I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the fifth of five posts:

I finished yesterday’s post about my new book, “Aligning Election Law,” by emphasizing nonjudicial means of promoting alignment. This focus has two rationales. One is my conviction that most of America’s aligning milestones have been the product of constitutional amendment, federal or state legislation, or direct democracy. The Reconstruction Amendments, the Voting Rights Act, the Federal Election Campaign Act, independent redistricting commissions, public financing for campaigns—they were all accomplishments of nonjudicial actors. The other reason is the record of the current Supreme Court. Under the leadership of Chief Justice John Roberts, the Court has exhibited unrelenting hostility to the judicial pursuit of alignment. Over and over, the Roberts Court has refused to intervene when confronted with misaligning electoral policies. Even worse, the Court has aggressively moved to prevent other institutions from better aligning governmental outputs with popular preferences.

Partisan gerrymandering presents the most egregious case of judicial passivity where aligning judicial action was urgently needed. As I explained yesterday, gerrymandering can be highly misaligning—likely the most misaligning electoral regulation a modern government can adopt. In a pivotal 2019 decision, the Roberts Court agreed with this assessment. Gerrymandering, the Court conceded, “violates the core principle of our republican government . . . namely, that the voters should choose their representatives, not the other way around.” The Court nevertheless declined to invalidate the grossly gerrymandered North Carolina congressional plan before it. Going further, the Court held that no gerrymandering plaintiff can ever prevail in federal court. Partisan gerrymandering is categorically nonjusticiable, that is, beyond the federal judiciary’s power to rebuke or remedy.

The story is much the same with voting restrictions. Photo ID requirements for voting, cutbacks to early voting, purges of voter rolls, and the like have proliferated in recent years. The motive for these limits is unquestionably misaligning: preventing certain people (mainly racial minorities and the poor) from voting and thereby causing the actual electorate to diverge from the eligible electorate. Whether voting restrictions in fact achieve this goal is more ambiguous. Studies are divided on whether they reduce turnout, change the partisan balance of power, or make public policy less congruent with public opinion. In the face of certainty about these policies’ aims, but lack of clarity about their effects, the Roberts Court has refused to lift a finger against them. Among others, it has upheld Indiana’s photo ID requirement for voting, Ohio’s purge of its voter registration list, and Wisconsin’s strict absentee voting deadlines. Over its entire history, this Court has never ruled in favor of a plaintiff disputing a voting restriction.

This might seem like judicial restraint (even when a more robust judicial role would have been advisable) but it isn’t. When addressing aligning measures enacted by other actors, the Roberts Court has been all too happy to intercede. Consider individual contribution limits, which, again, are among the few provisions known to improve representational alignment. The Court struck down Vermont’s especially low (and thus especially effective) donation cap. The Court also nullified the aggregate federal ceiling on contributions to all candidates and political committees. And the Court’s jurisprudence led to an (unappealed) lower-court ruling that individuals must be free to give as much as they want to Super PACs, which in turn must be free to spend as much as they want. These cases reveal many things, none of which is judicial reluctance to meddle in politics.

Or take the Voting Rights Act, which significantly boosted minority participation and representation in the decades after its 1965 passage. Thanks to these gains, the collective alignment of American governments surged as minority residents became full members of the political community. Yet the Roberts Court knocked out one of the Act’s two pillars in a major 2013 decision, arguing that “things have changed in the South” in that minority residents no longer face serious attempts to deny or dilute their votes. The Court also imposed a series of constraints on the Act’s key remaining section, hindering plaintiffs’ ability to prosecute many cases. Again, this isn’t a principled record of political noninterference. What it most resembles is a dogged judicial campaign against alignment, whether sought through the courts or other bodies.

At present, then, the Supreme Court is among the last places where reformers enamored with alignment should look for help. The Court could do a great deal to align governmental outputs with popular preferences. In fact, an earlier Court (the Warren Court) did do a great deal. But as long as the Court is headed by Chief Justice Roberts, and dominated by a likeminded majority, it’s highly unlikely to heed this book’s recommendations of invalidating misaligning policies and upholding aligning ones. Instead, the Court is more apt to be an obstacle to aligning efforts pursued through other institutions—so not a supporter of alignment, or even a disinterested bystander, but rather an outright antagonist.

Fortunately, this foe is far from omnipotent. Many of the aligning initiatives that might be undertaken outside the federal courts would likely (if grudgingly) be approved by the Roberts Court if they were challenged. Think of congressional legislation. Congress could do many things to bolster alignment. It could require states to use independent redistricting commissions, thereby ending partisan gerrymandering. It could forbid states from engaging in voter suppression. It could dilute the impact of private campaign contributions by flooding elections with public financing. It could revive the portion of the Voting Rights Act neutered by the Court and undo the Court’s curbs on the rest of the Act, too. And these aligning ideas aren’t just hypothetical. All of them were recently embraced by the U.S. House even though they ultimately foundered on the U.S. Senate’s filibuster.

If these policies were enacted, the Roberts Court’s precedents suggest they would be sustained. Critically, the Court has taken an expansive view of Article I’s Elections Clause, under which Congress can regulate the “Times, Places and Manner” of congressional elections. “The Clause’s substantive scope is broad,” the Court has commented, adding that the provision enables Congress, if it wishes, to “provide a complete code for congressional elections.” This extensive a code would reach even further than Congress has yet contemplated. Additionally, the Court has noted in dicta that Congress could mandate the use of independent redistricting commissions, establish public financing for elections, and revise the Voting Rights Act. These steps amount to much of the federal electoral reform agenda—and would launch an aligning revolution if adopted.

At the state level, likewise, a variety of actors could promote (and have promoted) alignment. State legislatures, first, may seem like unlikely progenitors of policies that threaten to disrupt the misaligned status quo. But as voting has become a more partisan issue, state legislatures under the sway of the pro-voting camp have passed many laws facilitating access to the polls. Voter initiatives, next, are a tool uniquely suited to circumventing politicians who benefit from misalignment and refuse to fight it. Direct democracy has been deployed, among other things, to create independent redistricting commissions, ease voting burdens, institute public financing, and experiment with new kinds of party primaries. State courts, lastly, aren’t bound by the crabbed justiciability doctrines of the federal judiciary. State courts also enforce state constitutions that typically recognize democratic values more explicitly than the U.S. Constitution. Consequently, state courts have often ventured where the federal judiciary fears to tread, striking down franchise restrictions, partisan gerrymanders, and other misaligning measures.

The bulk of this state-level activity is lawful as well—even in the eyes of the Roberts Court. The Court conceives of state legislatures as the default regulators of both state and federal elections. So there’s virtually no aligning electoral policy that’s beyond the scope of state legislative authority. The Court also continues to acknowledge the ability of other state actors, including voters through ballot initiatives and courts via state constitutional interpretation, to set electoral rules. This capacity is unquestioned with respect to state elections. It’s more contested, but still present in most circumstances, with respect to federal elections. Under current precedent, then, the harnessing of direct democracy and state constitutional litigation to pursue alignment is largely unrestricted.

Moreover, the harnessing of private aligning activity is completely free of legal limits. On their own, without any governmental involvement, private actors can induce better representational alignment in several ways. For instance, they can simply reach out to their elected officials. Studies show that when legislators are contacted by a more representative slice of their constituents, their votes become more congruent with their constituents’ preferences. Further, a nonprofit group, academic center, or other institution could report the public’s views on policy matters by state or district. Techniques for converting national polling into accurate estimates of local opinion have recently been developed. Emerging research suggests that when these estimates are shared with legislators—allowing them to know what their constituents think about different issues—their votes more closely track their constituents’ wishes. Of course, both these aligning ideas are perfectly legal. Not only does the U.S. Constitution not constrain private political activity, the First Amendment affirmatively protects it.  

Thanks to these and other options, the battle for alignment is far from hopeless. It’s true (and deeply unfortunate) that the Roberts Court is an adversary in this struggle, not the ally it could and should be. But even a Court intent on misalignment (in its preferred ideological direction) can only do so much. Without reversing its precedents and inventing new doctrines out of whole cloth, the Court can’t thwart most federal, state, and private efforts to achieve a more congruent political system. The futility of constructive federal litigation, at least for now, is therefore no cause for despair. Rather, it’s an invitation, to lawyers and legal scholars in particular, to be more receptive to aligning mechanisms that operate outside the federal courts.

I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the fourth of five posts:

In my posts to date about my new book, “Aligning Election Law,” I haven’t yet commented on the applications of the alignment theory. So let’s get down to brass tacks. If alignment was operationalized (by judicial and/or nonjudicial actors), what would be the implications for particular electoral policies? I address two important types of laws here: district maps crafted to benefit the line-drawing party and restrictions on individual campaign donations. These aren’t random examples; rather, they’re the best illustrations of how misalignment could function as a sword (partisan gerrymandering) and alignment as a shield (individual contribution limits). The book also goes through several more areas: burdens on voting, regulations of political parties, the pursuit of minority representation through the Voting Rights Act, and even non-electoral measures (like labor law) with aligning or misaligning impacts. In some of these fields, alignment would be inert in that it would be of little use to plaintiffs or defendants. In other domains, alignment would have considerable, but more contestable, consequences. Nowhere else are there cases as clean as partisan gerrymandering and individual contribution limits.

Starting with gerrymandering, then, its essence is winning additional seats for the line-drawing party through clever district design. This is typically done by cracking the opposing party’s voters among many districts where their preferred candidates lose by relatively narrow margins and by packing those voters in a few districts where their candidates of choice win by inefficiently large margins. Properly executed, a gerrymander can produce jurisdiction-wide partisan misalignment—sometimes even a median voter who backs one party paired with a median legislator who affiliates with the other party. And increasingly, gerrymanders are properly executed. There exist several quantitative measures of jurisdiction-wide partisan misalignment, all of which indicate that parties in control of redistricting now usually manage to generate biases in their favor.

Partisan misalignment doesn’t necessarily result in representational misalignment; it all depends on how legislators behave. In an era like ours of severe legislative polarization, though, we’d expect partisan skews to turn into representational skews since the extra legislators a party secures through gerrymandering generally compile ideologically extreme voting records. And in fact, that’s exactly what happens. Partisan misalignment in a party’s favor due to districting is a powerful driver of representational misalignment in the same ideological direction. Representational misalignment, in turn, may or may not yield policy misalignment; it depends on whether the skewed legislative chamber is able to enact its preferences into law. But here as well, since unified government is now the norm at the state level, we’d anticipate a close correspondence between representational and policy distortion. And we’d be right. Policy outcomes, just like legislators’ voting records, veer ideologically toward the gerrymandering party—and away from the will of the electorate.

Based on this evidence, many district maps drawn by a single party would be vulnerable if alignment was legally cognizable. Quite often, a plaintiff would be able to show that a plan would produce significant partisan misalignment, which would subsequently translate into significant representational and policy misalignment. As I noted yesterday, such a demonstration might be enough to invalidate a map. Or, less dramatically, it might shift the burden to the state to justify its plan on legitimate, nonpartisan grounds. This burden might not sound onerous but it often would be. For any given state, there exist many district maps that satisfy all nonpartisan criteria: equal population, compactness, respect for political subdivisions, compliance with the Voting Rights Act, and so on. Among these maps, there are usually some that are less biased in the line-drawing party’s favor than the enacted plan. In that case, though, the enacted plan is legally unjustifiable. The state could have achieved all its nonpartisan goals without tilting the map so far in the line-drawing party’s direction.

Turn next to individual contribution limits. Plaintiffs unhappy with them have no reason to invoke misalignment. There’s no evidence these restrictions lead to any kind of noncongruence between popular preferences and governmental outputs. Plaintiffs can also make a more familiar claim that has succeeded many times before: that the limits violate their First Amendment rights of speech and association. For alignment to play a role in the campaign finance context, then, it must be the state that brings it into the litigation. Specifically, the state must present alignment as a compelling interest that’s furthered by its restrictions on individual donations and that therefore rescues the limits from judicial nullification.

Helpfully, even after decades of hostile jurisprudence, alignment remains doctrinally available as a rationale for campaign finance regulations. Almost half a century ago, the Supreme Court held that money in politics can’t be curbed because a jurisdiction wants to equalize candidates’ resources or people’s political influence. Alignment, however, is distinct from any form of equalization. It doesn’t necessarily (or even probably) follow from dueling candidates with identically sized war chests. Nor does it require that every person have the same political sway. In fact, alignment with the median individual is possible only if there’s misalignment with people at other points in the ideological distribution. More recently, the Court has ruled out the distortion of electoral outcomes as a justification for campaign finance regulations. But again, electoral distortion is a separate concept from misalignment. Under the former, it’s voters whose judgments are distorted by overly influential expenditures. Under the latter, in contrast, it’s elected officials who become misaligned with their constituents as a result of the funding the politicians receive.

A jurisdiction trying to defend its individual contribution limits couldn’t just wave alignment like a wand, though. Instead, it would have to prove that its restrictions in fact have an aligning effect. This proof would generally come in two steps. First, the jurisdiction would need to show that, when their activities are unchecked (or less checked), individual donors are a source of misalignment. According to extensive research, they are. Individual donors (large and small) tend to be ideologically extreme. Their money leads politicians to take extreme stances, too, to keep the contributions flowing. Second, the jurisdiction would have to establish that curbs on individual donors are aligning. Additional studies document this impact. Tighter individual contribution limits induce politicians to shift their positions toward the ideological center: the home of most voters (but few donors). District-specific representational alignment, then, isn’t just a doctrinally available rationale for campaign finance reform. It’s also a justification backed by what we know about donors, politicians, and the relationships among them.

To be clear, my argument isn’t that every district map devised by a single party would be invalid if alignment could be invoked in court, or that every individual contribution limit (let alone every campaign finance regulation) would be upheld. Some district maps exhibit low levels of partisan misalignment. They cause little, if any, representational or policy misalignment. The ecosystem of electoral money is complex, too. Some campaign funders are actually quite moderate, so if their donations were restricted, the outcome could well be less representational alignment. The point, in other words, is that the details matter. Generalizations are difficult about how different policies affect the congruence between governmental outputs and popular preferences. There’s no alternative to scrutinizing the particular facts presented by each case using the best available empirical techniques.

It’s also worth reiterating, in light of these examples, that alignment isn’t only a judicial theory. Yes, the courts should strike down misaligning district plans. But mapmakers shouldn’t create these plans in the first place, and federal or state legislation should bar misalignment due to districting. Similarly, the courts should sustain individual contribution limits when litigants attack them. But political actors of every stripe— members of Congress, state legislators, the people themselves through voter initiatives—should enact these limits because of their potent aligning influence. Again, the courts are one useful agent of alignment. But that’s all they are: one agent among many, not necessarily the most important, and not due the attention that’s lavished on them by the legal literature.

I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the third of five posts:

My posts so far about my new book, “Aligning Election Law,” have addressed the concept of alignment and the extent of alignment in modern American politics. That’s all well and good, you might say, but what does it have to do with law? Democratic theorists and political scientists might be interested in alignment, but why should public lawyers care about it? In fact, several modalities of constitutional interpretation indicate that alignment isn’t alien to our legal order. These analytic modes certainly don’t compel the recognition of alignment, but they do make its embrace plausible.

Consider the constitutional text. “We the People,” the Preamble proclaims, “establish this Constitution” in order to “promote the general Welfare.” Jurisdiction-wide, collective, policy alignment isn’t the only possible definition of the general Welfare, but it’s at least a reasonable one. It equates the general Welfare with the policies people actually want from their government. “The House of Representatives shall be [elected] by the People,” Article I continues. Popular election isn’t synonymous with representational alignment, but the two concepts do dovetail nicely. Popular election, after all, is the most aligning feature of our democratic order. And Article IV “guarantee[s] to every State . . . a Republican Form of Government.” Popular sovereignty—government by the people—is the essence of republicanism, and it’s the core of alignment, too.

Or take the intentions of the Constitution’s drafters. James Madison wrote that “[p]ublic opinion sets bounds to every government” and “must be obeyed by the government.” This is a more unequivocal endorsement of congruence between public policy and public opinion than you’ll find in my book. John Bingham, the primary author of the Fourteenth Amendment, similarly declared, “If there is anything settled under the American Constitution . . . it is the absolute, unquestioned, unchallenged right of a majority of American [eligible] citizens . . . to control [a state’s] entire political power.” This embrace of majoritarian alignment underpins the provision he penned, the fountainhead of modern election law.

The most common method of constitutional interpretation, the analysis of precedent, further strengthens alignment’s legal pedigree. In the 1960s decision that established the courts’ approach to voting restrictions, Chief Justice Earl Warren wrote that heightened scrutiny is warranted when a plaintiff mounts “a challenge [to] this basic assumption” that “the institutions of state government are structured so as to represent fairly all the people.” In my vocabulary, this is a call for more stringent review when the crux of a lawsuit is jurisdiction-wide, collective, representational misalignment. In the 1960s case that launched the reapportionment revolution, Chief Justice Warren added that, because “legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will.” This is another acknowledgement of jurisdiction-wide alignment as a normative—and constitutional—ideal.

If the courts were to recognize alignment as a legal principle, it could function as either a sword or a shield. As a sword, a plaintiff would attack an electoral policy on the ground that it’s misaligning: that it causes a divergence between popular preferences and governmental outputs. Depending on how the courts structured the doctrine, a showing of substantial misalignment might be enough to invalidate a regulation. Or, less aggressively, such a showing might shift the burden to the state, giving it an opportunity to justify the misaligning measure based on its contribution to the state’s legitimate interests. Whatever the doctrinal details, the upshot is that a new cause of action would exist, under which litigants could directly challenge electoral rules because of their misaligning effects.

As a shield, alignment (not misalignment) would be asserted by the state (not the plaintiff) in response to some other legal grievance (like a claim that a policy burdens voting or speech). The state would argue that its disputed regulation is aligning—that it shrinks the gap between popular preferences and governmental outputs—and should be upheld for that reason. Alignment would thus operate as a state interest that, if actually advanced by a measure, could save it from judicial nullification. Plainly, this is a more conventional, less disruptive role for alignment. As a shield, alignment doesn’t require the courts to create a new cause of action. It merely asks them to accept one more governmental interest (and only when it’s cited by the state).

A few points should be flagged about the judicial implementation of alignment. First, it would rely heavily on empirical evidence. If misalignment was wielded as a sword, the plaintiff would need social scientific proof that the allegedly unlawful policy, in fact, makes governmental outputs less congruent with popular preferences. Likewise, if alignment was brandished as a shield, the state would have to demonstrate that its challenged regulation genuinely has an aligning impact. Such dependence on empirical evidence is unusual in constitutional law writ large. But it’s more common in election law, where experts routinely testify about malapportionment, racial polarization in voting, the effects of voting restrictions, and a host of other quantitative issues. As one scholar has commented, “Law and social science are perhaps nowhere more mutually dependent than in the voting-rights field.”

Second, judicial recognition of alignment wouldn’t necessarily entail a great deal of judicial intervention. As my book makes clear, many electoral policies aren’t particularly misaligning—including many measures that are often thought to be misaligning. Efforts to strike down these regulations, on this basis, would therefore be unavailing. On the other hand, some electoral policies do boost alignment. These measures would generally be sustained against suits charging other kinds of legal violations. In that case, the result would again be that the courts hold their fire and democratically enacted laws remain in force.

Lastly, this discussion focuses on litigation but it mostly applies to nonjudicial policymaking, too. Outside the courts, the democratic value of alignment can be deployed both to criticize misaligning regulations (so as a sword) and to laud provisions that tighten the congruence between popular preferences and governmental outputs (so as a shield). Also outside the courts, empirical evidence is vital because it’s the only way to know whether a proposed policy change will exert an aligning or misaligning influence. Outside the courts, as well, the pursuit of alignment doesn’t threaten large swaths of the status quo: those electoral measures that either align or don’t much misalign. This close relationship between judicial and nonjudicial analysis is a theme of my book. Alignment is a theory of judicial review and regulatory design—not just a prescription for the courts.

I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the second of five posts:

In yesterday’s post about my new book, “Aligning Election Law,” I explicated the concept of alignment. Today I’ll switch from democratic theory to empirical political science and review what we know about the extent of alignment in modern American politics. The news, in short, isn’t good. At every level of government, policy, representational, and partisan misalignment are distressingly common. Moreover, the beneficiaries of misalignment are far from random. They include proponents of the status quo, the rich, and the ideologically extreme. This dismal record is why I speak in the book of “misaligned America.”

Starting with policy alignment, the definitive work (at the federal level) is Martin Gilens’s book, Affluence and Influence. Gilens compiles roughly two thousand survey questions from 1981 to 2006, all asking respondents if they supported or opposed a specific change in federal policy. He then determines if each change was, in fact, implemented during the four years after the date of the poll. According to this dataset, when a majority of respondents backed a given policy—either the status quo or an alternative to it—the majority’s preference was realized over the next four years about 54 percent of the time. This is quite a low rate of majoritarian alignment. Barely more often than a coin flip, from the 1980s to the 2000s, did federal policy align with the median respondent’s views.

At the state level, Devin Caughey and Christopher Warshaw are the authors of the most comprehensive work on state policy alignment. Caughey and Warshaw analyze dozens of issues and hundreds of surveys from 1935 to 2020. They also compute both collective policy alignment (the share of respondents who agree with a given policy outcome) and majoritarian policy alignment (whether a policy outcome is congruent with the median respondent’s preference). With respect to collective policy alignment, they show that, on average, state policy matches the views of 55 percent of respondents. With respect to majoritarian policy alignment, the average figure is slightly higher: a 59 percent rate of congruence with the median respondent’s preference. These results are broadly similar to Gilens’s findings at the federal level: On the whole, state policy alignment is about the same—about as poor—as federal policy alignment.

With whose preferences are policies aligned when they’re noncongruent with the views of the general public? One answer is people who favor the status quo. In Gilens’s dataset, a popular majority’s desire for federal policy change is realized within four years at a rate of just 39 percent. In contrast, when a popular majority wants federal policy to stay the same, it prevails at a rate of 75 percent. Another group that benefits from policy misalignment in its favor is the one that accounts for the title of Gilens’s book, Affluence and Influence. In the book, Gilens demonstrates that, when the preferences of middle-income and high-income respondents diverge by at least ten percentage points, the probability of federal policy change is highly responsive to the views of the wealthy. On the other hand, this probability is entirely nonresponsive to the views of the middle class—despite their much greater number.

A last form of policy misalignment has been documented only at the state level. Jeffrey Lax and Justin Phillips show that, in sum, state policies are more congruent with the preferences of ideologically extreme respondents—conservative and liberal—than with those of ideological moderates. This pattern is attributable to the polarization of state policy. Across the roughly forty issues that Lax and Phillips examine, state publics generally favor the liberal policy outcome in fifteen to twenty-five cases. Yet in a majority of states, there are actually fewer than fifteen, or more than twenty-five, liberal policy results. “[B]lue states tend to go ‘too far’ in adopting liberal policies and the red states go ‘too far’ in the other direction.”

Turning to representational alignment, scholars including Joseph Bafumi and Michael Herron, Michael Barber, Seth Hill and Chris Tausanovitch, and Boris Shor have calculated ideal points—overall ideological positions—for voters and members of Congress on the same scale. This literature finds that the ideal points of representatives and senators are sharply bimodal. Almost all members of Congress are liberals or conservatives while very few are moderates. The literature further finds that voters’ ideal points could hardly be more different. In stark contrast to members of Congress, most voters are moderates while smaller fractions are liberals or conservatives. The space between the polarized ideological distribution of members of Congress and the more normal ideological distribution of voters, then, represents the extent of collective representational misalignment. The sheer size of that space reveals just how misaligned Congress collectively is with the preferences of the American public.

This picture of extreme politicians and more moderate voters recurs at the state legislative level. Raymond La Raja and Brian Schaffner compile the estimated ideologies of state legislators and voters from Catalist, a leading voter file vendor. Again, most state legislators are liberals (if they’re Democrats) or conservatives (if they’re Republicans). And again, the ideological distribution of voters is very different: a bell curve with its peak close to the center of the ideological distribution. Collective representational misalignment is therefore almost as severe for state legislatures as for Congress. At both levels, voters at the ideological fringes are overrepresented while voters in the ideological middle experience inferior representation.

This discussion should make clear one group whose members enjoy highly congruent representation: voters at the ideological fringes. In modern American politics, Democratic officeholders take more liberal stances than do most of their constituents, while Republican politicians hold more conservative positions. This is bad news for most voters, who are ideologically moderate yet consigned to liberal or conservative representation depending on officeholders’ party affiliations. But it’s a godsend for the smaller fractions of voters who are themselves staunch liberals or conservatives. As long as their preferred party is in power, the extreme representation they get is the extreme representation they want.

Who are these voters at the ideological fringes in whose favor politicians’ policy stances are so skewed? Among their ranks they count most campaign donors. Campaign donors, the small group of Americans who give money to candidates for political office, have a highly polarized ideological distribution. However their ideal points are calculated, most donors are liberals or conservatives while very few are moderates. This pattern looks nothing like the more normal ideological distribution of the entire American public. But it’s virtually identical to the polarization of elected officials. Of the array of scholars to make this point, Barber shares the most arresting results. Democratic (or Republican) senators are more liberal (or conservative) than both the median voter in their state and the median voter from their party. But the ideal points of senators are almost exactly the same as those of their median donors. The distribution of donor-senator representational alignment peaks at zero—that is, no ideological gap at all.

The last stop on our tour is partisan alignment: the fit between officeholders’ party affiliations and their constituents’ partisan preferences. To evaluate collective partisan alignment, I use the efficiency gap: a measure of the partisan bias of district plans. I consider both the absolute and the net efficiency gap. The absolute efficiency gap is the absolute value of the metric. It indicates the size of a legislative chamber’s partisan bias but not its partisan direction. For the U.S. House, the trend of the absolute efficiency gap is roughly U-shaped. The chamber’s partisan skew was relatively large in the 1970s and 1980s, indicating substantial collective partisan misalignment. The chamber’s absolute efficiency gap then shrank in the 1990s and remained small through the 2000s. Over the last decade, the U.S. House’s partisan skew has grown again, albeit not to the size of the 1970s and 1980s.

The net efficiency gap, in turn, is the raw, unadjusted value of the efficiency gap. It tells us which party benefits from a legislative chamber’s partisan bias (and to what extent). In the U.S. House, Democrats enjoyed a steady and significant advantage in how efficiently their votes translated into seats in the 1970s and 1980s. This Democratic edge then evaporated in the 1990s, leaving Republicans in a slightly superior position. Since about 2000, the net efficiency gap has gradually moved further in a Republican direction, reaching pro-Republican levels in the 2010s comparable to the pro-Democratic scores of the 1970s and 1980s.

Finally, majoritarian partisan alignment is a simpler concept than collective partisan alignment. Majoritarian partisan alignment exists in a legislative chamber when the party favored by the median voter is also the party to which the median legislator belongs. There’s majoritarian partisan misalignment, on the other hand, when the party that earns the most votes fails to win the most seats as well. Political scientists sometimes call this scenario a “manufactured majority”—a majority made possible by how votes happen to be converted into seats.

In the U.S. House, there have been three cases of majoritarian partisan misalignment over the last half-century, all benefiting Republicans. In 1998, 2000, and 2012, Democratic candidates received 50.1 percent, 50.1 percent, and 51.2 percent of the nationwide two-party vote, respectively. Yet in those elections, Democrats obtained 49.0 percent, 48.8 percent, and 46.2 percent of U.S. House seats, respectively. In the U.S. Senate, there have been eleven instances of majoritarian partisan misalignment since 1980, again all in Republicans’ favor. In 1980, 1982, 1984, 1994, 1996, 2000, 2002, 2004, 2014, 2016, and 2018, Democratic candidates received more than fifty percent of the nationwide two-party vote over the three elections that shaped the chamber’s composition. After each of those elections, though, Republicans controlled the U.S. Senate. Only once since 1980, in 1998, did Republicans win a U.S. Senate majority after also earning a majority of the nationwide two-party vote over the three determinative elections.

I am pleased to welcome Nick Stephanopoulos to the ELB Book Corner, writing about his new book, Aligning Election Law. This is the first of five posts:

As many folks in the ELB community know, I recently wrote a book, “Aligning Election Law,” developing a theory of election law focused on the promotion of alignment between governmental outputs and popular preferences. The book builds on some earlier articles of mine but includes mostly new content. In a series of posts this week, I’ll summarize some of the book’s themes, a different one each day. Today I’ll hone in on the concept of alignment itself.

By alignment, then, I mean congruence between what government does and what people want it to do. Alignment can be conceptualized and operationalized in several ways. These varieties are attributable to the facts that (1) people are aggregated into political units at multiple levels, (2) people’s preferences can be captured through simpler or more complex methods, and (3) government performs a wide range of functions. Each of these points represents an axis along which alignment can be defined. Start with the political units into which people are aggregated: most notably, electoral districts and whole jurisdictions (which can be municipalities, states, or the country in its entirety). District-specific alignment can exist (or not) between people in a particular district and their representative. Similarly, jurisdiction-wide alignment is present (or absent) between the population and the government of a whole municipality, state, or nation.

Next, consider two ways in which the views of a group of people can be summarized. One approach is to report the preferences of the median individual: the person in the middle of the ideological distribution. Congruence with this figure’s opinions—majoritarian alignment—usually guarantees that the wishes of the majority are heeded. Another, more demanding method is to determine the opinions of all relevant people and then to measure how near or far some governmental output is from all these preferences. The most congruent outcome—the one that maximizes collective alignment—minimizes the average gap between that result and each person’s viewpoint.

Lastly, think of three important things that governments (or their subparts) do. Elected officials belong to parties. So we can speak of partisan alignment between people’s partisan preferences and officeholders’ party affiliations. Elected officials also take ideological positions, quintessentially by voting on bills in the legislature. Accordingly, representational alignment refers to the distance between people’s ideological views and officeholders’ ideological stances. And then through some combination of voting in the legislature and decision-making by the executive, public policy is eventually formed. Policy alignment captures the extent to which these enacted laws reflect people’s policy preferences.

This typology might be complicated but the democratic appeal of alignment isn’t. When governmental outputs (officeholders’ party affiliations, officeholders’ policy positions, or actual policy outcomes) are congruent with the views of the people (a majority or all of them) within a given political unit (a district or a jurisdiction), the people can genuinely be said to rule. But the more government diverges from the people, the less it can claim to be government by and for the people. Precisely because alignment is such an intuitive value, it overlaps with several theories of representation and democracy. Take the delegate model of representation: the idea that a legislator should abide by the preferences of her constituents. In the terminology I just introduced, this is a prescription for district-specific representational alignment.

Likewise, the pluralist theory that dominated political thought both at the Framing and for much of the twentieth century sees public policy as emerging from the continuous interplay of myriad groups. This unending cycle of making and breaking alliances is supposed to yield outcomes that, in the long run and over many issues, coincide reasonably well with most groups’ wishes. I’d call this aspiration jurisdiction-wide, collective, policy alignment. That’s also how I’d label the ultimate goal of the deliberative theory that’s prominent in contemporary debates about democracy. Deliberative democrats want people to engage in extensive, openminded dialogue before undertaking any official action, as a result of which their original views may well change. Once enough discussion has taken place, though, people’s refined opinions must be translated accurately into policy. Otherwise all their deliberation will have been in vain.

To avoid misunderstanding, I want to emphasize two caveats about alignment. The first is that it’s not the only democratic value that should matter to courts, policymakers, and political observers. Other structuralist scholars prize competition and participation. I agree that these are important elements of a vibrant democracy. So are, among others, freedom to speak and associate, rational deliberation, political equality, minority representation, and impartial election administration. If any of these was missing from a regime—even one that featured high levels of alignment—we’d rightly question its democratic legitimacy. The pursuit of alignment, then, is perfectly capable of coexistence with other election law approaches. It offers judges, politicians, and people one reason to back certain policies and oppose other ones. But it doesn’t purport to occupy the field, to deny the validity of other ways of thinking about democracy.

The second caveat is that alignment isn’t always desirable. People sometimes have poorly informed preferences, reflecting insufficient knowledge or interest. Congruence with these (non)opinions could result in inefficient, incoherent public policy. People also sometimes have malignant views, espousing discrimination against members of groups other than their own. Allowing these attitudes to become law would yield immoral, not just incompetent, outcomes.

People’s inchoate preferences with respect to particular issues mean it’s better to assess alignment in the aggregate, in terms of people’s overall ideologies. It’s reasonable to discount public opinion on specific, technical matters as to which most people haven’t given much thought. But it’s not defensible (from a democratic perspective) to disregard people’s overarching liberalism or conservatism—the sets of beliefs they use to make sense of their political world. These general philosophies are entitled to respect as the will of the people about the society they’re supposed to rule. As for the problem of invidious views, the classic solution is to exclude from the domain where alignment is sought policies that discriminate against disfavored groups or violate fundamental rights. This is typically done through constitutional provisions that render certain outcomes unavailable through the ordinary political process. I have no quarrel with these safeguards because, again, I don’t see alignment as an imperialist principle striving to supplant all other values.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The eighth and final contribution is from Justin Levitt:

The extraordinary handbook overseen by Gene Mazo strives to offer a comprehensive review of American election law: constitutional foundations, treatment of particular groups, campaigns, voting rights, election administration, redistricting, campaign finance, you name it. It’s a wonderful resource: a guide to the field and its development, a snapshot of where we stand, and a look to where we might be going.

And so I was particularly delighted when Gene asked me to write a chapter about the Census, which is in many ways the underappreciated constitutional foundation stone. I’ve spoken often about the law of democracy as the infrastructure of infrastructure: the rules by which we do everything else that we choose to do (or not do) together. Which, I think, makes the Census the infrastructure of the infrastructure of infrastructure.

The mandate to conduct a Census appears in the fifth and sixth sentences of the U.S. Constitution. It’s the very first enumerated affirmative obligation of the new federal government: before the power to coin money or regulate commerce, before the power to command armies or make treaties, before the power to decide cases and controversies. It determined representation in government and direct taxation, and tied the two to each other — and even if its role in direct taxation is a bit less relevant today, it now governs the disbursement of trillions of dollars in funding and sets the informational architecture for countless public and private decisions. The census helps us understand who We the People are.  And that understanding drives what we choose to do together, and how.

The chapter covers an array of topics related to the Census, including who gets counted where, how the count is conducted (and many of the difficulties and controversies attending the 2020 Census), and the presentation of all that data to the public (including legal safeguards like a protection against adverse use that the courts have repeatedly gotten wrong). The piece owes quite a bit to Nate Persily’s work on the law of the Census, but also to historians and to scholars of big data. And it’s informed by my own service in government; though the Census Bureau made its own decisions with respect to the issues covered in the chapter when I was in federal service, I had the benefit of a front-row seat to some of the decisions it made. (And I’ve not been shy about describing the very different approach taken at other times.)

In writing the chapter, I was perhaps most struck by the degree to which form has repeatedly driven function. (As a scholar of procedure, I’ll readily admit that I should have been less surprised.) The way that the Census presents information affects both the inputs and our understanding of the outputs. That started in the very first Census, in 1790. Congress told enumerators to “distinguish[ ] the sexes and colours of free persons, and the free

males of sixteen years and upwards from those under that age.” But in the next breath, Congress required the use of a table that didn’t actually do what Congress had purported to direct: the form for reporting the data “distinguish[ed]” the age of white men only, distinguished the sex of white people only, and lumped all other unenslaved people together into one gray sludge of imposed featureless fictitious homogeneity.

Form driving function has been a facet of Census decisionmaking — particularly though not exclusively with respect to race and ethnicity — in the intervening 234 years. The chapter follows Census grappling with socially constructed categories (for example, the criteria for determining whether individuals born in Mexico were “white” changed from 1920 to 1930 to 1940), and the ramifications of its decision to move from primary reliance on enumerators to primary reliance on us to say who we are, including how to present the intricate detail with which we define our own identities, when we’re given choices other than “Other.” A change in 2020 effectively expanding character limits for the intake form yielding detailed racial and ethnic responses showed an America with a much more diverse racial heritage, due less to demographic change and more to revealing the diversity that had been present but unpresented all along. New OMB decisions will enrich the portrait further. 

This is also a thread that ties directly to the controversies over differential privacy, also explored in the chapter with particular focus on the impact for controversies in election law. The presentation of the information we get drives the nature of the information we have. And really digging in to those difficulties may help to explain why a commitment to more transparency can mean a bit less transparency along the way.

Writing this chapter was tremendously enlightening, and not a little fun. I hope that comes through in the chapter — we could all use a little more appreciation of Infrastructure of Infrastructure of Infrastructure Week.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The seventh contribution is from Pam Karlan:

My chapter addresses election law and gender. Laws governing the right to vote can operate on several levels. Some provisions govern participation—the basic right of suffrage.  Some set rules about aggregation—how voters’ ballots are combined to determine election outcomes.  Still others implicate governance—how representatives chosen by the voters engage in policymaking.

In this blog post, I’ll discuss how these issues played out between the ratification of the Nineteenth Amendment and the outbreak of World War II because that’s probably the period least familiar to readers of the blog.

1.         Gender and Participation

In contrast to the Fifteenth Amendment, whose text served as the model for the Nineteenth Amendment, and which was widely flouted across the south until the 1960s, there was little resistance to the Nineteenth Amendment. One attack on the amendment did reach the U.S. Supreme Court.  A male voter in Maryland, represented by William Marbury (yes, a descendent of that Marbury) sued to have several women’s names removed from the voting rolls. The Maryland Legislature had refused to ratify the Nineteenth Amendment, and he claimed that “so great an addition to the electorate, if made without the state’s consent, destroys its autonomy as a political body.” The Supreme Court, in an opinion by Justice Brandeis, unanimously rejected this claim.

Although the Nineteenth Amendment swept away sex-specific legal barriers to women’s voting, female turnout lagged behind male turnout for many decades.  Indeed, it was not until at least 1980 that the participation gap largely disappeared.

There are a variety of explanations for the gap.  Among other things, at least two formally sex-neutral legal restrictions on the franchise—the literacy test and the poll tax—continued to affect women’s participation until the mid-1960s, when federal legislation and judicial decisions abolished them.

It is unclear to what extent literacy tests had a disparate impact on women; there appear to be no empirical studies on the subject. Nevertheless, the absolute effect on female participation was substantial: literacy tests, often unfairly administered, certainly disenfranchised massive numbers of Black and Latina women in the south and southwest. And Puerto Rico actually imposed a sex-based literacy qualification between 1929 and 1935.

The poll tax also had a significant impact on female turnout. For example, when Louisiana abolished its poll tax in 1934, the number of male voters increased by about 25 per cent. But the women’s vote nearly doubled. And when Alabama eased its requirement for paying prior poll taxes, survey data suggested that 57 percent of the new registrants were female.

One suggestion for why this is so is embedded in the Supreme Court’s only substantive decision addressing the Nineteenth Amendment, Breedlove v. Suttles. Nolan Breedlove challenged Georgia’s version of the tax, levied on all inhabitants of the state between the ages of 21 and 60, because it exempted women who did not register to vote. The Court, in a short, unanimous opinion, rejected his claim. With respect to the Nineteenth Amendment claim, the Court emphasized that requiring inhabitants to pay the tax did not deny or abridge the right to vote “on account of sex.” As a logical matter, the Court was correct: women who wanted to vote were not exempted; male and female voters therefore paid exactly the same tax.  But when the Court dispatched Breedlove’s Fourteenth Amendment argument—that the selective exemption of nonvoting women from the tax violated equal protection—it did so on the grounds that the exemption was rational: Imposing the tax on nonvoting women would add to the burden on their husbands —presumably because all the family’s assets were his to control.

 2.        Gender and Aggregation

Both suffragists and their opponents had long argued that the enfranchisement of women would change election outcomes.  The assumption was that women’s values differed materially from men’s and they would therefore support different candidates or vote differently on ballot propositions. But a year before the amendment was ratified, scholars William F. Ogburn and Inez Goltra figured out a technique for getting around the difficulty that “women’s ballots are not distinguished from those of men but are deposited in the same ballot box.” Their article presented the first known example of a technique that subsequently became a cornerstone of vote dilution cases: inferring individual behavior from election returns through statistical methods such as regression analyses.

Bearing out the common wisdom, the highest correlation coefficient they found involved an initiative to impose prohibition, where women were quite a bit more supportive than men. And throughout the interwar period, there were seldom statistically significant differences between male and female voters’ support for particular candidates or political parties—a contrast to the current gender gap.

3.         Gender and Governance

Throughout the interwar period, there was a huge disparity between the number of male and female elected officials. The dearth of female office-holders was not, however, directly attributable to continued legal restrictions on the election of women. Early on, it had been unclear what effect the Nineteenth Amendment would have on state laws that limited certain offices to “male citizens.” But most states concluded, as the New Hampshire Supreme Court put it, that “the rights of electing and being elected are equal,”  and therefore that sex-based restrictions on the former having being abolished by the Nineteenth Amendment, sex-based restrictions on the latter should fall as well. States therefore eliminated the restrictions through legislation, constitutional amendment, or judicial reconstruction of their statutes. But it was not until 1943 that Oklahoma became the final state to abolish all sex-based restrictions on office-holding. And the gap still has not been completely erased.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The sixth contribution is from Mark Alexander:

Campaigns rely on lawyers, although you rarely see them. In rare cases, the public hears about the efforts of campaign lawyers like Sidney Powell, John Eastman, and Rudy Giuliani, who tried to overturn the results of the 2020 election. These campaign lawyers made the news when they breached their ethical and legal duties, doing what campaign lawyers are not supposed to do. In most campaigns, campaign lawyers work behind the scenes. They have responsibilities that are wide-ranging, touching on both election-specific and more general legal matters.

The campaign lawyer focuses most of her energy on voters and ballots. This work begins in the early stages of a campaign. To ensure that a candidate’s name appears on the ballot, a campaign lawyer must often navigate arcane state and local rules. Once her candidate is on the ballot, the campaign lawyer must protect the campaign’s most valuable assets—a candidate’s supporters—by ensuring that they are registered to vote and have access to the polls. The campaign lawyer works most intensely in the time leading up to an election, must be available on Election Day, and the job now increasingly extends beyond Election Day as well.

The drama of the 2000 presidential election and the litigation leading up to Bush v. Gore brought campaign lawyers into our living rooms for the first time. In 2000, the winning presidential candidate needed to carry Florida, where a tiny fraction of the vote separated George W. Bush and Al Gore. Each day, the nation watched as local election officials tried to determine the intent of voters who used punch-card ballots to vote. The two sides’ campaign lawyers played a pivotal role in the drama. Eventually, the Supreme Court stepped in. In Bush v. Gore, the Court found that there is no individual right to vote for a presidential candidate. But it also said that if a state happens to grant this right, it must be protected. The Court held that a state’s election must be guided by consistent rules, and that Florida’s recount procedures lacked the minimal safeguards needed to treat voters equally. On this basis, the Court halted Florida’s recount, effectively determining the result of Florida’s election. Among other things, the drama leading to Bush v. Gore highlighted the important work that campaign lawyers do in advocating for their clients. 

These days, money is everything in campaigns. It pays for media, travel, staff, offices, and more. The campaign lawyer must ensure that a campaign follows the applicable contribution limits, expenditure rules, and disclosure regulations. It is the campaign lawyer’s job to make sure that a campaign’s funds are properly received, spent, and reported. In a world where independent expenditures have come to represent the lion’s share of election spending, campaign lawyers must also ensure that there is no coordination between the campaign and third-party spenders.

The campaign lawyer is a kind of legal acrobat. When she offers her knowledge of state and federal election law, as well as of constitutional law, she acts as a specialist. But beyond that, the campaign lawyer must also be a generalist. A campaign lawyer often reviews leases, drafts employment contracts, and secures intellectual property rights. Further, she is often called upon to provide general advice as an integral member of the candidate’s senior leadership team. She also often performs other miscellaneous tasks, like debate prep, policy planning, and fundraising.

My chapter for the Oxford Handbook of American Election seeks to situate the role of the campaign lawyer within our field’s growing literature. It argues that campaign lawyers are an integral part of the electoral process. Their work allows campaigns to function, voters to cast their ballots, and the public to have faith in our elections. Just as importantly, at the end of every campaign, the campaign lawyer must uphold her broader professional obligations and ethical duties to the country and the Constitution—regardless of who wins.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The fifth contribution is from Rebecca Green:

In the 2024 presidential election, the “election administrators’ prayer” was answered: wide margins in the vote count kept otherwise-readied lawyers and lawsuits at bay. After the tumult (to put it mildly) of the 2020 post-election season and plummeting public trust in outcomes that has metastasized since, many feared partisans at various levels of election administration would instigate turmoil in 2024. In the lead up to November 5, reports of bad faith mass voter challenges, planned commando-style poll watching, and certification refusals portended trouble.

But as I argued in my Oxford Handbook chapter, “Partisan Parity in U.S. Election Administration,” the U.S. system of elections is carefully designed to absorb—and purposely leverage—partisan passions. In 2024, the system not only worked, but it sparkled. Despite understandable departures of election officials from their posts following unprecedented threats and harassment since 2020, thousands of partisan election officials and observers across the country nevertheless took up their posts and ran towards the problem.

Indeed, American election administration is partisan by design—a feature, not a bug. Throughout this country’s history, election designers have advocated for populating U.S. election administration with rival partisans for a deeply American reason: our system relies on checks and balances of rival actors. Just as adversarialism plays a central role in the U.S. judicial system, U.S. elections embed rival partisan actors at every level to ensure transparent, accountable, and reliable results.

As my chapter documents, and I explore more fully in Adversarial Election Administration, every state in the country injects elections with rival partisans through partisan parity statutes. Despite reformers’ constant calls for “nonpartisan” election administration, it’s hard to see where truly nonpartisan actors might be found in a country in which partisan passions run deep. Instead, partisan parity statutes (variations of which have been in place for hundreds of years) are a means of putting partisan passion to work. Here, for example, is a partisan parity statute from Arizona:

There shall be an equal number of inspectors in the various precincts in the county who are members of the two largest political parties. In each precinct where the inspector is a member of one of the two largest political parties, the marshal in that precinct shall be a member of the other of the two largest political parties.

Even when one party may have the upper hand (for example, an election board with one Republican and two Democrats, or vice versa), the presence of a rival partisan nevertheless provides transparency, accountability, and even serves a moderating function.

The system is not perfect. As I describe in my chapter, partisan parity requirements suffer from a number of weak links. First, some states consolidate too much power in the hands of a single partisan election administrator. Second, geographic polarization—towns, cities, and whole states dominated by a single party—makes recruiting rival partisans to staff elections in many areas of the country quite difficult (more data would be helpful to learn just how difficult). And third, partisan parity requirements assume that rival partisans will act in good faith. When partisan actors refuse to follow the law or otherwise seek to undermine elections, adversarial election administration cannot function as designed.

These caveats aside (unless significant evidence emerges to the contrary in the next several weeks), we can rejoice that election administration did not headline in this year’s presidential election. Even though wide margins, not partisan parity requirements, can be credited this time around, Republicans and Democrats across the country fulfilled their vital role of impartially administering this election, doing their part to ensure open access to every eligible voter and—just as importantly—keeping each other in check.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The fourth contribution is from Nick Stephanopoulos:

I wrote this chapter on partisan gerrymandering for the Oxford Handbook of American Election Law that Gene Mazo wonderfully edited. The first half of the chapter summarizes federal and state cases about gerrymandering as well as (proposed) federal and (actual) state anti-gerrymandering reforms. In my view, the numerical bias threshold that was the linchpin of the Freedom to Vote Act’s anti-gerrymandering strategy in early 2022 hasn’t gotten enough attention. Senate Democrats were just two votes short of eliminating the filibuster and passing the Act, which would have drastically curbed gerrymandering at the congressional level. Here’s the relevant paragraph from the chapter:

The key point about this approach is that it’s mechanical. It relies on quantitative cutoffs, not qualitative judgments about when partisan intent or partisan effect be­come excessive. The FTVJRLA would thus have ensured (as much as any law could) that judicial ideology would be immaterial and congressional plans in all states would be evaluated identically. To illustrate, a pair of scholars applied the FTVJRLA’s test to twenty- three congressional plans. In each case, they were able to conclude defini­tively whether the plan would have been presumptively lawful. (Unsurprisingly, most plans enacted by legislatures would have been invalid, while most commission- drawn plans would have been okay.) Such analysis is entirely infeasible for conventional anti- gerrymandering criteria due to their broad language and need for subjective assessments. In contrast, anyone armed with a few data points can almost instantly de­termine a plan’s status under the FTVJRLA’s test. This automaticity doesn’t make the test preferable to the FTPA’s structural reform. But it does make the test a compelling option if, for whatever reason, redistricting can’t be assigned to commissions.

The second half of the chapter turns to four academic debates about partisan gerrymandering: (1) should partisan intent or partisan effect be the focus of anti-gerrymandering efforts; (2) should partisan effect be conceptualized in absolute or relative terms; (3) to what extent are district plans’ biases driven by par­tisan as opposed to nonpartisan factors; and (4) how does partisan gerrymandering affect the operation of democracy. As I think critics of gerrymandering overly focus on votes and seats, I’ll highlight the passage on the practice’s broader negative impacts. These impacts extend to legislative representation and, ultimately, the policies that shape our lives.

With respect to representation, ideological scores now exist for legislators, calculated using their voting records. These scores can be paired with absolute measures of par­tisan effect to determine how gerrymandering influences the ideological composition of legislatures. The results of this analysis are stark. The more biased a state legislature or congressional delegation is in a Democratic (or Republican) direction, the more lib­eral (or conservative) is the median legislator. At the congressional level, in a perfectly divided state, the median House member is moderately liberal if a Democratic gerry­mander has been adopted, and highly conservative if a Republican gerrymander is in effect. To be sure, these findings are driven by both gerrymandering and legislative polarization. Gerrymandering yields more legislators from the mapmaking party. And contemporary polarization means these extra legislators are highly likely to be liberals if they’re Democrats and conservatives if they’re Republicans. But even if gerrymandering didn’t distort representation as much in an earlier, less polarized era, that’s no longer our world. In modern American politics, gerrymandering has the power to give a moderate electorate either a liberal or a conservative legislature, depending on which party draws the lines.

Gerrymandering also has the power to give a moderate electorate either liberal or conservative policies. Legislatures, well, legislate. They pass bills, and if the executive approves, those bills become law. It thus stands to reason that legislatures skewed to the left (or the right) by Democratic (or Republican) gerrymanders bring about the enact­ment of more liberal (or conservative) policies. Sure enough, that’s exactly what the data show. More pro-Democratic (or pro-Republican) state legislative plans are linked to more liberal (or conservative) sets of state laws. The more tilted a state legislative plan is, the less likely state policy is to match the preferences of the state population. Such congruence between public policy and public opinion is a basic indicator of democratic health. Gerrymandering causes this indicator to flash bright red.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The third contribution is from Sarah Haan:

The corporation’s role in campaign finance is among the most hotly contested and politically charged issues in American election law. The United States Constitution is silent on the subject—and on the broader topic of corporate constitutional rights. Public opinion data suggest that a majority of Americans are concerned about the effect of corporate electoral spending on democracy and would like the law to impose greater restrictions. Since the 1970s, however, the law has moved against public sentiment, as judicial opinions have cited the First Amendment to erode existing restrictions on corporate campaign finance. This trend hit a high mark in 2010, when the U.S. Supreme Court decided Citizens United v. Federal Election Commission, deregulating corporate and union independent expenditures. Remarkably, corporate spending on elections did not swamp campaign finance in the wake of that case, but transparency problems continue to obscure our understanding of the impact of corporate spending on the political process.

Critics have highlighted the wealth-generating and organizational advantages that corporations possess as a matter of legal design, arguing that these features skew the democratic process when they are used to finance elections. The corporate form embodies legal features, such as limited liability and perpetual life, that make it uniquely capable of aggregating and deploying wealth. Corporate capitalism is constantly undergoing change, and this impacts the capacity for corporate political spending to shape or distort politics. For example, recent years have seen the rise of “regulatory entrepreneurship,” in which a startup company pursues a business model that violates existing law, and thus must begin its existence by raising capital for the purpose of changing the law. The emergence of autonomous business entities— businesses that are governed by self- executing algorithms, and may have no human involvement beyond the person who originally created the algorithm— sharpens the distortion concern. If a corporation can operate with no human participation, in perpetuity, can its efforts to influence electoral outcomes be democratic in any mean­ingful sense?

Since the 1940s, American law has treated unions and corporations with “rough paral­lelism” regarding political spending, by regulating the campaign finance of both kinds of organizations similarly, and by analyzing them on equivalent terms in First Amendment cases. Yet unions and corporations are different in important ways. Corporations exist to generate profits, while unions earn no profits. The general treasury of a business corporation is funded by its productive activities and by the capital it raises through debt and equity financing, while the general treasury of a labor union is funded by union dues collected from workers.

For years, however, the Supreme Court has interpreted the First Amendment to require opt-out rights for workers in relation to union political spending, but not for shareholders in relation to corporate political spending. The asymmetry deepened in 2018, when the Roberts Court decided Janus v. AFSCME— a case that overruled precedent to sharply curtail “subsidization” of union speech by agency fees paid by nonmembers. Janus has revived a debate over compelled economic association. As critics note, a number of participants in business corporations, including shareholders, could be said to “subsi­dize” the corporation’s wealth-generating activities, and thus, under the logic of Janus, its political speech. After Janus, the constitutional treatment of union political spending appears to be diverging from the treatment of corporate political spending in ways that impose greater comparative burdens on union speech.

In Citizens United, the Supreme Court portrayed transparency as a cor­ruption cure-all; the high value of disclosure was the one thing most of the Justices could agree on. The Justices seemed to imagine a world in which disclosure would only improve, capitalizing on advances in internet-based technology and perhaps even producing something like real-time disclosure of cor­porate expenditures. The optimism of these assumptions now looks quaint. With signs that disclosure laws stand on less firm ground today than they did in 2010, and given the significance of “dark money” in U.S. elections, it remains an urgent project for scholars to measure and analyze the impact of corporate spending on the electoral process.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The second contribution is from Robert Yablon:

Election cycle after election cycle, money in politics grabs headlines. We see reports of record-breaking spending levels, the largesse of billionaire megadonors, surging dark money, and more. Academic commentary on the campaign finance system similarly abounds. But public and academic discourse has generally devoted less attention to the booming industry that raises, deploys, and pockets ever growing sums of campaign cash.

My chapter in The Oxford Handbook of American Election Law—“The Campaign Industry”—describes and assesses our nation’s system of campaign capitalism. I’m grateful to Gene Mazo for his interest in covering this understudied but important topic—and for his truly extraordinary work as the Handbook’s editor. My chapter builds on a law review article I wrote several years ago entitled “Campaigns, Inc.” (This also happens to be the name of the nation’s first dedicated political consulting business, which was founded in California ninety years ago).

I define the campaign industry broadly to include both the staffers who work for campaign organizations and the many consultants and vendors who work with campaign organizations from the outside. Together, these actors handle a panoply of tasks, including fundraising, communications, digital strategy, data management, direct mail, polling, field operations, and legal compliance. Though pay for staffers is often modest, consulting work can be highly lucrative. For example, more campaign money is spent on mass advertising than anything else, and the media consultants who handle ad buys can earn multimillion dollar commissions. Other professionals can likewise receive hefty payouts. According to one tally, federal campaign entities spent more than $275 million on fundraising consultants alone during the 2022 election cycle. In recent election cycles, campaigns have similarly paid data brokers tens of millions of dollars. And the industry has seen an influx of venture capital investments in campaign tech start-ups that aim to swing elections while also turning a profit.

The story of the U.S. campaign industry is very much an election law story. The industry’s scale and structure is an outgrowth of how we organize electoral politics and regulate campaigning. Numerous legal developments spanning many decades—from patronage bans to primary elections to direct democracy—disrupted traditional party-centered electioneering and paved the way for today’s campaign entrepreneurs. Meanwhile, the pathways that law and doctrine provide for large sums of money to flow into the electoral system support a robust market for campaign services and create attractive business opportunities. Vehicles such as Super PACs have been a particular boon to the industry since they are typically set up and run by campaign professionals.

The relationship between the election system and the campaign industry is a two-way street: The system shapes the industry, and the industry shapes the system. Campaign professionals play a role in identifying and recruiting candidates and can help validate them by joining their campaigns. Campaign professionals shape campaign strategy and messaging, and their economic incentives may lead them to push certain tactics, such as aggressive fundraising and commission-generating mass advertisements. And campaign professionals can influence policy and governance, not only by encouraging candidates to embrace certain positions or priorities during the campaign, but also by following successful candidates into government, or by using their campaign relationships to gain access and lobby officials.

For those dissatisfied with the state of our electoral politics, industry-related reforms may hold appeal. One set of reform options might take aim at industry excesses and misdeeds. Consider a few possibilities: First, self-dealing is a recurring issue, with staffers and advisors directing campaign business to firms in which they or their families (or candidates or their families) have an economic stake. Reformers could seek to limit such transactions or at least require greater transparency. Second, and relatedly, while current law bars candidates from using campaign contributions for personal expenses, it does not place a similar constraint on those who run Super PACs—a loophole the FEC has already recommended closing. Third, some campaigns have been skirting expenditure reporting rules by funneling large sums to opaque entities that then spend the campaign’s money without revealing where it is going. Disclosure rules could be tightened to require information about downstream payments to sub-vendors and others. Fourth, one could imagine extending to campaign professionals the sort of anti-revolving door rules that limit lobbying by recent government employees. Various measures along these lines have already been adopted in some states and localities.

More ambitiously, reformers could strive to reorient electioneering away from the professionalized, capital-intensive model that now predominates. Given current First Amendment doctrine, restricting the flow of money into the system is unlikely to be a viable option. But one could imagine reforms that aim to alter the locus of campaign activity, such as by seeking to reinvigorate political parties and civic associations at the local level in order to cultivate more bottom-up, grassroots-oriented modes of campaigning.

While the chapter sketches out some reform possibilities, it does not advocate any particular course of action. Instead, its primary goal is to simply to encourage academics, legal practitioners, and the broader public to reckon more fully with the campaign industry’s consequential role in our election system.

I am very pleased to welcome to ELB Book Corner several contributors to The Oxford Handbook of American Election Law (Eugene D. Mazo ed. 2024). The 30% discount code for ELB readers is ALAUTHC4. The first contribution is from Anthony Gaughan:

When courts consult history for guidance in election law cases, judges and litigants usually focus on three time periods: the drafting of the Constitution in 1787, the adoption of the First Amendment in 1791, and the adoption of the Fourteenth Amendment in 1868. But many of the most important attributes of twenty-first century American election law trace back to election practices that predated the Constitution. During the 180 years between the founding of the Jamestown Colony in 1607 and the Constitutional Convention of 1787, American elections developed distinctive features that can still be found in state and federal elections in the United States. 

Elections in colonial America took place on the periphery of the British Empire. The American colonies represented the crown jewel of Britain’s overseas empire in the seventeenth and eighteenth centuries. But as subjects of the British crown, American colonists lacked political independence. The colonies did not even elect representatives to Parliament. Nevertheless, to a remarkable extent, voting and elections became a vital part of life in the American colonies. By the time of the imperial crisis in the 1760s and 1770s, the concept of self-government was deeply rooted in American political culture.   

A remarkable variety of voting systems characterized colonial and Revolutionary elections. The 3,000 miles of ocean that separated Britain from its American colonies—and the hundreds of miles of coastline that separated the colonies from one another—promoted the development of unique and diverse election features. Colonial legislatures developed a wide range of approaches to voter and candidate qualifications, voting methods, election scheduling, term lengths, and a host of other election laws and procedures. The decentralized nature of colonial elections remains a central feature of American election law.    

Nevertheless, some common themes emerged in early American elections. The voting process matured rapidly in the eighteenth century. Election rules and voting innovations that took hold in one colony often spread to others. Most important of all, the Americans developed a concept of representation that diverged sharply with that of the mother country. By the time the colonists declared their independence from Britain in 1776, a distinctively American approach to voting and elections had emerged in North America.

The evolution of colonial voting practices coincided with the maturation of American political culture. From primitive beginnings in the early 1600s, colonial elections grew to become a distinguishing feature of American life. Voter participation in the colonies exceeded that of any other country in the world in the eighteenth century, including Britain itself. The extraordinary diversity of colonial election laws reflected the independent and innovative nature of eighteenth century American political culture. At the same time, colonial elections fell far short of modern conceptions of democracy. Only a minority of the colonial population—adult white men of property or wealth—possessed suffrage rights. Nevertheless, colonial elections established patterns of local control that endure to the present day. In the centuries after 1776, American democracy expanded to include all adult citizens regardless of race, religion, or gender. But the colonial era’s emphasis on election administration by local officials has remained deeply entrenched in the nation’s political culture. In developing election rules that suited their local conditions, colonists showed an extraordinary confidence in their capacity for self-government. As the American Revolution demonstrated, the British government did not grasp until too late how profoundly colonial political culture had diverged from the political culture of eighteenth century England.