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.