Bolstering Faith with Facts: Supporting Independent Redistricting Commissions with Automated Redistricting Algorithms, 109 CAL. L. REV. (2021) (symposium) (forthcoming).

     While the Supreme Court’s decision in Rucho v. Common Cause dashed hopes that federal courts would halt egregious partisan gerrymanders, the Rucho litigation showcased what will become a key player in redistricting reform: automated redistricting algorithms. Indeed, in state court decisions striking down partisan gerrymanders in Pennsylvania and North Carolina, judges relied heavily on expert discovery derived from automated redistricting algorithms: large numbers of viable maps based on the same underlying political geography that serve, collectively, as a baseline against which to measure the political bias of the challenged map. The prominence of automated redistricting algorithms in past and future partisan gerrymandering litigation (in state courts) makes clear that these algorithms are here to stay. The only question is what role they will play.

     This Article suggests that automated redistricting algorithms and independent redistricting commissions are complements, not substitutes.  Independent redistricting commissions are a process-based solution (addressing how maps are drawn) to the problem of unfair political outcomes (gerrymandered maps). The appeal of a process-based solution is clear: at the rotten core of the redistricting process is the non-transparent map-drawing process conducted by self-interested political actors.  Independent redistricting commissions reform the redistricting process by changing the personnel and therefore the procedure: they swap out self-interested politicians for independent individuals. The hope is that with independent personnel at the helm of the redistricting process, fairer maps are produced.

     But the experience of states that adopted independent redistricting commissions early shows that the hope for reform depends on popular faith that commissioners are truly independent of partisan interests. The need for such faith leads to unreasonable standards of purity from partisan affiliations. When the public discovers that commissioners have partisan affiliations, even at several degrees of separation, independent redistricting commissions experience a crisis of confidence. And in states with independent redistricting commissions that explicitly account for partisanship of their commissioners, it is hard to avoid the perception of partisan politics-as-usual. Independent redistricting commissions are thus caught between too much idealism and too much cynicism.

     These issues suggest that for redistricting reform to succeed in the long run, we need not only trusted redistricters but also reliable ways of assessing the performance of our redistricters. In short, we must strengthen process-based reforms like independent redistricting commissions with outcome-based evaluations—and automated redistricting algorithms can provide those evaluations.

Native American Representation in the Next Decade, 55 IDAHO L. REV. (2020) (symposium) (forthcoming).

     In the face of extreme polarization, it is unsurprising that public concern over distortions in political representation has focused on partisan distortion.  Recent unsuccessful attempts to persuade the Supreme Court to set out manageable standards for adjudicating partisan gerrymandering claims are only the most recent example.  The Supreme Court’s that it will not involve federal courts in challenges to partisan gerrymandering should reminds us that the primary legal protections for the right to vote, both in the Reconstruction Amendments and in the Voting Rights act, concern racial equality in voting.

     This reminder is a timely one.  On the cusp of a new redistricting cycle, we must ask what progress can and should be made towards the goal of racial equality in representation.  And this question should be asked specifically for Native voters. Native American voters are too rarely the focus of either policy or scholarly discussions.  It is critical that the twin questions posed by this symposium –where are we now? and where might we be?—be asked of Native representation.

     Seizing the opportunity presented by this Symposium, this Article considers the ongoing dilution of Native votes and the slim chances that the legal system will adequately protect against them in the upcoming round of redistricting.  Because redistricting happens only once every decade, missed opportunities for racial equity in political representation are especially frustrating.  This Article considers what opportunities exist and what barriers stand in the way of seizing them.

New Tricks for an Old Dog: Felon Disenfranchisement and Voter Confusion, 85 MO. L. REV. 1037 (2019) (symposium).

 

     Felon disenfranchisement laws do not just disenfranchise.  They also confuse.  By imposing heavy penalties for failing to correctly navigate complex provisions, these statutes confuse eligible voters and discourage them from exercising their right to vote.  In this way, felon disenfranchisement laws resemble modern voter suppression laws: they deter eligible voters from voting.  Modest reforms can and should be implemented to affirmatively inform formerly incarcerated individuals of their restored voting rights. 

Our Fellow American, the Registered Sex Offender, 2016-2017 CATO SUP. CT. REV. 59 (with David T. Goldberg) (reflections on litigating Packingham v. North Carolina, 137 S. Ct. 1730 (2017)).

A Reasonable Bias Approach to Gerrymandering: Using Automated Plan Generation to Evaluate Redistricting Proposals, 59 WM. & MARY L. REV. 1521 (2018) (symposium) (with Bruce Cain, Wendy Tam Cho & Yan Liu). 

Blurred Lines: Conjoined Polarization and Voting Rights, 77 OHIO ST. L. REV. 867 (2016) (symposium) (with Bruce Cain).

     Considerable evolution in American political party coalitions threatens to undermine the gains that minorities have made in political representation and participation. Since the migration of Southern white conservatives to the Republican Party, party identification has become more consolidated and consistent. As the parties have become more distinct from each other, they have also become more internally ideologically consistent. This assortative political sorting has been accompanied by the strengthening of racial partisan identification, leading to a conjoined polarization of party, ideology, and race. Conjoined polarization complicates and undermines the efforts of an earlier time to protect minority voting rights, most notably through the passage of the Voting Rights Act. This Article evaluates the effect of conjoined polarization on two main kinds of litigation under the Voting Rights Act: redistricting and election administration. Conjoined polarization aligns political contestation along racial lines. All attempts to manipulate the political process—through drawing gerrymandered district lines or erecting barriers to vote—will have decidedly racial consequences; yet, existing doctrine is either ill-equipped, or ill-defined to address them. Section 2 of the Voting Rights Act and the Supreme Court’s racial gerrymandering jurisprudence will struggle to reign in partisan gerrymandering in the 2020 redistricting cycle. And the protection of minority voting rights in election administration will depend on the ability of courts to translate section 2’s protections developed in vote dilution cases to vote denial cases.