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Full-Text Articles in Law
A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas
A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas
William & Mary Law Review
Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of his …
The Causes And Consequences Of Gerrymandering, Nicholas O. Stephanopoulos
The Causes And Consequences Of Gerrymandering, Nicholas O. Stephanopoulos
William & Mary Law Review
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 …
Prophylactic Redistricting? Congress’S Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley
Prophylactic Redistricting? Congress’S Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley
William & Mary Law Review
The Voting Rights Act (VRA) has been an important mechanism for increasing participation by racial minorities in the electoral system. In recent years, however, the Supreme Court has demonstrated its willingness to reconsider the VRA’s constitutionality. Due to the broad prophylactic scope of section 2 of the VRA, two main developments pose risks to its continued validity.
First, the Supreme Court narrowed Congress’s enforcement power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, and is likely to interpret Section 2 of the Fifteenth Amendment similarly. Section 2 of the VRA features many key characteristics of …
Intent Is Enough: Invidious Partisanship In Redistricting, Justin Levitt
Intent Is Enough: Invidious Partisanship In Redistricting, Justin Levitt
William & Mary Law Review
When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that an excessive injection of politics in the redistricting process violates the Constitution, but failed to agree on what is excessive (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” This effort is a sprint to answer the wrong question. It is perhaps the question Justices have asked, but not the one best illuminating the problem.
This Article suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish …
A Reasonable Bias Approach To Gerrymandering: Using Automated Plan Generation To Evaluate Redistricting Proposals, Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu, Emily R. Zhang
A Reasonable Bias Approach To Gerrymandering: Using Automated Plan Generation To Evaluate Redistricting Proposals, Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu, Emily R. Zhang
William & Mary Law Review
No abstract provided.
From Educational Adequacy To Representational Adequacy: A New Template For Legal Attacks On Partisan Gerrymanders, Christopher S. Elmendorf
From Educational Adequacy To Representational Adequacy: A New Template For Legal Attacks On Partisan Gerrymanders, Christopher S. Elmendorf
William & Mary Law Review
For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution—that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the …
Gerrymandering And Association, Daniel P. Tokaji
Gerrymandering And Association, Daniel P. Tokaji
William & Mary Law Review
No abstract provided.
Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel E. Charles, Luis Fuentes-Rohwer
Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel E. Charles, Luis Fuentes-Rohwer
William & Mary Law Review
No abstract provided.
Taking Virtual Representation Seriously, Joseph Fishkin
Taking Virtual Representation Seriously, Joseph Fishkin
William & Mary Law Review
No abstract provided.
The Gerrymander And The Constitution: Two Avenues Of Analysis And The Quest For A Durable Precedent, Edward B. Foley
The Gerrymander And The Constitution: Two Avenues Of Analysis And The Quest For A Durable Precedent, Edward B. Foley
William & Mary Law Review
It has been notoriously difficult for the United States Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one person, one vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one person, one vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning …
Redistricting Transparency, Rebecca Green
Redistricting Transparency, Rebecca Green
William & Mary Law Review
Until recently, legislative redistricting remained a relatively obscure topic for most Americans. In the upcoming 2020 round, increased public interest in the problem of gerrymandering, combined with the rise of technologies that empower public participation, will fuel public scrutiny of state redistricting processes at levels never before experienced. Are states prepared for this oversight onslaught? Will current redistricting transparency rules frustrate or nurture growing public interest? Can states take steps in advance of 2020 to ensure meaningful and productive public participation during the redistricting process? A thoughtful approach to redistricting transparency can both improve resulting maps and stave off litigation. …
Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen
Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen
William & Mary Law Review
No abstract provided.
Something Old, Something New, Or Something Really Old? Second Generation Racial Gerrymandering Litigation As Intentional Racial Discrimination Cases, Dale E. Ho
William & Mary Law Review
No abstract provided.
Reapportionment, Nonapportionment, And Recovering Some Lost History Of One Person, One Vote, Pamela S. Karlan
Reapportionment, Nonapportionment, And Recovering Some Lost History Of One Person, One Vote, Pamela S. Karlan
William & Mary Law Review
No abstract provided.
Remedy Gone Awry: Weighing In On Weighted Voting, Keith R. Wesolowski
Remedy Gone Awry: Weighing In On Weighted Voting, Keith R. Wesolowski
William & Mary Law Review
No abstract provided.
Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan
Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan
William & Mary Law Review
No abstract provided.