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

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. Homogeninng 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

The Consequences of Consequentialist Criteria

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

Quasi Campaign Finance

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 nonelectoral 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

KEYNOTE SPEECH: Walking the Line: Modern Gerrymandering and Partisanship

INTRODUCTION I am going to be discussing an ongoing project of mine that I call hyperpartisan election law. I make three main arguments in this project. The first is that almost all of election law was created during an unusually nonpartisan period in the 1960s, 1970s, and 1980s. Consistent with this period\u27s very low level of partisanship, election law originally did not intend to, and did not actually have the effect, of addressing partisan cleavages. The second claim is that as the country\u27s voters and politicians have become ever more partisan over the last generation, election law has adapted in two distinctive ways. One, by sometimes going into dormancy, and so not being available for litigants. Two, by being redirected to enable it to tackle partisan grievances, only indirectly rather than directly. The third claim is that neither of these two responses by election law are really apt for our hyperpartisan modern moment. It would be a lot better, in my view, for election law to tackle partisan intent and partisan effect directly rather than indirectly. I will try to convince you that American political history has gone through three main phases. First, a long period, up through the 1950s, when voters and politicians were nearly as partisan as they are today. Two, a very unusual era-in the 1960s, 1970s, and 1980s-when both voters and politicians were much more nonpartisan. Third, another stretch occurs from the 1990s to today, when the partisanship of both voters and politicians has risen to unprecedented heights. Next, I will go through four separate redistricting doctrines: one-person, one-vote; racial vote dilution; racial gerrymandering; and partisan gerrymandering, and try to show how each one corresponds to my thesis. My thesis, again, is that election law used to make sense during the more nonpartisan period in which it was formed, but its old doctrines are an increasingly bad fit for our hyperpartisan present. In the broader project I try to address all of election law, but because the symposium is on redistricting I will only talk about redistricting today

Voting Rights Federalism

It’s well-known that the federal Voting Rights Act is reeling. The Supreme Court nullified one of its two central provisions in 2013. The Court has also repeatedly weakened the bite of the statute’s other key section. Less familiar, though, is the recent rise of state voting rights acts (SVRAs): state-level enactments that provide more protection against racial discrimination in voting than does federal law. Eight states have passed SVRAs so far—five since 2018. Several more states are currently drafting SVRAs. Yet even though these measures are the most promising development in the voting rights field in decades, they have attracted little scholarly attention. They have been the subject of only a handful of political science studies and no sustained legal analysis at all. In this Article, then, we provide the first descriptive, constitutional, and policy assessment of SVRAs. We first taxonomize SVRAs. That is, we catalogue how they diverge from, and build on, federal protections against racial vote denial, racial vote dilution, and retrogression. Second, we show that SVRAs are constitutional in that they don’t violate any branch of equal protection doctrine. They don’t constitute (or compel) racial gerrymandering, nor do they classify individuals on the basis of race, nor are they motivated by invidious racial purposes. Finally, while existing SVRAs are quite potent, we present an array of proposals that would make them even sharper swords against racial discrimination in voting. One suggestion is for SVRAs simply to mandate that localities switch to less discriminatory electoral laws—not to rely on costly, time-consuming, piecemeal litigation. Another idea is for SVRAs to allow each plaintiff to specify the benchmark relative to which racial vote dilution should be measured—not to stay mute on the critical issue of baselines

Non-Retrogression Without Law

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance