Nicholas Stephanopoulos

An article by Nicholas Stephanopoulos: Observers of the debate over the independent state legislature (ISL) theory would be forgiven for assuming that its adoption would…

New York Democrats made a last-ditch appeal to the state’s highest court on Tuesday to overturn a pair of lower-court rulings and salvage newly drawn congressional districts that overwhelmingly favor their party. In oral arguments before the New York State Court of Appeals, lawyers for the governor and top legislative leaders said that Republicans challenging the lines had fallen short of proving that the state’s new congressional map violated a state ban on gerrymandering. ... Nicholas Stephanopoulos, a Harvard law professor who studies redistricting, said New York’s map was not “remotely” as skewed as maps adopted by Republicans in Florida or Democrats in Illinois. And he cautioned that striking down New York’s maps while allowing other Republican-drawn gerrymanders to stand across the country would only further bias the national map toward one party. Still, Mr. Stephanopoulos said the litigation in New York and other states this year offered some reason for optimism in a decades-long fight by public interest groups to curb the influence of gerrymandering. “The fact that both sides are now willing to bring partisan gerrymandering claims, and state courts have struck down both Republican and Democratic maps, I think that is encouraging in terms of sweeping national reform in the future,” he said.

Civil rights defenders on Thursday welcomed a ruling by a federal judge who struck down parts of a Florida voter suppression law, calling racism “a motivating factor” in the GOP-backed legislation’s passage. In a 288-page ruling, U.S. District Judge Mark Walker blocked provisions of Florida’s Senate Bill 90, a massive attack on voting rights signed by Republican Gov. Ron DeSantis in 2020. The law empowers partisan poll watchers, imposes strict voter ID requirements, criminalizes so-called “ballot harvesting,” limits ballot drop boxes, and bans advocacy groups from handing out food or water to voters waiting in long lines. ... “We’ve seen other district courts do aggressive things in election law cases, and we’ve seen a lot of those decisions get reversed by appellate courts or the Supreme Court,” Nicholas Stephanopoulos, a Harvard Law School professor and election law expert, told The New York Times.” I wouldn’t be shocked if this litigation falls into that pattern.”

A federal judge in Florida ruled on Thursday that sections of the state’s year-old election law were unconstitutional and racially motivated, and barred the state from making similar changes to its laws in the next decade without the approval of the federal government. The sharply worded 288-page order, issued by Judge Mark E. Walker of the Federal District Court in Tallahassee, was the first time a federal court had struck down major elements of the wave of voting laws enacted by Republicans since the 2020 election. Finding a pattern of racial bias, Walker in his ruling relied on a little-used legal provision to impose unusual federal restrictions on how a state legislates. ... “From a realistic perspective, it’s unlikely that the 11th Circuit or the Supreme Court would agree with the district court that there was racially discriminatory intent in Florida,” said Nicholas Stephanopoulos, a Harvard Law School professor and an expert on election law. “There’s a lurking fear that the same court that decided Shelby County might decide that bail-in is unconstitutional.”

As Republicans impose new restrictions on ballot access in multiple states, President Biden has no easy options for safeguarding voting rights despite rising pressure from frustrated activists. Unlike on other issues such as immigration or environmental protection, the White House has little leverage without congressional action as the November elections creep up. “If there were some sort of easily available presidential power on this, others would have done it,” said Nicholas Stephanopoulos, a Harvard Law School professor who researches election law. “There is no significant unilateral authority here.”

A contentious decision from the US Supreme Court in a Voting Rights Act case from Alabama this week previewed what could be a momentous legal battle over the 1965 law, which over the past several years has been repeatedly whittled down by the conservative justices. ... "Alabama's proposal would turn the VRA into a race-blind statute that only looks into what this hypothetical race-blind process would produce," said Nicholas Stephanopoulos, a Harvard Law professor who specializes in election law. "And so the consequence would be just substantially less minority representation in America."

When three federal judges last month blocked Alabama’s new Republican-backed map of US congressional districts as likely discriminatory against Black voters, they said they were applying “settled law” and that the outcome was not even close. An increasingly assertive conservative-majority US Supreme Court disagreed. The justices froze the lower court’s ruling and allowed Alabama to use the contested map of the state’s seven US House of Representatives districts for the November 8 midterm elections in which Republicans are seeking to regain control of Congress from President Joe Biden’s fellow Democrats. ... “If the court accepted Alabama’s argument, that would be the end of Section 2 as we know it,” said Harvard Law School Professor Nicholas Stephanopoulos, an expert in redistricting. “It would become far harder for plaintiffs to win Section 2 cases, and states could eliminate many existing minority opportunity districts without violating the statute,” Stephanopoulos said, referring to districts in which minorities have a better chance of electing lawmakers of their choice.

One reliable strategy for Democrats in gerrymandering battles over the past decade has been to sue Republicans for racial gerrymandering — arguing that Republicans illegally packed minority voters into districts so these voters had less power to elect additional representatives. ... But “race-blind” policies would probably still benefit Republicans by diluting minority voters. The University of Michigan’s Jowei Chen and Harvard Law’s Nicholas Stephanopoulos did an analysis of “race-blind” redistricting in all of the nation’s state House districts. They found that there would be “substantially fewer” minority-majority districts, and those that remained would have smaller minority populations in them. In the South in particular, Republicans would benefit from this by picking up more districts.

An op-ed by Nicholas Stephanopoulos: Will anything be left of the Voting Rights Act after the Supreme Court finishes with it? It’s looking pretty grim. In 2013, the Supreme Court dismantled the part of the law that required states with a history of discrimination to get approval for changes to election rules. Last year, the court all but eliminated minority voters’ ability to use another part of the law to challenge discriminatory voting restrictions. Now, the court has signaled its interest in frustrating the law’s aim of ensuring that minority voters are adequately represented.

In Arizona, citizens can vote early for nearly a month before Election Day. In New Hampshire, early voting doesn't exist. In Florida, any voter can request a mail ballot. In Texas, only some voters can vote absentee, such as those who are old, sick, in jail or out of town. Democrats say this patchwork of state rules makes no sense when citizens vote in federal elections, and have pushed legislation to create uniform rules. Republicans have blocked that effort, arguing that the powers belong in the hands of state lawmakers. Many Republican lawmakers have derided voting rights legislation as a "federal takeover" of elections. ... "No one is proposing that federal officials take over these responsibilities," said Harvard law professor Nicholas O. Stephanopoulos, who has advised some nonprofit groups involved in drafting the bill.

The decision by Senators Kyrsten Sinema and Joe Manchin to block their fellow Democrats from passing new federal voting-rights legislation clears the path for years of tightening ballot restrictions in Republican-controlled states. It also marks a resounding triumph for Chief Justice John Roberts in his four-decade quest to roll back the federal government’s role in protecting voter rights. ...  “There’s no consistent explanation that can account for Roberts’s rulings in election-law cases other than just a partisan motive,” [Nicholas] Stephanopoulos, echoing the view of many critics, told me. “Intervene when it’s restrictions on money in politics; don’t intervene when it’s partisan gerrymandering or voting restrictions. Intervene again when it’s Congress trying to do something about racial vote suppression or racial vote dilution. Sometimes mention the Framers, sometimes don’t mention the Framers. It’s anything goes as long as the final outcome is the preferred partisan outcome.”

Over the past two centuries, the quickest way to spot a gerrymandered map of congressional districts has been to look at their shapes. Distended, jagged, almost laughably contorted boundaries were usually a sign that mapmakers were trying to tip the scales toward one political party or the other. ... One way to stymie partisan gerrymandering is by putting redistricting in the hands of commissions that include Democrats and Republicans. “You can pick half a dozen different parameters, and on every single one of them, you're seeing progress in states that have independent commissions,” said Nicholas Stephanopoulos, a law professor at Harvard University. Independent commissions aren’t a panacea. In some states, legislators have all but ignored the decisions of poorly structured panels. But when designed carefully, the commissions are a significant improvement over the status quo. Democrats in the House have proposed mandating independent commissions in their voting rights bill, the For the People Act. But Republicans have blocked the legislation in the Senate. “With the politicians, once they’re pursuing their self-interests, everything else goes out the window,” Mr. Stephanopoulos said.

...Last week, Democrats announced they would bring voting rights to the fore once again. Seemingly energized by the first anniversary of the Jan. 6 insurrection on the U.S. Capitol, when supporters of then-President Donald Trump tried to prevent the certification of the results of the 2020 presidential election, Senate Majority Leader Chuck Schumer said his chamber would soon vote on easing filibuster rules so that voting rights legislation could possibly — finally — make it across the finish line. ... But even if Democrats aren’t able to pass voting rights legislation, they can at least establish themselves as the party in favor of democracy and voting rights. The question is, will this be enough for their base? At least one expert told me that the party risks looking feckless, if not useless, if they cannot deliver. “You don’t get points for trying; you get points for succeeding,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “So the party base who cares about voting rights as an issue are not going to care that Democrats tried and failed. If anything, they’ll be irritated and disappointed if the bill has a lot of salience and still doesn’t pass.”

With just over a week left until Michigan's redistricting commission votes to adopt new voting districts for the next decade, the state’s civil rights department says the commission's maps violate federal voting rights requirements. ... An analysis by the department argues the commission's proposed congressional maps don't comply with the Voting Rights Act — the federal law that prohibits voting districts that deny minority voters an opportunity to elect their preferred candidates — because they eliminate majority-minority districts, where nonwhite voters make up more than 50% of the district. It found that the commission must draw majority-minority districts in Detroit, Flint, Hamtramck, Inkster, Pontiac, Redford, Saginaw, Southfield and Taylor. Nicholas Stephanopoulos, a Harvard Law School professor who specializes in election law, called the department's work "laughably bad analysis," in an email to the Free Press. The Voting Rights Act doesn't require majority-minority districts, Stephanopoulos said. "Rather, it sometimes requires minority opportunity districts to be drawn — that is, districts where minority voters are able to elect their candidates of choice. In a state like Michigan, with a reasonable volume of white Democrats willing to support minority-preferred candidates, the threshold for an opportunity district is certainly below 50%."

Critics of Maryland’s newly redrawn congressional maps promised to once again file lawsuits to block the reconfigured electoral districts, which Republicans blasted as a blatant partisan power grab by Democrats. But fighting partisan gerrymandering in the courts now appears even more difficult than a decade ago, when opponents fought a losing battle against Maryland’s last redistricting plan. ... “With a Democratic legislature that has a veto-proof majority, they could easily fix any (Voting Rights Act) problem or any racial gerrymandering problem without drawing additional Republican districts,” said Nicholas Stephanopoulos, a Harvard Law School professor who’s been involved in lawsuits over partisan gerrymandering. “If Republicans sue, all you can really manage is to potentially reshuffle the districts racially but without affecting their partisan breakdown.”

Michigan’s redistricting commission will soon decide whether it wants to heed the calls it heard during its statewide tour to make wholesale changes to how it drew Black voters in its draft congressional and legislative districts. Some of the loudest criticism the commission received targeted the draft districts it drew in Detroit that would pair predominantly Black neighborhoods in the city with whiter suburban communities. ... Voting rights experts say there is no target share of minority voters that should be assigned to a district to comply with the Voting Rights Act, and creating a racial target would expose the commission to legal challenges. ... And the commission is not beholden to how the current lines divvy up minority voters, said Nicholas Stephanopoulos, a Harvard Law School professor who specializes in election law. The Voting Rights Act "doesn't require 50% districts, it doesn't require freezing the status quo. It requires performing districts for minority voters," he said.

President Joe Biden said on Thursday he would be open to doing away with the filibuster in pursuit of protecting Americans’ voting rights, bolstering voting rights’ advocates calls to abolish the controversial rule after Republicans blocked federal voting legislation from advancing for the third time this year. Wednesday’s 49-51 Senate vote barred any debate from occurring on the Freedom to Vote Act, a bill that would have enacted automatic voter registration, guaranteed at least 15 consecutive days of early in-person voting and allowed for no-excuse mail voting in federal elections among other measures. ... “This is further confirmation that paring down the bill isn’t going to make a difference,” says Nicholas Stephanopoulos, a professor at Harvard Law School who specializes in election law. “[Democrats] haven’t come close to getting the vote of a single Republican Senator—let alone 10 Republican senators—so we’re nowhere near anything like a 60-vote supermajority.”

State judges bedeviled by weirdly shaped and obviously partisan congressional district maps can now get expert help from an unusual source: math nerds. Using sophisticated techniques drawn from statistics and geometry, mathematicians have developed tools that could play a huge role in a gerrymandering lawsuit filed in Ohio and during court fights expected in Georgia, Texas and Oregon. The algorithms can determine whether a map benefits one party or another, with the aim of providing courts and citizens with an objective gauge rather than relying on partisan arguments. While both mapmakers and their critics have long used software to draw the lines, this year will be the first redistricting cycle in which opponents will have the mathematical measures to objectively show that a map is gerrymandered as the maps are being approved for the next decade. That could potentially alter a process that may determine control of the U.S. House in next year’s midterms..In 2014, Harvard law professor Nicholas Stephanopoulos and political scientist Eric McGhee developed the efficiency gap, which measures how many votes each party wasted, either by losing a race or winning by an unnecessarily high margin.