Election Law Commons^™

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 …

Not Gill-Ty: Challenging And Providing A Workable Alternative To The Supreme Court's Gerrymandering Standing Analysis In Gill V. Whitford, Colin Neal

William & Mary Bill of Rights Journal

No abstract provided.

You’Ve Got (Political) Questions? We’Ve Got No Answers, Michael R. Dimino

Mercer Law Review

In Rucho v. Common Cause, the Supreme Court of the United States held that partisan-gerrymandering claims present non-justiciable political questions. The decision seemingly settled a controversy that had existed for decades, during which the Court was simultaneously unwilling to declare partisan-gerrymandering claims non-justiciable and unable to agree on a judicially manageable standard for adjudicating those claims. In Rucho, for the first time, a five-Justice majority definitively concluded that there are no judicially manageable standards to determine the constitutionality of partisan gerrymanders, and therefore held that federal courts lacked jurisdiction to hear cases raising such claims.

Although the Court …

Rucho For Minimalists, Benjamin Plener Cover

Mercer Law Review

In one of last term’s most consequential cases, Rucho v. Common Cause, the Supreme Court of the United States decided, 5–4, that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” This limits the power of the federal courts to address what many, this author included, consider a significant threat to American democracy: the manipulation of electoral maps to favor certain voters or candidates. Federal courts may still intervene to vindicate the one-person-one-vote principle, enforce the Voting Rights Act (VRA), or invalidate racial gerrymanders. But not to limit partisan gerrymandering. Writing for the majority, Chief …

Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier

William & Mary Law Review

No abstract provided.

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.

Gobbledygook: Political Questions, Manageability, & Partisan Gerrymandering, Michael Gentithes

Akron Law Faculty Publications

In finding that extreme partisan gerrymandering is a non-justiciable political question in Rucho v. Common Cause , the Supreme Court fixated upon the lack of judicially manageable standards to evaluate their constitutionality. The decision culminated in the Court's recent reinforcement of that manageability focus in partisan gerrymandering cases, with Chief Justice Roberts even calling efforts to numerically calculate the extremity of such gerrymandering "sociological gobbledygook." Such belabored fears about manageability misread the questions in the political question doctrine. The doctrine requires the Justices to initially ask, as a normative matter, whether the judiciary should resolve the controversy in our constitutional …

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 …

Rethinking How Voters Challenge Gerrymandering: Congress, Courts, And State Constitutions, Megan Wilson

Loyola of Los Angeles Law Review

No abstract provided.

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. …

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. …

Appendix: 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 Online

Here, we present our findings, analogous to those on the efficiency gap in Part I.B of our Article published in the print edition of the William & Mary Law Review, on the other measures of partisan fairness.

Taking The States' Congressional Delegations Seriously: A Twelfth Amendment And First Amendment Approach To Identifying The Worst Gerrymanders, Jamin B. Raskin

William & Mary Law Review Online

Charming and irresistible as it is, the nineteenth-century slang term “gerrymander” cannot generate an equal protection standard to transform congressional and state legislative redistricting in the twenty-first century.

Appendix: Text And Precedent For Representational Adequacy Claims Under Fifty State Constitutions, Christopher S. Elmendorf

William & Mary Law Review Online

This Appendix supplements the Article, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders in the print edition of the William & Mary Law Review.

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.

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 …

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.

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.

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 …

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 …

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 …

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

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 …

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 …

The Next Reapportionment Revolution, Ashira Ostrow

Indiana Law Journal

In the 1960s, the Supreme Court famously imposed the one-person, one-vote requirement on federal, state, and local legislatures. The doctrine rapidly resolved the problem of malapportioned districts. Within just a few years, legislatures across the nation were reapportioned to equalize the population between districts. Sadly, however, the national commitment to equal-population districts has led directly to the current crisis of political gerrymandering. The boundaries of equal-population districts must be redrawn every ten years to maintain population equality. Even with rigid adherence to population requirements, district boundaries are easily manipulated to secure incumbent seats and advance partisan interests. Redistricting is rightly …

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 …