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Full-Text Articles in Law
Is There Anything Left In The Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions And The “Independent State Legislature Theory”, Derek A. Zeigler, Jose Urteaga
Is There Anything Left In The Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions And The “Independent State Legislature Theory”, Derek A. Zeigler, Jose Urteaga
Michigan Law Review
Partisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature …
State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart
State Court Litigation: The New Front In The War Against Partisan Gerrymandering, Charlie Stewart
Michigan Law Review Online
Partisan gerrymandering is the process of drafting state and congressional districts in a manner that gives one political party an advantage over another. The end goal is simple: help your party win more seats or protect existing ones. The tactic is as old as the United States. In 1788, Patrick Henry convinced the Virginia state legislature to draw the 5th Congressional District to pit his rival James Madison against James Monroe. The term “gerrymander” itself is a hybrid: in 1810, democratic Governor Gerry signed a partisan redistricting plan into law—one that contained a district that infamously looked like a salamander. …
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Michigan Law Review
This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …
The Case For State Attorney General Enforcement Of The Voting Rights Act Against Local Governments, Perry Grossman
The Case For State Attorney General Enforcement Of The Voting Rights Act Against Local Governments, Perry Grossman
University of Michigan Journal of Law Reform
The summer of 2016 showed that racial discrimination in voting is alive and well, as federal courts across the country struck down state statutes that disproportionately disenfranchise minority voters, including voter ID laws, restrictions on early voting, and racially gerrymandered legislative districts. However, at the local level, discriminatory practices in the nation’s approximately 89,000 political subdivisions have gone largely uninvestigated and challenged. Recent conflicts between communities of color and law enforcement have highlighted the failure of local governments in places like Ferguson, Missouri to adequately represent the interests of minority voters. These failures of representation, which occur in progressive states …
One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood
One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood
University of Michigan Journal of Law Reform
Skyrocketing rates of incarceration over the last three decades have had profound and lasting effects on the political power and engagement of local communities throughout the United States. Aggressive enforcement practices and mandatory sentencing laws have an impact beyond the individuals who are arrested, convicted, and incarcerated. These policies have wide-ranging and enduring ripple effects throughout the communities that are most heavily impacted by criminal laws, predominantly urban and minority neighborhoods. Criminal justice policies broadly impact everything from voter turnout and engagement, to serving on juries, participating in popular protests, census data, and the way officials draw legislative districts. The …
"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert
"Now For A Clean Sweep!": Smiley V. Holm, Partisan Gerrymandering, And At-Large Congressional Elections, Benedict J. Schweigert
Michigan Law Review
The 1930 Census reduced Minnesota's apportionment in the U.S. House of Representatives from ten to nine, requiring the state to draw new congressional districts. The Republican-led state legislature passed a gerrymandered redistricting bill in an attempt to insulate its nine incumbents in the state's delegation from the party's expected loss of the statewide popular vote to the insurgent Farmer-Labor Party. When the Farmer-Labor Governor, Floyd B. Olson, vetoed the redistricting bill, the legislature claimed the bill could take effect without the governor's signature. In Smiley v. Holm, the U.S. Supreme Court decided that the veto was effective and that …
Ratification Of Reapportionment Plans Drawn By Redistricting Commissions, Poonam Kumar
Ratification Of Reapportionment Plans Drawn By Redistricting Commissions, Poonam Kumar
University of Michigan Journal of Law Reform
Partisan gerrymandering is a danger that threatens the foundations of the American democratic structure. This Note argues that partisan gerrymandering must be eliminated in order to foster political competition and ensure government accountability. Without a judicial solution, redistricting commissions present a viable option to help cure the ills of partisan gerrymandering. This Note argues that automatic and mandatory state supreme court judicial review must be the process by which the redistricting plans drawn by these commissions are ratified. Automatic judicial review permits redistricting to remain a legislative task while giving the judiciary a quintessential judicial task. In addition, this Note …
This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman
This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman
Michigan Law Review First Impressions
After winning control of both houses of the legislature and the governorship, Texas Republicans eventually succeeded in redistricting Texas’s congressional seats in 2003, replacing a 2001 court-drawn plan. LULAC v. Perry reviewed a number of challenges to that second redistricting. The decision deals with a multiplicity of issues, including, most importantly, the standard for violations of Section 2 of the Voting Rights Act and the nature of tests for unconstitutional partisan gerrymandering. While there are some clear holdings in the case, several of them reflect different combinations of Justices in the majority and, since there are six different opinions, it …
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Michigan Law Review First Impressions
In League of United Latin American Citizens (“LULAC”) v. Perry, the Supreme Court, for the second time in two years, agonized over partisan gerrymandering. LULAC’s rejection of a Democratic challenge to the Texas legislature’s mid-decade pro-Republican congressional redistricting resembles the Court’s 2004 dismissal of a Democratic gerrymandering suit against Pennsylvania’s pro-Republican congressional redistricting plan in Vieth v. Jubelirer. As in Vieth, the Justices wrangled over justiciability, the substantive standard for assessing the constitutionality of partisan gerrymandering claims, and the interplay of justiciability and constitutionality. As in Vieth, the Court was highly fragmented: Vieth produced five separate opinions, while LULAC took …
Self-Defeating Minimalism, Adam B. Cox
Self-Defeating Minimalism, Adam B. Cox
Michigan Law Review First Impressions
Everyone wants a piece of Tom DeLay. The former majority leader is under investigation and indictment, and even the Supreme Court threatened last Term to undo one of his signal achievements. In 2003, DeLay orchestrated a highly unusual mid-decade revision of Texas’s congressional map. The revised map was a boon to Republicans, shifting the Texas congressional delegation from 15 Republicans and 17 Democrats to 21 Republicans and 11 Democrats. The map was attacked as an unconstitutional partisan gerrymander and a violation of the Voting Rights Act. When the Supreme Court agreed to hear those challenges in LULAC v. Perry, many …
Cultural Compactness, Daniel R. Oritz
Cultural Compactness, Daniel R. Oritz
Michigan Law Review First Impressions
The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC …
Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff
Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff
Michigan Law Review First Impressions
League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far superior tests were offered …
Strict In Theory, Loopy In Fact, Nathaniel Persily
Strict In Theory, Loopy In Fact, Nathaniel Persily
Michigan Law Review First Impressions
Most Supreme Court-watchers find the decision in LULAC v. Perry notable for the ground it breaks concerning Section 2 of the Voting Rights Act and the ground it refuses to break on the topic of partisan gerrymandering. I tend to think the Court’s patchwork application of Section 2 to strike down a district on vote dilution grounds is not all that dramatic, nor is its resolution of the partisan gerrymandering claims all that surprising. The truly unprecedented development in the case for me was Justice Scalia’s vote to uphold what he considered a racial classification under the Equal Protection Clause, …
A Wolf In Sheep's Clothing: Gaffney And The Improper Role Of Politics In The Districting Process, Robert A. Koch
A Wolf In Sheep's Clothing: Gaffney And The Improper Role Of Politics In The Districting Process, Robert A. Koch
University of Michigan Journal of Law Reform
The Supreme Court unanimously agrees that excessive partisan gerrymandering is unconstitutional. A plurality of the Court, however, would hold partisan gerrymandering claims to be nonjusticiable due to the lack of a judicially manageable standard. This Note synthesizes the opinions of a majority of the Court in Vieth v. Jubelirer on the precise harms of partisan gerrymandering and argues that excessive partisan gerrymandering unconstitutionally burdens the representational rights of individual voters. This Note proposes a judicially manageable standard to address that representational harm based on the Court's standard in Shaw v. Reno.
The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill
The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill
University of Michigan Journal of Law Reform
Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries …
Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker
Redefining American Democracy: Do Alternative Voting Systems Capture The True Meaning Of "Representation"?, James Thomas Tucker
Michigan Journal of Race and Law
This Article explores whether alternative voting systems are compatible with the meaning of representation in the United States. Part II begins by examining the role of geographical representation and the effect it has on the ability of individuals and groups of voters to give or withhold their consent. Part III follows this inquiry by assessing the relationship between representatives and constituents under majoritarian and proportional systems to determine the consequences of moving away from geographical representation towards models designed to enhance opportunities for all voters to choose winning candidates. A description of what a "majority" is and when and how …
Morgan Kousser's Noble Dream, Heather K. Gerken
Morgan Kousser's Noble Dream, Heather K. Gerken
Michigan Law Review
J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …
Sense And Nonsense: Standing In The Racial Districting Cases As A Window On The Supreme Court's View Of The Right To Vote, Judith Reed
Michigan Journal of Race and Law
Congressional redistricting draws the lines within which battles for political power will be fought. It is no surprise, therefore, that the redistricting process has long been the subject of social debate and legal dispute. The Supreme Court has not been able to resolve this dispute, in part, because the Justices have conflicting interpretations of the right to vote. While some Justices view voting as an individual right, others maintain that voting is correctly perceived as group right. This lack of consensus regarding the definition of the right to vote has led to a confusing articulation of the harm implicated by …
The Three-Judge District Court In Voting Rights Litigation, Michael E. Solimine
The Three-Judge District Court In Voting Rights Litigation, Michael E. Solimine
University of Michigan Journal of Law Reform
In recent Terms the Supreme Court has heard numerous appeals from the decisions of three-judge district courts in controversial Voting Rights Act cases as well as in challenges to congressional districts designed allegedly to facilitate the election of members of minority groups. Although the cases themselves have been followed closely, the institution of the three-judge district court itself has received relatively little attention, even though Congress passed legislation in 1976 that restricted the three-judge court's jurisdiction to reapportionment and certain Voting Rights Act cases. In this Article, Professor Solimine argues that numerous problems attend the formation and operation of such …
Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald
Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald
Michigan Journal of Race and Law
Part I of this Article reviews the congressional redistricting process in Georgia, particularly the State's efforts to comply with the Voting Rights Act and avoid the dilution of minority voting strength. Part II describes the plaintiffs' constitutional challenge and the State's asserted defenses, or more accurately its lack of asserted defenses. Part III argues that the decision of the majority rests upon wholly false assumptions about the colorblindness of the political process and the harm caused by remedial redistricting. Part IV notes the expansion in Miller of the cause of action first recognized in Shaw v. Reno. Part V …
Identifying The Harm In Racial Gerrymandering Claims, Samuel Issacharoff, Thomas C. Goldstein
Identifying The Harm In Racial Gerrymandering Claims, Samuel Issacharoff, Thomas C. Goldstein
Michigan Journal of Race and Law
This Article proceeds along two lines. First, it reviews the theories of harm set forth in the Justices' various opinions, i.e., the articulated risks to individual rights that may or may not be presented by racial gerrymandering. What is learned from this survey is that Shaw and its progeny serve different purposes for different members of the Court. Four members of the Shaw, Miller v. Johnson, and United States v. Hays majorities-Chief Justice Rehnquist, along with Justices Scalia, Kennedy, and Thomas- are far more concerned with "race" than "gerrymandering." In particular, they consider all race-based government classifications to be inherently …
Drawing The Line On Incumbency Protection, Sally Dworak-Fisher
Drawing The Line On Incumbency Protection, Sally Dworak-Fisher
Michigan Journal of Race and Law
In an effort to fill the void in scholarly debate and legal analysis, this Note evaluates incumbency protection as a redistricting principle and analyzes its treatment in various court opinions. After arguing that protecting incumbents is not a legitimate redistricting objective, this Note illustrates how the Supreme Court and lower federal courts have been reluctant to pass judgment on incumbency protection. This Note contrasts this "hands-off" approach to the strict scrutiny afforded claims of racial gerrymandering and argues that such an approach enables incumbents to manipulate the Voting Rights Act for their self-interest. Additionally, this Note argues that incumbents, a …
Ugly: An Inquiry Into The Problem Of Racial Gerrymandering Under The Voting Rights Act, Daniel D. Polsby, Robert D. Popper
Ugly: An Inquiry Into The Problem Of Racial Gerrymandering Under The Voting Rights Act, Daniel D. Polsby, Robert D. Popper
Michigan Law Review
In the discussion that follows, we focus on the case of congressional districting rather than on districting in general. Although we proceed in this manner for the sake of clarity, it is also true that no single, all-purpose normative theory of electoral mechanics will cover every case of democratic representation, from county commissions to mosquito control districts to sovereign legislatures. We do not claim that one can generalize our argument to every sort of election to which the VRA might apply. Yet we think our argument does approximate a theory of general application.
Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, T. Alexander Aleinikoff, Samuel Isaacharoff
Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, T. Alexander Aleinikoff, Samuel Isaacharoff
Michigan Law Review
Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realignment of electoral configurations that have given meaning to the voting rights reforms of the past two decades. In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court's latest confrontation with the law …
Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi
Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi
Michigan Law Review
This article attempts to define the constitutional principles that characterize Shaw and to suggest how those principles might be applied in a consistent, meaningful way. Part I, in which we argue that Shaw must be understood to rest on a distinctive conception of the kinds of harms against which the Constitution protects, is the theoretical heart of the article. We call these expressive harms, as opposed to more familiar, material harms. In Part II, we briefly survey the history of previous, largely unsuccessful, efforts in other legal contexts to give principled content to these kinds of harms in redistricting. …
Reapportionment--Nine Years Into The "Revolution" And Still Struggling, Michigan Law Review
Reapportionment--Nine Years Into The "Revolution" And Still Struggling, Michigan Law Review
Michigan Law Review
Malapportioned legislative districts traditionally have inhibited the effective working of government at the federal, state, and local levels. By 1960, the population disparities among legislative districts had attained such great magnitude "that the integrity of representative government was in many instances endangered." The underrepresented victims of malapportionment sought relief through the courts. Initially the Supreme Court, ever hesitant to enter the "political thicket," declined to address itself to reapportionment controversies. This era of judicial inaction ended in 1962 with the Court's ruling in Baker v. Carr, in which the plaintiffs overcame the formidable barrier posed by the political-question doctrine. …
Reapportionment: Success Story Of The Warren Court, Robert B. Mckay
Reapportionment: Success Story Of The Warren Court, Robert B. Mckay
Michigan Law Review
The fascinating thing about this major engagement of the Warren Court is that the principal decisions came to the Court late-1962 and after. Although these decisions precipitated a revolution in the concept and practice of legislative representation at every level of government, they were implemented quickly and with surprisingly little dislocation. The following remarks are intended to report the fact of that adjustment and to explain, to the extent the phenomenon is now understandable, why the change was so easily accomplished. When compared with the delay in public acceptance of decisions in the other areas mentioned above, the success of …
Constitutional Law - Judicial Power - Power To Compel Fair Apportionment By The Legislature, Walter L. Adams S.Ed.
Constitutional Law - Judicial Power - Power To Compel Fair Apportionment By The Legislature, Walter L. Adams S.Ed.
Michigan Law Review
At a general election on November 6, 1956, voters of the state of Washington approved by popular initiative a reapportionment of the legislature based upon political sub-divisions as described in the federal census of 1950. On December 6, 1956, the governor proclaimed the measure to be law and it was enrolled as chapter 5, Laws of 1957. At the regular 1957 session of the state legislature, chapter 289, revoking the initiative and calling for the use of the election precinct as the unit · of population for forming legislative districts, was passed by a vote of more than a two-thirds …
Congressional Redistricting And The Constitution, Harold M. Bowman
Congressional Redistricting And The Constitution, Harold M. Bowman
Michigan Law Review
Is congressional redistricting by state legislatures an exercise of the lawmaking function, subject to the governor's veto power? Is fairness in such redistricting secured today either by federal statute or by the federal Constitution? Of these two questions, posed by recent events, the first has been completely answered; the second has been answered in part only -- breeding in its answer new and troublesome problems.