Wilfred Codrington has posted this draft on SSRN (forthcoming, Kentucky Law Journal). Here is the abstract:

Together with the decennial Census, the reapportionment and redistricting processes comprise the most integral components for ensuring appropriate representation in the U.S. system of government. The importance of the law governing these enterprises cannot be overstated, but neither can its complexity. In a multiracial, multicultural society that largely relies on geography as the basis for representation, it is essential that relevant legal doctrines embody democracy’s preeminent ideals like fairness, inclusivity, accountability, and effectiveness to guarantee that public officials truly reflect the people and operate on their behalf. Professor Anthony Gaughan seems to get this, as demonstrated in his article, Redistricting in the Political Thicket: The Ghosts of Colegrove v. Green. Gauging from its approach to an array of legal challenges arising from these constitutionally-mandated endeavors, however, it seems like the Supreme Court does not. As this Article argues, the Court consistently adopts positions that fail to capture the imperative for principle to guide in this critical area of law.

This Article’s aim is to accomplish a few things. It first responds to Gaughan, who employs a “ghosts” metaphor to tease out some core lessons from Colegrove v. Greene, which was ultimately reversed in the series of cases promulgating the rule of one-person, one-vote. Throughout the response is a critique of the Court’s rulings in the landmark cases Purcell v. Gonzalez and Rucho v. Common Cause, as well as its handling of (and awaited ruling in) Allen v. Milligan and Moore v. Harper. In synthesizing these cases, this Article argues that the modern Supreme Court is not guided by principle in matters that literally shape our democracy but seeks to advance ends that are in tension with a healthy political process. Finally, on the assumption that the Court will continue to fail us in this area of law, this Article concludes with a broad overview for a political response to the problems—which is the best way forward.