Nicholas Stephanopoulos

Professor of Law

Biography

Nicholas Stephanopoulos’s research and teaching interests include election law, constitutional law, administrative law, legislation, and comparative law. His work is particularly focused on the intersection of democratic theory, empirical political science, and the American electoral system. His academic articles have appeared in, among others, the Columbia Law Review, Duke Law Journal, Harvard Law Review, Northwestern University Law Review, New York University Law Review, Stanford Law Review, University of Chicago Law Review, University of Pennsylvania Law Review, Virginia Law Review, and Yale Law Journal. He has also written for popular publications including the New York Times, Los Angeles Times, Chicago Tribune, Atlantic, New Republic, Slate, and Vox. He has been involved in several litigation efforts as well, including two partisan gerrymandering cases based on his scholarship and decided by the Supreme Court.

Before joining the Harvard Law School faculty, Stephanopoulos was a Professor of Law at the University of Chicago Law School. He was previously an Associate-in-Law at Columbia Law School and an Associate in the Washington, DC office of Jenner & Block LLP. Before entering private practice, he clerked for Judge Raymond C. Fisher of the Ninth Circuit Court of Appeals.

A graduate of Yale Law School, Stephanopoulos also holds an M.Phil. in European Studies from Cambridge University and an A.B. in Government from Harvard College, graduating summa cum laude. While at Yale, he served as Editor-in-Chief of the Yale Journal of International Law, received the Jewell Prize for best second-year student contribution to a law journal, and was a finalist in both the moot court and mock trial competitions.

Stephanopoulos is a frequent television and radio commentator on legal issues. He is a co-founder of PlanScore, a website evaluating past, present, and proposed district plans. He is a member of policy reform initiatives including the Campaign Legal Center’s Litigation Strategy Council and the Committee for the Study of Digital Platforms. He has been named to The Politico 50 list as well as the National Law Journal’s “Chicago’s 40 Under 40.”

Areas of Interest

Nicholas Stephanopoulos, Disparate Impact, Unified Law, 128 Yale L.J. 1566 (2019).
Categories:
Constitutional Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
Discrimination
,
Race & Ethnicity
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Race, Place, and Power, 68 Stan. L. Rev. 1323 (2016).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Empirical Legal Studies
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Abstract
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.”
Nicholas Stephanopoulos & Jowei Chen, The Race-Blind Future of Voting Rights, 130 Yale L.J. (forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
Type: Article
Nicholas Stephanopoulos, Election Litigation in the Time of the Pandemic, U. Chi. L. Rev. Online (forthcoming 2020).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Supreme Court of the United States
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Quasi Campaign Finance, 70 Duke L.J. (forthcoming 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Elections & Voting
Type: Article
Abstract
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.
Nicholas Stephanopoulos, The Anti-Carolene Court (U. Chi. Pub. L. Working Paper No. 734, forthcoming 2019 Sup. Ct. Rev.).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos & Christopher Warsaw, The Impact of Partisan Gerrymandering on Political Parties (Aug. 21, 2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Politics & Political Theory
,
State & Local Government
Type: Other
Abstract
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.
Nicholas Stephanopoulos, The Dance of Partisanship and Districting, 13 Harv. L. & Pol'y Rev. 507 (2019).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Remarks from the Journal of Law in Society and Levin Center Symposium "Gerrymandering: The Power of Boundaries", 19 J.L. Soc'y 256 (2019).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Article
Nicholas Stephanopoulos, Accountability Claims in Constitutional Law, 112 Nw. U. L. Rev. 989 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Government Accountability
,
State & Local Government
,
Elections & Voting
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos, The Causes and Consequences of Gerrymandering, 59 Wm. & Mary L. Rev. 2115 (2018).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos & Eric McGhee, The Measure of a Metric: The Debate Over Quantifying Partisan Gerrymandering, 70 Stan. L. Rev. 1503 (2018).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
State & Local Government
,
Politics & Political Theory
Type: Article
Abstract
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.
Tom Ginsburg & Nicholas Stephanopoulos, The Concepts of Law, 84 U. Chi. L. Rev. 147 (2017).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Empirical Legal Studies
,
Legal Theory & Philosophy
,
Corruption
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
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.
Daniel Hays Lowenstein, Richard L. Hasen, Daniel P. Tokaji & Nicholas Stephanopoulos, Election Law: Cases and Materials, (6th ed., 2017).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Elections & Voting
,
Legal Education
Type: Book
Nicholas Stephanopoulos & Mila Versteeg, The Contours of Constitutional Approval, 94 Wash. U. L. Rev. 113 (2016).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
State & Local Government
,
Politics & Political Theory
Type: Article
Abstract
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.
Eric A. Posner & Nicholas Stephanopoulos, Quadratic Election Law (Coase-Sandor Inst. for L. & Econ. Res. Paper No. 752, Mar. 1, 2016).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: Other
Abstract
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.
Nicholas Stephanopoulos, Civil Rights in a Desegregating America, 83 U. Chi. L. Rev. 1329 (2016).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Civil Rights
,
Discrimination
,
Housing Law
,
Race & Ethnicity
,
Elections & Voting
,
State & Local Government
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Political Powerlessness, 90 N.Y.U. L. Rev. 1527 (2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Race & Ethnicity
,
Poverty Law
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Aligning Campaign Finance Law, 101 Va. L. Rev. 1425 (2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Elections & Voting
,
Politics & Political Theory
,
Corruption
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Eric McGhee & Steven Rogers, The Realities of Electoral Reform, 68 Vand. L. Rev. 761 (2015).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Congress & Legislation
,
State & Local Government
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Arizona and Anti-Reform, 2015 U. Chi. Legal F. 477.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Congress & Legislation
,
Politics & Political Theory
,
State & Local Government
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Teaching Election Law, 13 Election L.J. 447 (2014).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Elections & Voting
,
Legal Education
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Elections and Alignment, 114 Colum. L. Rev. 283 (2014).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Abstract
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.
William Yeomans, Nicholas Stephanopoulos, Gabriel Jackson Chin, Samuel R. Bagenstos & Gilda Daniels, The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County, 8 ACS Advance 3 (2014).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Discrimination
,
Race & Ethnicity
,
Civil Rights
,
Elections & Voting
,
Congress & Legislation
,
State & Local Government
Type: Article
Abstract
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."
Nicholas Stephanopoulos, Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769 (2013).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Politics & Political Theory
,
Elections & Voting
,
Comparative Law
Type: Article
Abstract
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.
Nicholas Stephanopoulos, The Consequences of Consequentialist Criteria, 3 U.C. Irvine L. Rev. 669 (2013).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
State & Local Government
,
Comparative Law
Type: Article
Abstract
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.
Nicholas Stephanopoulos, The South After Shelby County, 2013 Sup. Ct. Rev. 55.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Discrimination
,
Congress & Legislation
,
Elections & Voting
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Forecasting the Flashpoints, 125 Harv. L. Rev. F. 246 (2012).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Congress & Legislation
,
Elections & Voting
,
Politics & Political Theory
,
State & Local Government
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Spatial Diversity, 125 Harv. L. Rev. 1903 (2012).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
,
Politics & Political Theory
,
Supreme Court of the United States
,
State & Local Government
,
Congress & Legislation
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Communities and the California Commission, 23 Stan. L. & Pol'y Rev. 281 (2012).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Congress & Legislation
,
State & Local Government
,
Politics & Political Theory
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Redistricting and the Territorial Community, 160 U. Pa. L. Rev. 1379 (2012).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
,
Politics & Political Theory
,
Supreme Court of the United States
,
State & Local Government
Type: Article
Abstract
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.
Nicholas Stephanopoulos, Solving the Due Process Problem with Military Commissions, 114 Yale L.J. 921 (2005).
Categories:
Constitutional Law
,
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Fourteenth Amendment
,
Fifth Amendment
,
Criminal Prosecution
,
Terrorism
,
Courts
,
Executive Office
,
Military, War, & Peace
,
National Security Law
Type: Article

Education History

Current Courses

Course Catalog View