Race, Redistricting, and Representation

This Essay, which was written for the Ohio State Law Journal\u27s symposium on Election Law and the Roberts Court, examines the Court\u27s decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority\u27s worry in LULAC and that the case is the first application of Justice Kennedy\u27s representation rights concept first introduced in Vieth

How Should Alaskans Choose?: The Debate Over Ranked Choice Voting

In November 2020, Alaskan voters will decide whether or not they will adopt a Ranked Choice Voting system for elections within their state. While the move would be an unprecedented one for the state, the state of Maine and cities across the country have already adopted Ranked Choice Voting in recent years. The electoral system of Ranked Choice Voting in the United States has seen city-wide adoption, mass repeal, and renewed interest and support over the last century. Proponents hail its ability to improve representation and campaign civility, while opponents point out its complexity and potential to decrease voter turnout. The issue of whether to adopt this electoral reform invokes questions about access to representation, voter participation, and solutions to the larger structural problems, such as polarization, that plague American politics today

Redistricting and the Public Interest: Developing a Value-Explicit Dialogue

Throughout the coming year, legislators will take up the decennial responsibility of drawing new boundaries for legislative districts. Political scientists and practitioners often emphasize the profound impact of redistricting on political careers, process, and policy. However, the ultimate goals of redistricting remain controversial. Redistricting plays a large role in establishing the framework for American politics, and is thus directly linked to representation and the “public interest,” a contested theoretical concept. Using the lens of previous public interest theory, this study examines the historical redistricting dialogue through a content analysis of redistricting-related Supreme Court cases. By applying an analysis of Brian Barry’s ideal- or want-regarding classifications of the public interest, this research finds that methods of legislative redistricting have trended toward want-regarding concepts of the public interest. Bolstered by an analysis of contrasting redistricting policy in the neighboring states of Illinois and Iowa, this paper concludes with a call for a more value-explicit theoretical dialogue surrounding the process of legislative redistricting

In Defense of Judicial Supremacy

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should be abandoned

The Independent State Legislature Theory and Partisan Gerrymandering: How \u3ci\u3eMoore v. Harper\u3c/i\u3e May Reshape Congressional Elections

In 2019, the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering is not a justiciable question for federal courts. Four years later, the Court is reviewing a new case, Moore v. Harper. In Moore, the question presented is whether state courts can review partisan gerrymandering. The central question in Moore is the validity of the Independent State Legislature Theory. Proponents of the ISLT believe that state legislatures derive their authority to draw Congressional districts from the Federal Constitution and are therefore not subject to state-level checks and balances such as gubernatorial vetoes and state courts when redistricting. Critics argue that neither precedent nor the intent of the Framers grants state legislatures exclusive authority over redistricting. This paper analyzes the history of the Independent State Legislature Theory and outlines potential standards that the Court may adopt based off past-precedent. It then applies these standards to the redistricting process, arguing that nearly any form of the Independent State Legislature Theory would harm American democracy by making it easier for state legislatures to draw Congressional districts for partisan advantage. This paper concludes with strategies for mitigating the harm that would be caused if the Court legitimizes the Independent State Legislature Theory

Democracy and Distortion

This Article contends that judicial supervision of excessive manipulation of electoral lines for partisan purposes - political gerrymandering - may be justified in a mature democracy. The Article responds to the debate among courts and commentators over whether political gerrymandering presents any constitutionally relevant harms and, further, whether courts may be able to resolve the structural issues presented by political gerrymandering claims. Drawing from political theory and political science, this Article develops a theory of institutional distortion and provides a justification for aggressive judicial review of questions of democratic governance. The Article does not argue that the United States Supreme Court should regulate political gerrymandering; instead, it argues that such regulation can be justified. This Article also develops a framework of election law dualism to resolve the structural challenges that political gerrymandering poses to adjudication