Academic Articles

Journal Articles

Districting and Competition

Districting and Competition, 174 U. Pa. L. Rev. (forthcoming 2026) (with Richard H. Pildes)

Redistricting Without Tradeoffs

Redistricting Without Tradeoffs, 125 Colum. L. Rev. (forthcoming 2026) | Link

The law of redistricting is built on the assumption that tradeoffs among line-drawing criteria are pervasive. This view helps explain crucial elements of partisan gerrymandering, racial vote dilution, and racial gerrymandering doctrine. This Article is the first to rigorously analyze the existence and extent of redistricting tradeoffs. It relies on ensembles of billions of district maps generated randomly by cutting-edge computer algorithms, covering all electoral levels for seven priority states as well as congressional maps for all states with two or more U.S. House districts. The Article finds that, contrary to the conventional wisdom of courts and scholars, redistricting tradeoffs are generally weak to nonexistent. In most cases, progress along one dimension (like compactness, partisan fairness, or minority representation) requires no regression along another axis. This conclusion has sweeping implications for redistricting law and policy. Legally, it bolsters plaintiffs alleging partisan gerrymandering or racial vote dilution, because their objectives can typically be achieved without sacrificing other goals. In policy terms, the usual absence of tradeoffs means that line-drawers can often have it all — maps that simultaneously comply with traditional criteria, treat the major parties fairly, lead to competitive elections, and properly represent minority voters.

Election Law for the New Electorate

Election Law for the New Electorate, 17 J. Legal Analysis 42 (2025) | Link

The American electorate is transforming — undergoing its most sweeping changes in half a century. These shifts include the disappearance of income as a partisan cleavage, the emergence of education as a new partisan axis, a decline in racially polarized voting, and a more neutral political geography. This article is the first to explore the implications of the new electorate for election policy and law. As to policy, the parties’ longstanding positions on numerous electoral issues have become obsolete. As to law, an array of electoral claims and defenses now operate differently than in the past. The article proceeds subfield by subfield through election law — voting regulations, racial discrimination in voting, redistricting, and campaign finance — first documenting changes in the American electorate, then explaining how partisan actors should respond to these developments, and then elaborating on the legal ramifications.

The New Vote Dilution

The New Vote Dilution, 96 N.Y.U. L. Rev. 1179 (2021) | Link

We may be witnessing the emergence of a new kind of vote dilution claim. In a barrage of lawsuits about the 2020 election, conservative plaintiffs argued that electoral policies that make it easier to vote are unconstitutionally dilutive. Their logic was that (1) these policies enable fraud through their lack of proper safeguards and (2) the resulting fraudulent votes dilute the ballots cast by law-abiding citizens. In this Article, I examine this novel theory of vote dilution through fraud facilitation. I track its progress in the courts, which have mostly treated it as a viable cause of action. Contra these treatments, I maintain that current doctrine doesn’t recognize the claim that electoral regulations are dilutive because they enable fraud. However, I tentatively continue, the law should acknowledge this form of vote dilution. Fraudulent votes can dilute valid ones—even though, at present, they rarely do so.

Under my proposed approach, vote dilution through fraud facilitation would be a cognizable but cabined theory. Standing would be limited to voters whose preferred candidates are targeted by ongoing or imminent fraud. Liability would arise only if a measure is both likely to generate widespread fraud and poorly tailored to achieve an important governmental interest. And relief would take the form of additional precautions against fraud, not the rescission of the challenged policy. In combination, these points would yield a mostly toothless cause of action under modern political conditions. Should there ever be a resurgence of fraud, though, the new vote dilution claim would stand ready to thwart it.

Democracy’s Denominator

Democracy’s Denominator, 109 Calif. L. Rev. 1011 (2021) (with Jowei Chen) | Link

What would happen if states stopped equalizing districts’ total populations and started equalizing their citizen voting-age populations (CVAPs) instead? This is not a fanciful question. Conservative activists have long clamored for states to change their unit of apportionment, and the Trump administration took many steps to facilitate this switch. Yet the question remains largely unanswered. In fact, no published work has yet addressed this issue, though it could be the most important development of the upcoming redistricting cycle. In this Article, we harness the power of randomized redistricting to investigate the representational effects of a different apportionment base. We create two sets of simulated maps—one equalizing districts’ total populations, the other equalizing their CVAPs—for ten states with particularly small CVAP shares.

We find that minority representation would decline significantly if states were to equalize CVAP instead of total population. Across the ten states in our data set, the proportion of minority opportunity districts would fall by a median of three percentage points (and by six or more percentage points in Arizona, Florida, New York, and Texas). On the other hand, the partisan impact of changing the unit of apportionment would be more muted. Overall, the share of Republican districts would rise by a median of just one percentage point. This conclusion holds, moreover, whether our algorithm emulates a nonpartisan mapmaker or a gerrymanderer and whether it considers one or many electoral environments. In most states—everywhere except Florida and Texas—switching the apportionment base simply does not cause major partisan repercussions.

The Sweep of the Electoral Power

The Sweep of the Electoral Power, 36 Const. Comment. 1 (2021) | Link

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.

The Race-Blind Future of Voting Rights

The Race-Blind Future of Voting Rights, 130 Yale L.J. 862 (2021) (with Jowei Chen) | Link

A critical issue in any racial vote-dilution case is the proportionality (or lack thereof) of a minority group’s representation: how well (or poorly) minority voters are represented relative to their share of the population. In an important recent opinion, Judge Easterbrook proposed replacing this proportionality benchmark with what we call the “race-blind baseline.” Under this approach, minority voters’ representation would be compared not to their population share but rather to the fraction of seats they would control if districts were drawn randomly and without the use of racial data. Long critical of the proportionality benchmark, conservative advocates have been quick to embrace Judge Easterbrook’s idea. The current Supreme Court, which has already dismantled part of the Voting Rights Act, may also be interested in adopting the race-blind baseline. Yet until now, no one has explored this benchmark’s implications: how it would affect minority representation as well as the partisan balance of power.

In this Article, we tackle these questions for the first time. We do so using a technique—the random generation of district maps by a computer algorithm—that has become the gold standard in partisan-gerrymandering cases, but that has not yet been systematically deployed in the context of race and redistricting. We find, first, that in most states, a nonracial redistricting process would yield substantially fewer districts where minority voters are able to elect their preferred candidates. Judge Easterbrook’s proposal would thus cause a considerable drop in minority representation. Second, we show that the minority opportunity districts that arise when lines are drawn randomly are quite different from the ones that now exist. They are less likely to pack minority voters and more apt to represent them through coalitions with white voters. And third, contradicting the conventional wisdom about the link between minority and partisan representation, we demonstrate that Democrats would not benefit from the elimination of opportunity districts under the race-blind baseline. Rather, in the southern states where the benchmark would have the biggest impact, it is Republicans who would gain a partisan edge.

Quasi Campaign Finance

Quasi Campaign Finance, 70 Duke L.J. 333 (2020) | Link

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.

The Anti-Carolene Court

The Anti-Carolene Court, 2019 Sup. Ct. Rev. 111 | Link

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.

Disparate Impact, Unified Law

Disparate Impact, Unified Law, 128 Yale L.J. 1566 (2019) (winner of the AALS Distinguished Scholarship in Election Law prize) | Link

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.

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 bolster 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.

The Measure of a Metric: The Debate Over Quantifying Partisan Gerrymandering

The Measure of a Metric: The Debate Over Quantifying Partisan Gerrymandering, 70 Stan. L. Rev. 1503 (2018) (with Eric M. McGhee) | Link

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 Essay, we reframe the 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 U.S. electoral history. We then apply these criteria to both the efficiency gap and other measures. The efficiency gap complies with our criteria under all circumstances. Other metrics, in contrast, often violate the efficiency principle and cannot be used in certain electoral settings.

Accountability Claims in Constitutional Law

Accountability Claims in Constitutional Law, 112 Nw. U. L. Rev. 989 (2018) | Link

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.

Race, Place, and Power

Race, Place, and Power, 68 Stan. L. Rev. 1323 (2016) | Link

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 it 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.

Civil Rights in a Desegregating America

Civil Rights in a Desegregating America, 83 U. Chi. L. Rev. 1329 (2016) | Link

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.

Political Powerlessness

Political Powerlessness, 90 N.Y.U. L. Rev. 1527 (2015) | Link

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determine 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.

Aligning Campaign Finance Law

Aligning Campaign Finance Law, 101 Va. L. Rev. 1425 (2015) (also published in abridged form as a book chapter in Democracy by the People: Reforming Campaign Finance in America (Eugene D. Mazo & Timothy K. Kuhner eds. 2018)) | Link

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.

Partisan Gerrymandering and the Efficiency Gap

Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015) (with Eric M. McGhee) | Link

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 are likely to 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 8 percent for state house plans, but only if the plans probably will stay unbalanced for the remainder 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 “[h]ow much political . . . effect is too much.”

The Realities of Electoral Reform

The Realities of Electoral Reform, 68 Vand. L. Rev. 761 (2015) (with Eric M. McGhee and Steven Rogers) | Link

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.

Elections and Alignment

Elections and Alignment, 114 Colum. L. Rev. 283 (2014) | Link

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 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 nonlegal and thus cannot be addressed by law reform alone.

The South After Shelby County

The South After Shelby County, 2013 Sup. Ct. Rev. 55 | Link

In 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.

Our Electoral Exceptionalism

Our Electoral Exceptionalism, 80 U. Chi. L. Rev. 769 (2013) | Link

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.

Spatial Diversity

Spatial Diversity, 125 Harv. L. Rev. 1903 (2012) | Link

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 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: (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.

Redistricting and the Territorial Community

Redistricting and the Territorial Community, 160 U. Pa. L. Rev. 1379 (2012) | Link

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 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.

Reforming Redistricting

Reforming Redistricting: Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail, 23 J.L. & Pol. 331 (2007) (also published in abridged form as an American Constitution Society Issue Brief) | Link

There are several ways, in theory, in which redistricting reform could be achieved. State legislatures could voluntarily cede their line-drawing authority; courts could invalidate flagrant gerrymanders; or popular initiatives could be launched to put in place neutral commissions. Unfortunately, thanks to politicians’ self-interest as well as the Supreme Court’s recent decisions in Vieth v. Jubelirer and LULAC v. Perry, the last of these is now the only realistic option for curbing gerrymandering. This Article, accordingly, offers the first normative and empirical examination of redistricting initiatives.

The Article begins by explaining why initiatives are well-suited to the redistricting context, and why commissions are appealing line-drawing institutions. In short, initiatives enable voters to unblock stoppages in the political process (as Ely might put it), and to entrench their preferences through the newly created commissions. Relying on extensive archival research, the Article next analyzes all twelve redistricting initiatives that have taken place over the course of American history. The historical evidence helps illuminate why each measure succeeded or (more commonly) failed.

Finally, the Article considers the twelve initiatives holistically in order (1) to better understand the factors that account for their passage or rejection and (2) to glean lessons that reformers can apply in future campaigns. The Article’s key finding is that, contrary to the academic conventional wisdom, the measures tend to fail because of the strident opposition of the majority party in the state legislature. Conversely, the measures succeed only when some factor - e.g., favorable national developments, the enthusiastic support of the state’s media establishment, rifts between the majority party’s executive branch officers and its legislators - defuses the majority party’s resistance. Reformers, then, should wait for auspicious moments before launching initiatives, and should aim at all costs to prevent the legislative majority from unifying in opposition.

The Case for the Legislative Override

The Case for the Legislative Override, 10 UCLA J. Int’l L. & Foreign Aff. 250 (2005) (winner of Yale Law School’s Jewell Prize) | Link

What is the optimal arrangement of judicial review? Most scholars who have sought to answer this question have assumed that there are only two worthwhile 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. Under this model, the courts retain their authority to invalidate legislation on constitutional grounds, but their decisions may be overridden by the legislature.

The Article begins by describing and evaluating the experiences of the two countries that have adopted the override: Canada and Israel. It concludes that the override has functioned reasonably well in both cases, though its performance could have been improved through better institutional design. The Article then introduces a refined override arrangement that promises to protect fundamental rights while also promoting democratic decision-making. The hallmarks of this arrangement are a supermajority requirement, a ban on preemptive override use, and a sunset provision. The claim is that these features would foster vibrant inter-branch dialogue and result in court decisions being overridden only when they incite deep and abiding opposition. Finally, the Article explains which institutional and political contexts are hospitable to the override and which are not. The override is well-suited to countries with respected legislatures and strong human rights records, but a poor fit for countries in which minorities face the realistic threat of majoritarian oppression.

Shorter Works

Aligning Constitutional Law

Aligning Constitutional Law, 86 Ohio St. L.J. 1173 (2025) (symposium contribution) | Link

At present, American constitutional law gives short shrift to the democratic value of alignment (congruence between governmental outputs and popular preferences). But it doesn’t have to be this way. In this symposium contribution, I outline three ways in which constitutional law could incorporate alignment. First, alignment resembles federalism in that it’s a principle implied by the Constitution’s text, structure, and history. So doctrines analogous to those that implement federalism could be crafted to operationalize alignment. Second, comparative constitutional law recognizes democratic malfunctions that involve misalignment as well as innovative judicial remedies for these problems. Likewise, American constitutional law could appreciate the full arrays of misaligning threats and potential judicial responses to them. Lastly, one of the key concepts of modern originalism is the construction zone, in which disputes must be resolved on grounds other than the constitutional text’s original meaning. Alignment could be a factor that courts consider in the construction zone, pushing them to further, not to frustrate, this value.

Ranked-List Proportional Representation

Ranked-List Proportional Representation, 2025 Wis. L. Rev. 561 (2025) (symposium contribution) | Link

American jurisdictions are considering switching to proportional representation (PR) in volumes unseen for a hundred years. But the forms of PR currently being debated have drawbacks. The most (domestically) prominent of these, proportional ranked-choice voting (P-RCV), is both vulnerable to vote leakage among parties and cognitively challenging for voters. Another salient system, open-list proportional representation (OLPR), risks underrepresenting minority voters. This Essay therefore introduces a new form of PR—ranked-list proportional representation (RLPR)—that promises to alleviate these concerns. Under RLPR, voters first vote for a single party. They then rank only this party’s candidates. Voters’ party votes determine each party’s seat share. And voters’ candidate rankings establish which of each party’s candidates win its allotted seats. Like all forms of list PR, RLPR makes it impossible for votes to leak across party lines. RLPR is also cognitively simpler for voters because it asks them to rank only one party’s (not all parties’) candidates. And RLPR’s sequential reallocations of votes typically lead to proportional minority representation (both intraparty and overall). Accordingly, American jurisdictions should add RLPR to their menu of PR options for general elections. If they choose to adopt it, they should pair it with P-RCV for primary elections.

Give Young Adults the Vote

Give Young Adults the Vote, 100 Notre Dame L. Rev. 1299 (2025) (responding to Joshua Kleinfeld & Stephen Sachs, Give Parents the Vote, 100 Notre Dame L. Rev. 1201 (2025)) | Link

Joshua Kleinfeld and Stephen Sachs make a significant contribution to the literature on children’s disenfranchisement by describing and defending parental proxy voting: empowering parents to vote on their children’s behalf. The authors’ democratic critique of the status quo is particularly persuasive. Children’s exclusion from the franchise indeed distorts public policies by omitting children’s preferences from the set that policymakers consider. However, Kleinfeld and Sachs’s proposal wouldn’t do enough to correct this distortion. This is because contemporary parents diverge politically from their children, holding, on average, substantially more conservative views. The proxy votes that parents cast for their children would thus often conflict with the children’s actual desires. Fortunately, there’s an alternative policy that would fix more of the bias caused by disenfranchising children: young adult proxy voting. Under this approach, children’s votes would be allocated not to their parents but rather to young adults—the cohort of adults closest in age to children. Young adults, unlike parents, are highly politically similar to children. At present, for example, both young adults and children are quite liberal. So, to revise Kleinfeld and Sachs’s thesis, if we want children to be adequately represented at the polls, we should give young adults the vote.

Campaign Finance and “Real” Corruption

Campaign Finance and “Real” Corruption, in Campaign Finance and the First Amendment (Lee C. Bollinger & Geoffrey R. Stone eds., forthcoming 2025) (book chapter) | Link

Courts and commentators often assume that “real” corruption—quid pro quo corruption—is largely absent in modern American politics. But it isn’t. In at least one important area, government contracting, quid pro quo exchanges remain common today. In this book chapter, I first survey the empirical literature establishing the continued prevalence of corruption in government contracting. Next, I outline a theory capable of explaining why corruption might be widespread in government contracting but rare in generic legislating. On this account, corruption is most likely when concentrated benefits can be allocated to private parties by individual politicians through secretive, nonsalient means. Finally, I explore the implications for law and policy of pervasive corruption in government contracting. Courts should uphold measures aimed at preventing trades of contributions for contracts. Policymakers should extend existing pay-to-play bans to contractors’ PACs, parent firms, subsidiaries, employees, and family members. And all of us should realize that the ghost of “real” corruption has hardly been exorcised.

Finding Condorcet

Finding Condorcet, 81 Wash. & Lee L. Rev. 981 (2024) (symposium contribution) | Link

Instant-runoff voting (“IRV”) is having a moment. More than a dozen American localities have adopted it over the last few years. So have two states. Up to four more states may vote on switching to IRV in the 2024 election. In light of this momentum, it’s imperative to know how well IRV performs in practice. In particular, how often does IRV elect the candidate whom a majority of voters prefer over every other candidate in a head-to-head matchup, that is, the Condorcet winner? To answer this question, this Article both surveys the existing literature on American IRV elections and analyzes a new dataset of almost two hundred foreign IRV races. Both approaches lead to the same conclusion: In actual elections — as opposed to in arithmetical examples or in simulated races — IRV almost always elects the Condorcet winner. What’s more, a Condorcet winner almost always exists. These findings help allay the concern that candidates lacking majority support frequently prevail under IRV. The results also reveal an electorate more rational than many might think: voters whose preferences among candidates are, at least, coherent in virtually all cases.

Partisan Gerrymandering

Partisan Gerrymandering, in Oxford Handbook of American Election Law (Eugene Mazo ed., 2024) (book chapter) | Link

This chapter addresses the law and academic literature about partisan gerrymandering: crafting districts with the intent and effect of benefiting the line-drawing party. With respect to the law, the chapter covers the depressing arc of federal anti-gerrymandering legislation as well as the somewhat more encouraging record of state constitutional litigation. The chapter further discusses enacted state and proposed federal redistricting reforms, in particular, requirements that districts be designed by independent commissions. With respect to the academic literature, the chapter surveys four live debates: whether gerrymandering should be conceived in terms of intent or effect; whether the impact of gerrymandering should be assessed using absolute or relative measures; what the main drivers of district plans’ partisan biases are; and how these biases affect broader democratic values. The ongoing contributions to these and other debates show that, while gerrymandering may no longer be justiciable in federal court, it remains an active topic of legal and political science scholarship.

Voting Rights Federalism

Voting Rights Federalism, 72 Emory L.J. 299 (2023) (with Ruth M. Greenwood) (symposium contribution) | Link

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

Non-Retrogression Without Law, 2023 U. Chi. Legal F. 267 (with Eric McGhee and Christopher Warshaw) (symposium contribution) | Link

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.

The New Pro-Majoritarian Powers

The New Pro-Majoritarian Powers, 109 Calif. L. Rev. 2357 (2021) (responding to Pamela S. Karlan, The New Countermajoritarian Difficulty, 109 Calif. L. Rev. 2323 (2021)) | Link

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.

Depoliticizing Redistricting

Depoliticizing Redistricting, in Comparative Election Law (James A. Gardner ed., 2021) (book chapter) | Link

This chapter sheds light on the operation of redistricting commissions around the world through the first ever survey of commission members. The respondents uniformly testify to the nonpartisanship of their bodies. They attribute this impartiality to (1) the institutional structure of the commissions; (2) the elaborate sets of redistricting criteria used by the commissions; and (3) the powerful norms of political independence cultivated by the commissions. Interestingly, the respondents reject the recent American trend of instructing redistricting authorities to consider election results and to overtly pursue partisan fairness. The respondents prefer not using election results at all in the mapmaking process.

Election Litigation in the Time of the Pandemic

Election Litigation in the Time of the Pandemic, 87 U. Chi. L. Rev. Online (2020) (symposium contribution) | Link

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.

The Impact of Partisan Gerrymandering on Political Parties

The Impact of Partisan Gerrymandering on Political Parties, 45 Legis. Stud. Q. 609 (2020) (with Christopher Warshaw) | Link

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.

The Dance of Partisanship and Districting

The Dance of Partisanship and Districting, 13 Harv. L. & Pol’y Rev. 507 (2019) (symposium contribution) | Link

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 Article, 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.

The Causes and Consequences of Gerrymandering

The Causes and Consequences of Gerrymandering, 59 Wm. & Mary L. Rev. 2115 (2018) (symposium contribution) | Link

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 2016, 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 pro-Republican 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.

The Concepts of Law

The Concepts of Law, 84 U. Chi. L. Rev. 147 (2017) (with Tom Ginsburg) (symposium contribution) | Link

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.

Quadratic Election Law

Quadratic Election Law, 172 Pub. Choice 265 (2017) (with Eric A. Posner) (symposium contribution) | Link

The standard form of electoral system in the United States—plurality voting with one person, one vote—suffers from countless defects, many 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.

Lessons from Litigating for Reform

Lessons from Litigating for Reform, 16 Election L.J. 230 (2017) (symposium contribution) | Link

American election law litigation is unique in many ways. In this short essay, I highlight some of its distinctive aspects and show how they have manifested themselves in a landmark partisan gerrymandering lawsuit in which I have been involved.

The Relegation of Polarization

The Relegation of Polarization, 83 U. Chi. L. Rev. Online 160 (2017) (responding to Christopher S. Elmendorf et al., Racially Polarized Voting, 83 U. Chi. L. Rev. 587 (2016)) | Link

Liable Lies

Liable Lies, 8 Const. Ct. Rev. 1 (2016) (symposium contribution) | Link

This paper uses a recent South Africa Constitutional Court decision to explore what liability, if any, should be imposed for false campaign speech. The paper recommends the following elements: (1) liability only for false statements made with knowledge of, or recklessness as to, their falsity; (2) liability only for statements whose falsity and effects are material; (3) liability only for candidates, political parties and political committees; (4) a usual remedy of compulsory retraction and correction; (5) a restriction of harsher penalties to false statements about election administration; and/or (6) enforcement by an independent agency responsible for initiating its own investigations.

The Contours of Constitutional Approval

The Contours of Constitutional Approval, 94 Wash. U. L. Rev. 113 (2016) (with Mila Versteeg) | Link

Scholars and judges agree on 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 constitutional compliance and durability, as well as the easing of the countermajoritarian difficulty. Until now, though, no information has been available on either the levels or the 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.

Arizona and Anti-Reform

Arizona and Anti-Reform, 2015 U. Chi. Legal F. 477 (symposium contribution) | Link

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.

Teaching Election Law

Teaching Election Law, 13 Election L.J. 447 (2014) (book review) | Link

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.

The Consequences of Consequentialist Criteria

The Consequences of Consequentialist Criteria, 3 U.C. Irvine L. Rev. 669 (2013) (symposium contribution) | Link

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.

Forecasting the Flashpoints

Forecasting the Flashpoints, 125 Harv. L. Rev. F. 246 (2012) | Link

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.

Communities and the California Commission

Communities and the California Commission, 23 Stan. L. & Pol’y Rev. 281 (2012) (symposium contribution) | Link

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.

Israel’s Legal Obligations to Gaza After the Pullout

Recent Development, Israel’s Legal Obligations to Gaza After the Pullout, 31 Yale J. Int’l L. 524 (2006) | Link

This paper explores Israel’s legal obligations to Gaza in the wake of the Israeli pullout from the territory in September 2005. The paper argues that obligations under both the international law of occupation and the Israel-Palestinian Authority interim agreements continue to exist for Israel. The pullout may have altered the political dynamic in the Middle East but legally it has changed nothing.

Solving the Due Process Problem with Military Commissions

Policy Comment, Solving the Due Process Problem with Military Commissions, 114 Yale L.J. 921 (2005) | Link

This Comment’s principal goal is to explore the interplay between two adjudicatory bodies created within the Department of Defense in recent years: military commissions and combatant status review tribunals (CSRTs). A plethora of law review articles have dealt with military commissions, and the CSRTs have been covered at length in the press. There has been almost no effort, however, to analyze how the two institutions fit together or how the lessons of one could be used to solve the potential constitutional problems of the other. This Comment seeks to fill that gap. In particular, it argues that there is a serious constitutional flaw in the military commissions’ procedure for establishing personal jurisdiction and that, in an ironic twist, this flaw can be mended through a modest broadening of the scope of the CSRTs’ fact-finding powers.

Stand by Your First Amendment Values, Not Your Ad

Case Note, Stand by Your First Amendment Values, Not Your Ad, 23 Yale L. & Pol’y Rev. 369 (2005) | Link

Under the Bipartisan Campaign Reform Act (BCRA), candidates must disclose the funding for all electioneering communication and state personally that they approve their campaign ads’ messages. This paper argues that these provisions of the BCRA are unconstitutional. Though only briefly addressed in the Supreme Court’s landmark decision in McConnell v. FEC, these provisions impose grave burdens on political speech while bearing only a tenuous relationship to the government’s anticorruption and informational interests.

Book Review: “Terrorism, Freedom, and Security”

Book Review, Terrorism, Freedom, and Security by Philip B. Heymann, 29 Yale J. Int’l L. 583 (2004) | Link

Book Review: “Distant Proximities”

Book Review, Distant Proximities by James N. Rosenau, 29 Yale J. Int’l L. 266 (2004) | Link