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Publication Date

2018

Abstract

INTRODUCTION I am going to be discussing an ongoing project of mine that I call hyperpartisan election law. I make three main arguments in this project. The first is that almost all of election law was created during an unusually nonpartisan period in the 1960s, 1970s, and 1980s. Consistent with this period's very low level of partisanship, election law originally did not intend to, and did not actually have the effect, of addressing partisan cleavages. The second claim is that as the country's voters and politicians have become ever more partisan over the last generation, election law has adapted in two distinctive ways. One, by sometimes going into dormancy, and so not being available for litigants. Two, by being redirected to enable it to tackle partisan grievances, only indirectly rather than directly. The third claim is that neither of these two responses by election law are really apt for our hyperpartisan modern moment. It would be a lot better, in my view, for election law to tackle partisan intent and partisan effect directly rather than indirectly. I will try to convince you that American political history has gone through three main phases. First, a long period, up through the 1950s, when voters and politicians were nearly as partisan as they are today. Two, a very unusual era-in the 1960s, 1970s, and 1980s-when both voters and politicians were much more nonpartisan. Third, another stretch occurs from the 1990s to today, when the partisanship of both voters and politicians has risen to unprecedented heights. Next, I will go through four separate redistricting doctrines: one-person, one-vote; racial vote dilution; racial gerrymandering; and partisan gerrymandering, and try to show how each one corresponds to my thesis. My thesis, again, is that election law used to make sense during the more nonpartisan period in which it was formed, but its old doctrines are an increasingly bad fit for our hyperpartisan present. In the broader project I try to address all of election law, but because the symposium is on redistricting I will only talk about redistricting today.

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