Law Commons^™

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Faculty Scholarship

In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. The constitution now includes multiple new substantive requirements for districting plans, including a prohibition on the “draw[ing of] [districts] to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” It also directs the creation of an “Independent Redistricting Commission” (“IRC”) to draw up, for submission to the legislature, maps that, following an extensive process of …

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Federalizing The Voting Rights Act, Travis Crum

Scholarship@WashULaw

In Presidential Control of Elections, Professor Lisa Marshall Manheim masterfully canvasses how “a president can affect the rules of elections that purport to hold him accountable” and thereby “undermine the democratic will and delegitimize the executive branch.” Bringing together insights from administrative law and election law, she categorizes how presidents exercise control over elections: priority setting through executive agencies, encouraging gridlock in independent agencies, and idiosyncratic exercise of their narrow grants of unilateral authority.

Manheim’s principal concern is an executive influencing elections to entrench themselves and their allies in power. Her prognosis for the future is steely-eyed, and she recognizes …

Redistricting Transparency & Litigation, Rebecca Green

Faculty Publications

Legislative redistricting following the 2010 Census kicked up a deluge of litigation. It did not abate. In several states, redistricting litigation extended throughout the decade, costing taxpayers millions. Factors leading plaintiffs to challenge legislative lines are multifaceted; the reasons redistricting litigation flares (and persists) are complex. One underexamined question is the extent to which process fairness in redistricting impacted redistricting litigation after the 2010 Census. At least in theory, a transparent redistricting process should produce fairer maps less likely to be challenged in court. But fights over maps result from myriad sources--the raw quest for political power, the availability of …

Two-Party Structural Countermandering, Benjamin Plener Cover

Articles

The popular narrative surrounding gerrymandering frames it as a performative phenomenon—achieved through the intentional manipulations of malevolent partisan actors. Efforts to curb partisan gerrymandering —which I call countermandering—have been performative, in turn, focusing on constraining these bad actors through judicial review or mapmaker neutrality. Yet performative countermandering has had limited success. Judicial and institutional constraints are only sometimes available and are often cumbersome and costly. More important, their utility is inherently limited, because gerrymandering is not only performative. It is also structural—an inevitable product of the American electoral schema itself. This paper makes the case for structural countermandering. It explains …

Geographic Gerrymandering, Benjamin Plener Cover

Articles

The leading measures of gerrymandering reflect a party-centric theory of representation based on the statewide relationship between seats and votes. But electoral districting, a traditional practice that still predominates, reflects a geographic theory of representation focused on the district-based relationship between a representative and her constituents. We propose a new approach to gerrymandering that takes electoral districting on its own terms and defines fairness geographically without reference to the seats-votes relationship. Scholars, courts, and mapmakers recognize the representational interests advanced by geographic criteria, such as preservation of local political boundaries. We ask whether an electoral map fairly distributes these benefits. …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …

Undefeated - An Even More Ugly Example! Exhibit Panel, Sally Brown

Undefeated Exhibit Panels

Undefeated - An Even More Ugly Example! poster

"This What Gerrymandering Looks Like" display of West Virginia redistricting.

Undefeated - Elections Matter Exhibit Panel, Sally Brown

Undefeated Exhibit Panels

Undefeated - Elections matter poster

The poster draws attention to the ways that Congressional districts have been mapped inconsistently.

The Consent Of The Governed, Carter A. Hanson

Student Publications

The Consent of the Governed is a Kolbe Fellowship project investigating gerrymandering through the lens of mathematics, Supreme Court litigation, and the potential for redistricting reform. It was produced as a five-episode podcast during the summer of 2020; this paper is the transcription of the podcast script. The project begins with an analysis of the impact of gerrymandering on the composition of the current U.S. House of Representatives. It then investigates the arguments and stories of Supreme Court gerrymandering cases in the past twenty years within their political contexts, with a focus on the Court's reaction to different mathematical methods …

Planned Obsolescence: The Supreme Court And Partisan Redistricting, Ethan Schafer

Honors Projects

Partisan redistricting, more commonly known as gerrymandering, is the act of a political party in power using its majority to draw district maps in such a way that it stays in power or increases its power. The United States Census takes place every ten years as mandated by Article I, Section 2 of the Constitution, when the maps for state and national Congress are redrawn to better allocate representation among the people. Examples of this include the two cases that are discussed in Rucho v Common Cause, the redistricting case from 2019. In this case, both the Democrat-controlled government …

The Redistricting Amendment Will Strengthen Democracy In Virginia, Alex Keena, Michael D. Gilbert, Rebecca Green

Popular Media

No abstract provided.

Redistricting Amendment Is Progress For Virginia, Rebecca Green

Popular Media

No abstract provided.

Dirty Thinking About Law And Democracy In Rucho V. Common Cause, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

In order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the …

Quantifying Partisan Gerrymandering: An Evaluation Of The Efficiency Gap Proposal, Benjamin Plener Cover

Articles

Electoral districting presents a risk of partisan gerrymandering: the manipulation of electoral boundaries to favor one political party over another. For three decades, the U.S. Supreme Court has failed to settle on a legal test for partisan gerrymandering, and such claims have uniformly failed. Until recently. Plaintiffs prevailed before a three-judge federal panel in Wisconsin by leveraging a new measure called the "efficiency gap," which quantifies partisan gerrymandering in terms of two parties' relative efficiency at translating votes for their party into seats in government. The case is now before the Court, which may embrace the efficiency gap approach and …

Judicial Intervention As Judicial Restraint, Guy-Uriel Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan …

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

This article explores the Supreme Court's new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and …

Judicial Intervention As Judicial Restraint, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

This paper examines the Court's decision in Gill v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan …

Section 6: Election Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Boundaries Of Partisan Gerrymandering, John M. Greabe

Law Faculty Scholarship

[Excerpt] “In my most recent column, I expressed concern about the effectiveness of the constitutional decision rules that currently govern gerrymandering – the redrawing of electoral districts in a manner that favors the incumbent majority at the expense of those out of power.

Briefly, the Constitution has not been interpreted to prohibit redistricting with an eye toward advancing the interests of the political party in power. But it has been interpreted to bar legislators from redistricting on racial grounds – at least in most circumstances.

The problem is that voters from certain racial groups tend to vote overwhelmingly for …

Who's Afraid Of The Hated Political Gerrymander?, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The political gerrymander has few friends among scholars and commentators. Even a majority on the Supreme Court agreed that the practice violates constitutional and democratic norms. And yet, this is one of the few issues that the US. Supreme Court refuses to regulate. The justices mask their refusal to regulate this area on a professed inability to divine judicially-manageable standards. In turn, scholars offer new standards for the justices to consider. This is not only a mistake but also misguided. The history of the political question doctrine makes clear that the discovery of manageable standards has never controlled the Court's …

Reynolds Reconsidered, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Abolish Districts, Corinna Barrett Lain

Schmooze 'tickets'

No abstract provided.

Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz

Articles

In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election …

Looking For A Few Good Philosopher Kings: Political Gerrymandering As A Question Of Institutional Competence, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The redistricting season is about to begin in full swing, and with it will come renewed calls for the federal courts, and particularly the U. S. Supreme Court, to aggressively review the work of the political branches. This is an intriguing puzzle. Since the early 1960’s, the federal courts have regulated questions of politics aggressively. They have done this even in the face of difficult questions of political representation. The courts have taken sides, to be sure, but these can only be described as acts of volition and will, not constitutional law. The leading case is Reynolds v. Sims. This …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz

Articles

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …

Foreword: Representation Without Party: Lessons From State Constitutional Attempts To Control Gerrymandering, James A. Gardner

Journal Articles

Since the founding, all gerrymandering of election districts, at both the state and congressional levels, has been accomplished by state actors operating almost exclusively under state law. State constitutions have often served as a first line of defense against publicly disfavored practices, and the treatment of gerrymandering is no exception. The state constitutional record reveals a gradual introduction, diffusion, and evolution of a wide variety of provisions intended to control gerrymandering, including requirements of contiguity, compactness, respect for local political boundaries, and preservation of communities of interest, among others. Indeed, such provisions have been validated by the U.S. Supreme Court …

Managing Gerrymandering, Mitchell N. Berman

All Faculty Scholarship

Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …