Teaching Election Law

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

Spatial Diversity

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\u27s redistricting case law. It is primarily spatially diverse districts that have been condemned (in individual opinions) as political gerrymanders. Similarly, it is the spatial heterogeneity of the relevant minority population that typically explains why certain 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: (r) 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\u27s 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\u27s utility

The Case for the Legislative Override

What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the article explains which institutional and political contexts are hospitable to the override and which are not

Our Electoral Exceptionalism

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

Disparate Impact, Unified Law

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 over 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 to 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

Accountability Claims in Constitutional Law

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

Redistricting and the Territorial Community

As the current redistricting cycle unfolds, 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 f