Questioning Questions in the Law of Democracy: What the Debate over Voter ID Laws' Effects Teaches About Asking the Right Questions, 69 UCLA L. REV. (2022) (forthcoming).

     Voter identification laws, laws that require voters to present identification when voting (“voter ID laws”), first launched the modern Voting Wars.  After the Supreme Court blessed Indiana’s voter ID law in Crawford v. Marion County, voter ID laws proliferated across the country.  Their prevalence belie their notoriety.  They remain one of the most hotly contested election laws and are often referred to as a voter suppression law, if not the modern voter suppression law.

     While these laws first served as a rallying cry for the election law/law of democracy community, they have become a sore spot—even a pain point—for what is historically a collaborative and close community of social scientists, lawyers, and legal scholars.  Many social scientists have come to conclude that voter ID laws have had negligible effects, if any, on voter turnout.  That conclusion may seem surprising—even difficult to believe—given how many eligible voters lack IDs. And that surprising conclusion has raised uncomfortable questions about whether the progressive legal alarm over voter ID laws—including litigation challenging those laws—was warranted.

     By harmonizing the causal social science literature and descriptive evidence unearthed in the course of litigation, this Article is the first to offer an account of why empiricists have consistently failed to detect a turnout effect from voter ID laws.  Upon investigation, what is surprising is not that a turnout effect has not been detected, but why an effect should have been expected in the first place. Evidence from litigation suggests that more than 99% of registered voters who habitually vote may have the requisite ID for voting, even though large numbers of eligible (but not registered) citizens lack IDs.  It is therefore unsurprising that the best causal studies suggest that voter ID laws decreased turnout (i.e. voting conditional on registration) by no more than 2%.  Those studies should not have expected any other result: existing causal studies sought to detect an effect that descriptive evidence did not support.  Thus, the discord in the literature results not from the sidelining of important causal findings, but rather from the lack of interaction between the causal academic literature and litigation-derived descriptive evidence.

     Resolution of the debate on the turnout effects of voter ID laws has far-reaching implications for the election law community.  For legal scholars in particular, it highlights important responsibilities in maintaining the interdisciplinary relationship with social scientists.  The traditional notion of the interdisciplinary relationship between empiricists and lawyers in the field of election law/law of democracy is one of answering questions and questioning answers: social scientists offer empirical answers to questions posed by lawyers, and lawyers in turn question the relevance, importance, and weight of the empirical answers provided by social scientists. Resolution of the debate over voter ID laws’ effects suggests that election law scholarship should also question questions: lawyers should not only question the empirical answers that social scientists offer, but also their hypotheses and methods in reaching those answers.

     The voter ID debate supplies two additional examples of questions worth questioning.  First, is the estimated effect big or small? Social scientific assumptions in interpreting empirical effect sizes do not hold for legal evaluation.  While social scientists are interested in comparing the explanatory force of election laws against all other drivers of turnout, legal interest is limited to how an election law compares to other laws.  Second, is the law in question a voter suppression law?  In assuming that laws that do not depress turnout are not voter suppressive, social scientists confuse vote suppression with voter suppression.  Understanding an election laws’ suppressive effects solely through turnout evidence ignores burdens that voters take on to comply with onerous laws, as well as mounting barriers that further discourage disaffected individuals from voting.

Questioning questions also helps clarify doctrine.  I consider how courts hearing challenges to voter ID laws have applied—and mis-applied—turnout evidence in conducting the burden inquiry in the Anderson/Burdick standard governing federal constitutional protections for the right to vote. Anderson/Burdick standard balances the burdens imposed by the challenged law on the right to vote against the state’s justification for the law.  Causal evidence of turnout effects is a clearly efficient—but also radically incomplete—measure of burdens on the right to vote.  Conceptual clarity of both what turnout estimates measure and what doctrine asks ensures not only that all relevant evidence is presented and considered in voting-rights cases, but also that the social science literature is better positioned to produce doctrinally responsive research.

Voting Rights Lawyer in Crisis, 24 CUNY L. REV. (2021) (forthcoming).

 

     “In crisis” can both mean during crisis or in a state of crisis. This Article is about voting rights lawyering in reference to both of those meanings: voting rights lawyering during the Covid-19 pandemic reveals voting rights lawyering in trouble. Even before the pandemic, legal commentators and experts have sounded the alarm about dwindling legal protections for voting rights in the United States. Suppressive voting laws have been repeatedly upheld; structural reform litigation of election administration has become virtually nonexistent. That even lawsuits brought to make the vote accessible during a historic pandemic were met with much resistance and little success only highlights how much trouble voting rights litigation is in. The traditional notion of voting—waiting in line to cast a ballot in-person on Election Day—could not be maintained for a pandemic election. Doing so would not only force voters to make an unreasonable risk calculus about whether to vote, but also pose a public health risk of increasing community transmission. And yet for every jurisdiction that made some necessary adjustments to the preexisting electoral regime in light of the pandemic, there seemed to be another that failed to do so. Voting rights groups brought cases seeking necessary but modest accommodations, for instance to ensure that vulnerable individuals had access to curbside voting opportunities or to clarify requirements for expanded absentee voting. That these cases largely resolved in favor of jurisdictions that, in spite of the pandemic, refused to make necessary changes to their election administration only goes to show how hard it is to challenge election laws. Current election law doctrines do little more than rubber stamp state electoral regimes, even when state election laws are not supported by valid justification or even impede voters’ ability to exercise the franchise.

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

     Redistricting has seen progress in two seemingly distinct areas. On the technology side, a quantum leap in the development and maturation of redistricting algorithms has made it possible to generate and analyze large numbers of random, simulated districting plans that satisfy stated redistricting criteria. Analysis based on these algorithms and the simulated maps they drew was prominently featured in the last round of partisan gerrymandering litigation in federal courts. While those challenges did not succeed, the analytical contribution afforded by algorithms made it clear that these algorithms will play a prominent, if not starring, role in future redistricting reform. On the institutional side, independent redistricting commissions have emerged as the model reform for the fair maps movement. Yet their popularity belies vulnerabilities. Inability to ensure the independence of citizen commissioners threatens the legitimacy of redistricting commissions.

     This Article argues that there is synergy to be gained from joining these two areas of progress. It proposes incorporating redistricting algorithms into independent redistricting commissions’ work. The evaluative function that the algorithms performed in the course of litigation—of what might be rational and expected redistricting outcomes given political geography—can be readily adapted for independent redistricting commissions. The availability of an external method of evaluating the work product of commissions takes pressure off the ever escalating yet never foolproof strategy of testing the political purity of citizen commissioners.

     Moreover, redistricting algorithms can perform other functions to improve the work of independent redistricting commissions. The algorithms can serve as a tailored redistricting teaching aid to citizen commissioners, locate otherwise hard-to-find maps that optimize neutral redistricting criteria, and identify necessary trade-offs in time for them to be addressed. The future of redistricting reform depends on whether and how we pair institutional design with technological innovation.

Native American Representation in the Next Decade, 56 IDAHO L. REV. 323 (2020) (symposium).

     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.