Faculty Bibliography

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.

Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept -- “spatial diversity” -- that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most poor people live in another. But the district is spatially homogeneous if both rich and poor people are evenly dispersed throughout its territory. Spatial diversity matters, at least in the electoral realm, because it is linked to a number of democratic pathologies. Both in theory and empirically, voters are less engaged in the political process, and elected officials provide inferior representation, in districts that vary geographically along dimensions such as wealth and race. Spatial diversity also seems to animate much of the Court’s redistricting case law. It is only spatially diverse districts that have been condemned (mostly in dissents) as political gerrymanders. Similarly, it is the spatial heterogeneity of the relevant minority population that best explains why some majority-minority districts are upheld by the Court while others are struck down. After exploring the theoretical and doctrinal sides of spatial diversity, the Article aims to quantify (and to map) the concept. Using newly available American Community Survey data as well as a statistical technique known as factor analysis, the Article provides spatial diversity scores for all current Congressional districts. These scores are then used: (1) to identify egregious political gerrymanders; (2) to predict which majority-minority districts might be vulnerable to statutory or constitutional attack; (3) to evaluate the Court’s recent claims about various districts and statewide plans; and (4) to confirm that spatial diversity in fact impairs participation and representation. That spatial diversity can be measured, mapped, and applied in this manner underscores the concept’s utility.

The redistricting initiatives that California’s voters approved in 2008 and 2010 are unique in how highly they prioritize the preservation of geographic communities of interest. Yet scholars have not investigated how closely the state’s new districts — drawn by a citizen commission rather than the legislature — correspond to such communities. Nor do earlier studies of this sort exist for any other jurisdictions. This paper seeks to fill this gap in the literature. It begins by introducing a new technique for determining the level of congruence between districts and communities. The crux of the approach is to calculate how heterogeneous districts’ constituent Census tracts are, with respect to the factors that shape people’s residential patterns. These factors are derived from two sources: demographic and socioeconomic data from the Census Bureau, and election results from California’s popular initiatives. The more heterogeneous districts’ tracts are, the less closely they tend to correspond to communities, and vice versa. The paper’s principal finding is that California’s new Assembly, Senate, and Congressional districts are somewhat more congruent with geographic communities than their predecessors. Their average levels of congruence are higher. They contain fewer districts with extremely low congruence scores. And, at the Congressional level, they rank in the middle of the pack in adjusted congruence instead of almost last in the country. The paper complements these results with a series of vignettes that illustrate some of the decisions, both good and bad, that account for the new districts’ boundaries. Using maps of districts and their constituent tracts, it explains how the commission succeeded in raising the level of district-community congruence in some areas - and why it failed to do so in others.

As the next redistricting cycle begins, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional - but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to organic geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they unnecessarily disrupt them. This approach, which I call the “territorial community test,” has a robust theoretical pedigree. In fact, the proposition that communities develop geographically and require legislative representation has won wide acceptance for most of American history. The courts have also employed variants of the test (without scholars previously having noticed) in several related fields: reapportionment, racial gerrymandering, racial vote dilution, etc. The principle of district-community congruence thus animates much of the relevant case law already. The test is largely unscathed, furthermore, by the unmanageability critique that has doomed every other potential redistricting standard. The courts have shown for decades that they can compare district and community boundaries, and the social science literature confirms the feasibility of such comparisons. Finally, the political implications of the test’s adoption would likely be positive. My empirical analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participation would rise. It is true that the territorial community test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinal dead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart.