“Shadow disticts”

Quinn Yeargain has written this article for the Cardozo Law Review. Here is the abstract:

Redistricting disputes—for congressional, state legislative, and local districts—have proven all-consuming in politics. Litigation over the legality of districts, under both federal and state law, is near constant when decennial redistricting occurs. But largely omitted from redistricting litigation and scholarship, however, are the districts drawn to elect members of statewide boards. These boards have outsized authority over some of the most salient disputes in politics today, with state boards of education setting policies for what can be taught in classrooms and how LGBT students are treated by the public education system, public utility commissions adopting policies for renewable energy production and decarbonization, and executive councils playing a key role in checking the powers of state governors.

Despite the significant policymaking authority of these boards, the districts used to elect them are all too frequently ignored during decennial redistricting. Partisan gerrymandering claims are increasingly brought against congressional and state legislative districts, but hardly ever against state board districts. Racial justice groups frequently push for the creation of new minority-opportunity districts for Congress, state legislatures, and even municipal bodies, but hardly ever for state boards. And in some cases—most notably, Mississippi and Montana—these districts haven’t been redrawn at all.

In this Article, I argue that the omission of state boards from redistricting litigation and conversations is a grave failure of democracy. I explore how representational progress in state democracy has largely left state boards elected by district behind. To do this, I build out a full legal history of these boards, drawing on my own comprehensive database of state elected offices, which tracks every creation, abolition, and redistricting of state boards from 1776 to the present. I map the inauguration of the one-person, one-vote standard by the U.S. Supreme Court and explore its lackluster application in the context of state boards, revealing federal and state litigation that has never been discussed in legal scholarship.

Ultimately, I argue that the omission of state boards from redistricting litigation and conversations represents not just a serious neglect of the one-person, one-vote standard, but a missed opportunity for racial justice and equity. The mismatch between districts and representation has resulted in gerrymandered boards setting policies in important areas—with little claim to democratic legitimacy. At a time when public schools are in the crosshairs of culture wars, and when communities of color are demanding environmental justice, the unaccountability of the state institutions responsible for setting educational and environmental policies is problematic.

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