by desegregation. Fair Housing Act plaintiffs cannot win certain disparate impact suits if residential patterns are stably integrated. Nor can claimants under the Voting Rights Act satisfy the statute’s geographic compactness requirement. And desegregating homes usually result in desegregating schools, which in turn make illicit intent difficult to infer. Lastly, I offer some tentative thoughts about civil rights law in a less racially separated America. I am most optimistic about the Fair Housing Act. “Integrated and balanced living patterns” are among the statute’s aspirations, and it increasingly is achieving them. Conversely, I am most pessimistic about the Voting Rights Act. One of its objectives is minority representation, which is threatened when minorities are politically distinctive but spatially dispersed. And a mixed verdict seems in order for school desegregation law. Rising residential integration eventually should produce rising school integration. But it has not done so yet, and even when it does, this improvement may not reach schools’ other racial imbalances.

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determines whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on. My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of "those political processes ordinarily to be relied upon to protect minorities." Second, "those political processes" refer to pluralism, the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power — one that (1) is continuous rather than binary; (2) spans all issues; (3) focuses on policy enactment; and (4) controls for group size; and (5) type. These are precisely the elements of my suggested definition. But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found. This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people. It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

What good are theories if they cannot be tested? Election law has wrestled with this question over the last generation. Two new theories have emerged during this period that reject conventional rights-and-interests balancing. In its place, the responsiveness theory asserts that legislators’ positions should be sensitive to changes in the views of their constituents. Similarly, the alignment theory claims that voters’ and legislators’ preferences should be congruent. Unfortunately, both of these theories share a common flaw: They provide no way for anyone to tell whether electoral policies improve or worsen responsiveness or alignment. They operate at too normative a level to be useful to practically minded courts or policymakers. They are caught in clouds of abstraction. This Article is an attempt to pull the theories down from the clouds. In the last few years, data has become available, for the first time, on voters’ and legislators’ preferences at the state legislative level. We use this data to calculate responsiveness and alignment for both individual legislators and whole legislative chambers, across the country and over the last two decades. We also pair these calculations with a new database of state electoral policies that covers the areas of (1) franchise access, (2) party regulation, (3) campaign finance, (4) redistricting, and (5) governmental structure. This pairing enables us to estimate the policies’ actual effects on responsiveness and alignment. Our results mean that laws’ representational impact now is a matter of empirics, not conjecture. Courts that wish to decide cases in accordance with the responsiveness or alignment theories may do so by consulting our findings. Policymakers who aim to enact beneficial reforms may do the same. And academics no longer have an excuse for debating the theories from a purely normative perspective. Now that the “is” has been intertwined with the “ought,” the “is” no longer may be ignored.

The Supreme Court is on the cusp of rejecting one of the best ideas for reforming American elections: independent commissions for congressional redistricting. According to the plaintiffs in a pending case, a commission is not “the Legislature” of a state. And under the Elections Clause, it is only “the Legislature” that may set congressional district boundaries. There are good reasons, grounded in text and precedent, for the Court to rebuff this challenge. And these reasons are being aired effectively in the case’s briefing. In this symposium contribution, then, I develop three other kinds of arguments for redistricting commissions. Together, they illuminate the high theoretical, empirical, and policy stakes of this debate. First, commissions are supported by the political process theory that underlies many Court decisions. Process theory contends that judicial intervention is most justified when the political process has broken down in some way. Gerrymandering, of course, is a quintessential case of democratic breakdown. The Court itself thus could (and should) begin policing gerrymanders. And the Court should welcome the transfer of redistricting authority from the elected branches to commissions. Then the risk of breakdown declines without the Court even needing to enter this particular thicket. Second, commission usage leads to demonstrable improvements in key democratic values. The existing literature links commissions to greater partisan fairness, higher competitiveness, and better representation. And in a rigorous new study, spanning federal and state elections over the last forty years, I find that commissions, courts, and divided governments all increase partisan fairness relative to unified governments. At the federal level, in particular, commissions increase partisan fairness by up to fifty percent. And third, the implications of the plaintiffs’ position are more sweeping than even they may realize. If only “the Legislature” may draw congressional district lines, then governors should not be able to veto plans, nor should state courts be able to assess their legality. And beyond redistricting, intrusions into any other aspect of federal elections by governors, courts, agencies, or voters should be invalid as well. In short, a victory for the plaintiffs could amount to an unnecessary election law revolution.

In the last couple years, new editions of the two most prominent election law casebooks have been released, and one entirely new casebook has been published. This is an opportune moment, then, both to review the volumes and to assess the state of the field. Fortunately, both are strong. All of the casebooks are well-organized, thorough in their coverage, and full of insightful commentary. And the field, at least as presented by the volumes, is impressively confident in its substantive and methodological choices. There is a high level of consensus as to both the subject areas that election law should include and the analytical methods that it should employ. Instructors looking to select a casebook thus are faced with an embarrassment of riches. Because all of the volumes are excellent, my suggestion is that instructors make their choice based on their own substantive and methodological inclinations. Those who are most interested in representational issues and in doctrinal context should select Issacharoff, Karlan, and Pildes. Those who wish to emphasize campaign finance and empirical political science should choose Lowenstein, Hasen, and Tokaji. And those who want to focus on democratic theory, history, and an unusually wide array of sources should pick Gardner and Charles. There is no going wrong here.

Election law doctrine has long been dominated by rights-and-interests balancing: the weighing of the rights burdens imposed by electoral regulations against the state interests that the regulations serve. For the last generation, the election law literature has emphasized structural values that relate to the functional realities of the electoral system, competition chief among them. This Article introduces a new structural theory — the alignment approach — that has the potential to reframe and unify many election law debates. The crux of the approach is that voters’ preferences ought to be congruent with those of their elected representatives. Preferences as to both party and policy should correspond, and they should do so at the levels of both the individual district and the jurisdiction as a whole. The areas the alignment approach could reorient include franchise restriction, party regulation, campaign finance, redistricting, and minority representation. For instance, measures that hinder voting could be conceived not as rights violations or efforts to suppress competition, but rather as partisan distortions of the electorate. Similarly, campaign finance regulations could be assessed based on their capacity to shift candidates’ preferences toward those of their constituents (and away from those of their donors). And the key issue for district plans could be whether they properly align the jurisdiction’s median voter with the legislature’s median member. The alignment approach is attractive because it stems from the core meaning of democracy itself. If it is the people who are sovereign, then it is their preferences that should be reflected in the positions of their representatives. The approach also is appealing because of the support it finds in the Supreme Court’s case law. While the Court has never embraced the approach explicitly, it has often recognized the significance of preference congruence. However, it is important not to overstate the approach’s utility. Other election law values matter too and cannot be disregarded. Moreover, many of the factors that produce misalignment are non-legal and thus cannot be addressed by law reform alone.

From the ACS blog: "In the Issue Brief, the five authors analyze the major elements of the Voting Rights Amendment Act of 2014 (“VRAA”), bipartisan legislation that seeks to remedy some of the damage inflicted by last summer’s Supreme Court decision in Shelby County v. Holder. The Issue Brief examines the VRAA’s new coverage formula for preclearance, the expansion of the Section 3 bail-in remedy, the revision to the preliminary injunction standard for voting rights cases, and the provisions mandating public notice of changes to voting laws and procedures. The scholars conclude that these measures are valid exercises of congressional power and that the VRAA appropriately responds to the constitutional standards articulated by the Court in Shelby County and other relevant cases."

Election law suffers from a comparative blind spot. Scholars in the field have devoted almost no attention to how other countries organize their electoral systems, let alone to the lessons that can be drawn from foreign experiences. This Article begins to fill this gap by carrying out the first systematic analysis of redistricting practices around the world. The Article initially separates district design into its three constituent components: institutions, criteria, and minority representation. For each component, the Article then describes the approaches used in America and abroad, introduces a new conceptual framework for classifying different policies, and challenges the exceptional American model. First, redistricting institutions can be categorized based on their levels of politicization and judicialization. The United States is an outlier along both dimensions because it relies on the elected branches rather than on independent commissions and because its courts are extraordinarily active. Unfortunately, the American approach is linked to higher partisan bias, lower electoral responsiveness, and reduced public confidence in the electoral system. Second, redistricting criteria can be assessed based on whether they tend to make districts more heterogeneous or homogeneous. Most of the usual American criteria (such as equal population, compliance with the Voting Rights Act, and the pursuit of political advantage) are diversifying. In contrast, almost all foreign requirements (such as respect for political subdivisions, respect for communities of interest, and attention to geographic features) are homogenizing. Homogenizing requirements are generally preferable because they give rise to higher voter participation, more effective representation, and lower legislative polarization. Lastly, models of minority representation can be classified based on the geographic concentration of the groups they benefit and the explicitness of the means they use to allocate legislative influence. Once again, the United States is nearly unique in its reliance on implicit mechanisms that only assist concentrated groups. Implicit mechanisms that also assist diffuse groups — in particular, multimember districts with limited, cumulative, or preferential voting rules — are typically superior because they result in higher levels of minority representation at a fraction of the social and legal cost.

The two most significant approaches to redistricting to emerge in the last generation are both consequentialist. That is, they both urge authorities to design — and courts to evaluate — district plans on the basis of the plans’ likely electoral consequences. According to the partisan fairness approach, plans should treat the major parties symmetrically in terms of the conversion of votes to seats. According to the competitiveness approach, districts should be as electorally competitive as is feasible. Unnoticed by the literature, a substantial number of jurisdictions, in both America and Australia, have heeded these calls from the academy. In sum, consequentialist criteria have been used to shape the district plans for close to three hundred elections over the last four decades. In this paper, I provide an initial assessment of the record of these criteria. The record, for the most part, is mediocre. Controlling for other relevant factors, partisan fairness requirements have not made district plans more symmetric in their treatment of the major parties. Nor have competitiveness requirements made elections more competitive. The likely explanations are the poor drafting, low prioritization, and need for unrealistically accurate electoral forecasts of most consequentialist criteria. However, other common proposals for redistricting reform — in particular, the use of neutral institutions such as commissions — have performed much better. Elections in Australia, all of which rely on commissions, are much fairer and more competitive than their American counterparts. In the United States, commission usage increases both partisan fairness in state legislative elections and competitiveness in congressional elections, even controlling for an array of other variables. Ironically, it seems that consequentialist criteria cannot achieve their own desired consequences — but that non-consequentialist approaches can.

n Shelby County v. Holder, the Supreme Court dismantled one of the two pillars of the Voting Rights Act: Section 5, which had barred southern jurisdictions from changing their election laws without receiving prior federal approval. But the Court left standing the VRA’s other pillar: Section 2, which prohibits racial discrimination in voting throughout the country. The burning question in the wake of Shelby County is what will happen to minority representation in the South now that Section 5 has been struck down but Section 2 lives on. This Article is the first to address this vital issue. The Article explores the Section 2 – Section 5 gap with respect to both the procedure and the substance of voting rights litigation. Procedurally, the provisions differ in their allocation of the burden of proof, their default before a decision on the merits is reached, and their proceedings' cost. These differences mean that numerous policies that previously would have been blocked now will go into effect. In the first substantive area to which the VRA applies, vote dilution, the provisions diverge as well. Section 2 does not extend to bizarrely shaped districts or districts whose minority populations are overly heterogeneous or below 50% in size. In contrast, Section 5 applies to all of these district types. According to my empirical analysis, more than one-third of all formerly protected districts in the South now may be eliminated with legal impunity. In the other substantive area covered by the VRA, vote denial, the provisions again vary in their scope. A mere statistical disparity between minorities and whites does not violate Section 2, but it typically does suffice for preclearance to be denied. The rash of franchise restrictions enacted by southern states in the months since Shelby County shows how much this distinction matters. The Article also considers some of the ways in which the Section 2 – Section 5 gap could be closed. A new coverage formula could be adopted, thus restoring the prior regime. The VRA’s “bail in” provision could be amended to make it easier to subject jurisdictions to preclearance through litigation. Or Section 2 could be revised so that it resembles the stricken Section 5 more closely. Unfortunately, all of these steps face serious legal and political obstacles. A divided Congress is unlikely to pass legislation touching on sensitive issues of race and political power. Likewise, the Court may be reluctant to allow Shelby County to be circumvented. The Section 2 – Section 5 gap thus will probably persist for the foreseeable future.

In an earlier article, I relied on 2005-2009 data from the American Community Survey (ACS) to analyze the congressional districts that were used in the elections of the 2000s. In this brief addendum, I employ more recent ACS data, covering the 2006-2010 period, to analyze the congressional districts that recently have been drawn for the next decade’s elections. My findings should be a valuable resource for courts, litigants, scholars, and anyone else interested in the geographic makeup of America’s new congressional districts. The overall story is one of substantial continuity, but this headline masks an array of interesting subplots: for instance, the improvement of California’s district plan, the worsening of Maryland, North Carolina, and Pennsylvania’s, and the increase in the number of districts with highly heterogeneous African American populations.