Nicholas Stephanopoulos, Election Law for the New Electorate (Harv. Pub. L. Working Paper No. 24-02, 2024).
Abstract: The American electorate is transforming—undergoing its most sweeping changes in half a century. As this Article explores, these transformations are poised to reshape election policy and law. Consider the trends of financial depolarization and educational polarization. Income has largely disappeared as a partisan cleavage in recent years. In its place, a “diploma divide” has emerged between Democrats with more schooling and Republicans with less. As a result, Democrats now tend to be more reliable voters than Republicans. This means that, contrary to the parties’ usual assumptions, modern voting restrictions often have muted or even pro-Democratic electoral effects. These effects are not just politically but also legally consequential. Because of them, fewer voting limits are deemed to heavily burden the franchise and thus to trigger heightened judicial scrutiny. Or take the pro-Republican shift among minority voters over the last few elections, paired with white voters’ movement toward Democrats. Less racially polarized voting has important but conflicting implications for line-drawers trying to create minority opportunity districts. Less minority cohesion impedes these districts’ construction while more white crossover voting facilitates it. Under the Voting Rights Act, however, less racially polarized voting has clear legal consequences. It makes it harder for plaintiffs to establish certain preconditions for liability—and so more likely that their claims will fail. Turning from voters’ choices to their locations, the country’s political geography has evolved as well. Cities have become somewhat less Democratic, exurban and rural areas have grown far more Republican, and suburbs have shifted from a reddish to a blueish shade of purple. Because of these changes, when district maps are randomly generated without considering election results, they no longer favor Republicans in most states. Instead, these maps are now generally close to neutral. Accordingly, both parties today can gerrymander with similar ease when they have the chance. Nonpartisan institutions now tend to adopt fair plans lacking inadvertent pro-Republican skews. And in state court, plaintiffs bringing gerrymandering challenges benefit from voters’ new spatial patterns. Thanks to these patterns, quantitative measures of partisan bias increasingly tell the same story whether or not they take into account where voters live. Finally, as the wealthy have voted for Democratic candidates in larger numbers, they have also donated more to their campaigns. So, in a reversal of the historical norm, Democratic candidates now routinely outraise their Republican opponents. This reality could lead both parties to revisit their longstanding positions on campaign finance regulation. It could legally imperil contribution limits, too. Courts currently uphold these limits on the ground that they prevent corrupt exchanges between donors and politicians. But the reasons the rich now give more to Democrats are mostly ideological, not transactional. Curbs on their contributions may therefore block too little corruption to pass constitutional muster.