Articles & Essays

Electoral Maintenance
Boston University Law Review, vol. 103, no. 7, pp. 2199-2213 (2024)

    → Response to Michael Morse, Democracy's Bureaucracy: The Complicated Case of Voter Registration Lists,
        Boston University Law Review, vol. 103 (2024)

Abstract | Paper

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy's Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition to his descriptive account of the novel way that states have cooperated to perform list maintenance, Morse’s analysis provides a window into three pathologies of America’s election administration more generally. First, the mechanics of elections directly implicate the fundamental right to vote, raising questions how stringently these procedures should be evaluated by courts. Second, political interference in the administration of elections can flip representative government on its head by insulating elected officials from political accountability and making elections less secure. Finally, several challenges related to the administration of elections are rooted in our electoral system that narrowly links geography and political representation. Relaxing this link may foster a more effective, responsible, and inclusive system of government.

The Impact of Associational Ties on the Financing of Super PACs
(with Jennifer A. Heerwig, Paul S. Herrnson & Jay Goodliffe)
Interest Groups & Advocacy, vol. 13 (forthcoming 2024)

Abstract | Paper

Super PACs are relative newcomers to American politics. Unlike most participants in federal elections, super PACs can make independent expenditures using funds raised in unlimited amounts from individuals as well as corporations, labor unions, and other organizations. Using a new dataset, we compare the financing of super PACs to the financing of traditional PACs and we identify the economic and political sectors most prevalent among super PACs and their donors. Our findings demonstrate that with important exceptions, economic or political associations typically have a positive impact on the likelihood an individual or organizational donor will contribute to a super PAC and the amount of the contribution. However, business donors reserve their largest contributions for non-business super PACs, and party-connected and ideological donors routinely support super PACs in either sector. The results indicate that the relationships between super PACs and their contributors are more complex than previously understood.

Redistricting's Ultimate Antidote
Kentucky Law Journal, vol. 111, pp. 719-732 (2023)

    → Symposium: "Drawing the Lines: Redistricting After the 2020 Census"
    → Response to Edward B. Foley, Self-Districting: The Ultimate Antidote to Gerrymandering,
        Kentucky Law Journal, vol. 111 (2023)

Abstract | Paper

Critics of America’s redistricting process frequently harp on two foundational issues: how the lines are drawn and who gets to draw them. In one provocative article, Professor Ned Foley proposes a solution that addresses both issues, potentially solves the problems of partisan and racial gerrymandering, and empowers a new generation of engaged, educated, and dynamic voters. The catch? Foley’s proposal of self-districting is so outside-the-box that some readers might dismiss it out of hand. To do so would be a mistake. Even if self-districting doesn’t live up to its billing as the “ultimate antidote to gerrymandering,” the very thought experiment prompts us to think hard about who we are as a people, what kind of democracy we want to live in, and how much (if at all) geography matters for politics in the current age of information and mobility. Furthermore, self-districting is a reminder that different groups of people will (and should!) take turns pulling the levers of government over time, and that election losses and concessions are the heartbeat of a healthy democracy.

Blind Justice: Algorithms and Neutrality in the Case of Redistricting
CSLAW'22: Proceedings of the Symposium on Computer Science and Law, pp. 101-108 (2022)
(with Moon Duchin)

Abstract | Paper

In several areas of law and public policy, there have been longstanding dreams that computers can secure decisionmaking that takes only some things into account, while remaining demonstrably neutral to other factors. In 2022, the U.S. Supreme Court seems poised to mandate race-neutrality in multiple domains, notably in college admissions and redistricting. In this piece, we clarify the real and imagined uses of computers in redistricting, considering their employment for optimization approaches and, more recently, for representative sampling. The current pitch to the Court for a race-blind Voting Rights Act is discussed at length.

Voter Data, Democratic Inequality, and the Risk of Political Violence
Cornell Law Review, vol. 107, no. 3, pp. 1011-1066 (2022) (with Bertrall L. Ross II)

    → Reprinted in Knight First Amendment Institute's Online Symposium: "Data & Democracy"
    → Distinguished Scholarship Award in Election Law Honorable Mention (AALS Election Law Section)

Abstract | Paper

Campaigns' increasing reliance on data-driven canvassing has coincided with a disquieting trend in American politics: a stark gap in voter turnout between the rich and poor. Turnout among the poor has remained low in modern elections despite legal changes that have dramatically decreased the cost of voting. In this paper we present evidence that the combined availability of voter history data and modern microtargeting strategies have contributed to the rich-poor turnout gap. That is the case despite the promises of big data to lower the transactions costs of voter outreach, as well as additional reforms that have lowered the barriers to voting in other ways. Because the poor are less likely to have voted in prior elections, they are also less likely to appear in the mobilization models employed by data-savvy campaigns.

In this Article, we draw on a novel dataset of voter data laws in every state and show that turnout rates among the poor are lower in states that disclose voter history data to campaigns. We also find that after states change their laws to provide voter history to campaigns, these campaigns are far less likely to contact the poor.

The consequences of this vicious cycle are already known: the unique interests of the poor have been entirely unrepresented in the political process. Such political marginalization and alienation of an entire class from the democratic process is not only a problem for the poor; it poses a systemic threat to political moderation and democratic stability. Politically marginalized and alienated groups may resort to non-political means to effectuate social change and may also become ripe for recruitment by extremist and anti-democratic elements that are latent in every society. Recent incidents of domestic political violence demonstrate that the United States is no exception.

To address this threat of marginalizing the poor from democratic politics, we advance three sets of proposals. First, we argue that states should regulate the information environment of political campaigns. Prohibiting the collection and distribution of voter history data is not practical, but states should lean into their privacy laws to prohibit the matching of voter files with other administrative datasets, and should provide voter history data to campaigns independent of any information about individual political preferences. Second, states should create financial incentives for campaigns to expand their mobilization efforts to include a more representative target population that is more inclusive of the poor. Traditional campaign finance voucher and tax rebate programs are likely inadequate on their own. Instead, we propose a series of novel incentive programs that would provide cash grants to campaigns that report the most donors during each reporting period and to parties who generate more turnout than their historical average. Finally, we advance proposals for social media platforms to self-regulate “lookalike” targeting and segmented online political ads that amplify inequalities in mobilization and exacerbate political marginalization.

Political parties and individual campaigns in the United States are currently not mandated by law to promote political equality. The above reforms aim to align the short-term interests of parties and campaigns (winning the next election) with the long-term public interest in preserving a healthy democracy. Constructing a more inclusive political system will benefit everyone who seeks to live in a sustainable representative democracy, not just those who are currently marginalized.

Temporal Buffer Zones: The Constitutional Case for Regulating Political Speech Immediately Prior to Elections
Yale Law & Policy Review, vol. 40, no. 2, pp. 465-487 (2022) (with Kiel Brennan-Marquez)

Abstract | Paper

The First Amendment forbids most limits on political speech, but it permits buffer zones around polling stations on Election Day. This exception to the deregulatory thrust of election speech doctrine is strikingly under-theorized. In this Essay we excavate the values that underpin the buffer zone exception—voter confusion and electoral integrity—and we argue that, properly understood, the same values would justify the use of temporal buffer zones: stricter-than-normal regulations on certain types of political speech in the immediate vicinity of an election. Voting, we suggest, is an act different in kind from the deliberation that precedes it. Accordingly, governmental efforts to ensure the sanctity of voting can satisfy exacting First Amendment scrutiny in a manner that similar efforts to quell or influence expression throughout the campaign process cannot. For all the case law (and scholarship) arguing that campaigning should be insulated from legal control, there is an under-appreciated interest in subjecting voting—as distinct from campaigning—to legal controls that help to guarantee its solemnity. Physical buffer zones are paradigmatic. Temporal buffer zones are a natural extension.

Survival Voting and Minority Political Rights
American University Law Review, vol. 72, no. 4, pp. 2319-2464 (2022)
(with Lisa Grow Sun, Brigham Daniels, Chantel Sloan & Natalie Blades)

Abstract | Paper | Appendix

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities. To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially inform—and perhaps even fundamentally alter—how we address several common voting rights issues. A new focus on the disparate health effects of voting rules, grounded in the kind of solid empirical evidence we provide, could reinvigorate the Voting Rights Act by providing new avenues for assessing voting rights, for litigating and judging voter suppression claims under Section 2, and even informing a new coverage formula in a modified Section 5. This evidence arrives at a critical juncture for the VRA which has been stripped of much of its bite by the Supreme Court and is currently being debated in Congress. The clear and compelling story told by our data are a clarion call to legislators, courts, and litigators to reconceptualize and strengthen voting rights by accounting for the barriers that health disparities pose to minority access to the ballot.

Mind the (Participation) Gap: Vouchers, Voting, and Visibility
American Politics Research, vol. 50, no. 5, pp. 623-642 (2022)
(with Abby K. Wood, Christopher S. Elmendorf, & Nicholas G. Napolio)

Abstract | Paper | Pre-analysis plan

Quantifying the effects of campaign finance disclosure on political participation is difficult. Existing empirical studies on the chilling effect of disclosure are mixed. Many campaigns believe that disclosure can actually attract speech while critics of disclosure emphasize the risk to contributors of potential harassment. The Supreme Court has endorsed campaign finance disclosure as essential for a functioning democracy, but has also warned that small donors and ideologically extreme donors may opt out of giving if their identities become public. In this study, we exploit the design features of a new kind of public financing--campaign finance vouchers--to observe the effects of full disclosure on two forms of voter participation. One form of participation is public in nature (voucher use) and one is private (voting). For each registered voter in our sample we measure the "participation gap"" (voting minus voucher) to assess whether local ideological outliers are less likely to use their vouchers and, among those who do use them, whether vouchers are given to ideologically proximate candidates or distributed more strategically relative to ideologically typical voters.

Disaster Vulnerability
Boston College Law Review, vol. 63, vol. 3, pp. 957-1035 (2022)
(with Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades, Teresa Gomez & Sarah Christensen)

Abstract | Paper

Vulnerability drives disaster law—defining its successes and illustrating its failures. Although understanding vulnerability is critical to disaster law and scholarship, the literature lacks both an overarching analysis of the different aspects of vulnerability and a nuanced examination of the factors that shape disaster outcomes. This paper attempts to fill those holes.

Despite its centrality to disaster law and policy, vulnerability often lurks in the shadows of a disaster, evident only once the worst is past and the bodies have been counted. The COVID-19 pandemic is a notable exception to this historical pattern: from the beginning of the pandemic, it has been clear that the virus poses different risks to different people, depending on different vulnerability variables. This most recent pandemic experience thus provides a useful vantage point for considering vulnerability in a more nuanced way and for illuminating how a data-driven approach to vulnerability could improve disaster policy more generally.

Drawing on new empirical data, as well as experience from past disasters, we introduce and develop three dimensions of vulnerability and their implications for policymakers. First, we explore the geography of vulnerability. Using statistical analysis and GIS mapping, our team of public health, statistics, and legal experts develops a sophisticated and detailed empirical tool to understand disaster vulnerability—an innovative COVID-19 vulnerability index that draws on a rich dataset and uses statistical modeling of case fatality rates to accurately identify the country's most vulnerable counties. We then demonstrate how this vulnerability index could have been used to inform two critical and contentious policy decisions that occupied decision-makers from the onset of the pandemic: mask mandates and voter accommodations during the 2020 elections. Building upon the lessons of COVID-19, we then show how similar modeling and thinking could make disaster management more proactive—better able to anticipate needs and prioritize disaster mitigation and response resources.

Incorporating insights from our exploration of the geographic dimension of vulnerability, we then explore a second aspect of disaster vulnerability: competing or conflicting vulnerabilities. These are situations in which policymakers must navigate choices that require prioritizing one vulnerable group's needs over another or one aspect of a group's vulnerability over another. To illustrate these issues, we consider two other important problems that have challenged policymakers during the pandemic: school closures and vaccine distribution.

Finally, we explore political vulnerability. This analysis encompasses a variety of ways that disasters make already vulnerable groups even more vulnerable to certain kinds of harms, including political neglect, stigmatization, disenfranchisement, displacement, and other forms of exploitation. In particular, we consider how vulnerability data may be both an unintended roadmap for exploitation and an important check on disaster inequity. In sum, this Article draws upon the costly lessons of COVID-19 for the most vulnerable to suggest a more robust academic and policy framework for assessing and responding to vulnerability in future disasters.

Measuring State Capture
Wisconsin Law Review, vol. 2021, no. 5, pp. 1141-1185 (2021)
(with Pam Clouser McCann & Abby K. Wood)

    → Symposium: "Public Law in the States"

Abstract | Paper

How do we know when an executive branch actor is captured or is at risk of capture? And, what is the risk that other branches of government could be captured? In this project, we offer a critical review of regulatory—or industry-related—capture which we use to build a concept of state capture that extends beyond agency-specific accounts and incorporates both the structures and processes of governing, while centering our examination on the public. We use state-level data on campaign finance, lobbying, industry size, ethics, and transparency to measure the degree to which of the 50 state executive, legislative, and judicial branches are at risk of capture by the dominant industries in the state. We then test our measures of risk against policies that departed so far from public opinion that scholars suspect capture may have been at play. Finally, we discuss judicial review of agency action in the face of suspected capture. Courts should use a heightened level of scrutiny where risk of capture is high. However, we also point out that elected judges—particularly those who run for re-election—are vulnerable to the same pressures that legislators endure when it comes to the risk of influence via campaign finance. In those cases, where a judge’s campaign financing is dominated by the industry affected by the agency action or statute, the judge should recuse, and policymakers concerned about judicial capture should create a narrow presumption for litigants to remove the case to federal court.

Models, Race, and the Law
Yale Law Journal Forum, vol. 130, pp. 744-797 (2021) (with Moon Duchin)

    → Response to Jowei Chen & Nicholas O. Stephanopoulos, "The Race-Blind Future of Voting Rights,"
        Yale Law Journal, vol. 130 pp. 862-946 (2021)
    → Winner of CU Boulder Provost's Faculty Achievement Award

Abstract | Paper | Replication materials (GitHub)

In The Race-Blind Future of Voting Rights, Jowei Chen and Nick Stephanopoulos sketch out a provocative proof of concept that stands on a shaky empirical foundation. The authors use the promising ensemble method of random district generation to deliver a baseline for minority electoral opportunity. As we show with data demonstrations and replication, the authors' ambitious scope leads them to take many shortcuts in methodology as they build their label of opportunity and their ensembles. Furthermore, the authors misuse the ensembles that they do generate. This style of leveraging technical tools while ignoring the scientific standards surrounding their development and deployment risks creating an unnecessarily muddy legal terrain. And the stakes are high: whereas the goal of the Voting Rights Act is to "hasten the waning of racism in American politics," The Race-Blind Future of Voting Rights could very well hasten the waning of political power for people of color at all levels of government. This Response flags technical issues and also questions the conceptual alignment of the methods with their application to voting rights law.

Sanctuary Cities and the Power of the Purse: An Executive Dole Test
Iowa Law Review, vol. 106, no. 3, pp. 1209-1251 (2021)

    → Reprinted in Immigration & Nationality Law Review, vol. 42, pp. 435-478 (2021)

Abstract | Paper

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decisionmaking and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than thirty years of Supreme Court precedent since South Dakota v. Dole, must be clearly articulated in advance, related to the underlying purpose of the federal funds, and not deemed coercive by the courts.

The Attorney General recently announced conditions on federal law enforcement grants that would defund police departments who do not cooperate with federal immigration officials. These new funding conditions triggered legal challenges by a dozen jurisdictions under the Spending Clause. While the case law is clear that Congress may delegate its authority to the Executive to add conditions on federal grants, two important questions remain unresolved: (1) does the authority to add conditions on spending inherently attach to delegations to implement federal grant programs or must that authority be delegated separately and unambiguously? and (2) are executive conditions subject to the same standards of clarity, germaneness, and non-coercion? Recent threats by the President to withhold funding for elections, education, and public parks amplify the need for clarity on these questions.

In this Article, I argue that executive conditions on federal spending are unquestionably appropriate, but only when Congress has unambiguously delegated the authority to add conditions. This delegation should not act as a loophole in the Dole doctrine. In fact, because the central constitutional concern in Spending Clause cases is the undue aggrandizement of federal power at the (literal) expense of the states, I argue that executive conditions on federal spending should be subject to stricter limits than conditions imposed by Congress; inter-branch coordination poses a greater threat to state sovereignty than either Congress or the Executive acting alone. The upshot of stricter executive limits is that conditions on federal spending will likely shift away from the Executive to Congress, which may be desirable on accountability grounds.

Finally, the recent appointment of Justices Gorsuch and Kavanaugh to the Supreme Court have raised the stakes of this particular debate. Both of the new Justices have publicly articulated concerns about expanding federal power and federal administrative power in particular. The question of sua sponte executive conditions on federal grants-in-aid thus pose a ripe opportunity for skeptics of the administrative state to rein in the regulatory state in particular, and the Spending Clause more generally.

The "Appearance of Corruption:" Linking Public Opinion and Campaign Finance Reform
Election Law Journal, vol. 19, no. 4, pp. 510-523 (2020) (with Alex Theodoridis)

Abstract | Paper | Replication materials (upon request)

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the "appearance of corruption" are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this paper, we report findings from a broadly representative national survey in which we 1) directly ask respondents to identify behaviors that appear politically corrupt, and 2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more likely to do something corrupt while in office. Our findings both support and challenge current campaign finance jurisprudence. Our direct item shows that bribery is considered to be the most politically corrupt behavior, while wealthy self-funded candidates are not perceived as corrupting the political system. These findings support the reliance of courts on bribery as the primary justification for campaign finance rules, and the courts’ dismissal of regulations targeting wealthy candidates. However, most of our respondents perceived many common behaviors besides bribery to be “very corrupt,” challenging courts’ reliance on bribery as the sole justification for campaign finance rules. Our conjoint experiment, designed to force trade-offs between various behaviors, similarly reveals little differentiation across candidate campaign finance profiles, suggesting voters may not distinguish common behaviors in terms of their corrupting role. A normatively positive result in our conjoint analysis is that partisans do not appear to define corruptibility on the basis of in-/out-party signals.

Passive Voter Suppression: Campaign Mobilization and the Effective Disenfranchisement of the Poor
Northwestern University Law Review, vol. 114, no. 3, pp. 633-704 (2019) (with Bertrall L. Ross II)

Abstract | Paper

A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim-Crow era voter suppression laws. We challenge the analogy that current restrictive voting laws are a reincarnation of Jim-Crow era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did African Americans. This form of suppression excludes the poor.

To account for the effective disfranchisement of the poor, we develop a more robust theory of voting than currently exists in the legal literature. Drawing on rational choice and sociological theories of voting, we show how information, affiliation with formal organizations, and integration into social networks of politically active individuals are far more important to the decision to vote than the tangible costs of voting associated with the new voter suppression.

Using this expanded account of voting, we identify the role of political parties and their mobilization activities in the effective disfranchisement of the poor. Relying on the same proprietary data as the Obama campaign in 2008 and 2012 (and hundreds of campaigns since) along with other public sources of data, we show how campaigns employ a “calculus of contact” to decide whom to mobilize. That calculus leads campaigns to disproportionately neglect the poor when canvassing, calling, and sending political mailers to potential voters—mobilization activities that have a significant turnout effect. In our view, the most significant voter suppression tactics of the 21st century are therefore not what legislatures are doing, but what campaigns are not doing.

We argue that a first step in combating this passive voter suppression should involve changing the information environment of campaigns: the amount and type of information about potential voters that the state makes available to campaigns. Such changes could force campaigns to adjust their calculus of contact and contact more low income people during election season. Including the poor as targets of campaign mobilization would be an important first step toward a more egalitarian democracy.

Corporations as Conduits: A Cautionary Note About Regulating Hypotheticals
Stetson Law Review, vol. 47, no. 2, pp. 225-258 (2018)

    → Symposium: "Can Corporations Be Good Citizens? How Corporate Law, Litigation, Lobbying,
                            and Money in Politics Intersect"

Abstract | Paper

In this paper, prepared as part of a symposium on the intersection of corporations and money in politics, I illustrate the various ways that corporations can spend their money to influence politics in America and the relevant disclosure rules (or lack thereof) that track this political activity. I also highlight opportunities for individuals to exploit corporate transparency loopholes to illegally spend money in American politics and address the question whether proof of possible nefarious activity is sufficient to justify regulations targeting actual nefarious activity, drawing on recent debates about voter fraud. Finally, I argue that campaign finance laws have been created, justified, implemented, and interpreted in relative isolation from one another, creating unnecessary (though perhaps anticipated) loopholes in enforcement that undermine the goals of oversight and accountability in campaigns and elections. Campaign finance regulations can only be effective insofar as they respond to the dynamic character of political campaigns. Thus, policymakers should focus less on “comprehensive” reform and more on “integrated” reform, resulting in more emphasis on as-applied challenges in the courts.

In the Shadows of Sunlight: The Effects of Transparency on State Political Campaigns
Election Law Journal, vol. 15, no. 4, pp. 302-329 (2016) (with Abby K. Wood)

    → Reviewed by Pamela S. Karlan, "Answering Questions, Questioning Answers, and the Roles of Empiricism
        in the Law of Democracy," Stanford Law Review, vol. 65, pp. 1269-1290 (2013)

Abstract | Paper | Appendix

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First Amendment jurisprudence that these donors are disproportionately affected by campaign finance regulations. In short, the argument that disclosure chills speech is not strongly supported by the data.

Administering Section 2 of the VRA After Shelby County
Columbia Law Review, vol. 115, no. 8, pp. 2143-2218 (2015) (with Christopher S. Elmendorf)

Abstract | Paper | Appendix | Replication materials (.zip)

Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; and, second, that the courts have authority to regularize Section 2 adjudication by creating rebuttable presumptions. Most Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases—each relying on data from a different set of elections—are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

Did Multicultural America Result From a Mistake? The 1965 Immigration Act and Evidence From Roll Call Votes
University of Illinois Law Review, vol. 2015, no. 3, pp. 1239-1258 (2015) (with Gabriel J. Chin)

    → Reprinted in Immigration & Nationality Law Review, vol. 36, pp. 643-662 (2015)

Abstract | Paper | Replication materials (.zip)

Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade America; education, employment, housing, politics, and the population itself have irreversibly changed.

Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a majority minority nation. In 1960, because U.S. law restricted immigration by race, 85% of the population was non-Hispanic white. Since the enactment of the Immigration Act the Hispanic and Asian American share of the population has more than quintupled, and by 2043 the Census Bureau projects that African Americans, Latinos and Asian Americans together will comprise a majority of the population.

Based on the legislative history, statements by government officials, and media reports, many scholars argue that Congress did not intend to change the racial demographics of the immigrant stream. Instead, these scholars argue that the diversification of the American population was an enormous unintended consequence, one which Congress, had it appreciated what it was doing, might have thought better of. This Essay introduces novel evidence to evaluate that claim: the roll call votes of the House and Senate on these laws. The votes show that nearly identical coalitions of civil rights advocates supported all three laws while the same group of racially intolerant legislators opposed all three. This pattern suggests that all three laws had similar motivations and goals. We argue that the laws were inspired by sincere anti-racism and not cosmetic responses intended to have little practical effect.

The Geography of Racial Stereotyping: Evidence and Implications for VRA "Preclearance" After Shelby County
California Law Review, vol. 102, no. 4, pp. 1123-1180 (2014) (with Christopher S. Elmendorf)

Abstract | Paper | Appendix | Replication materials (.zip)

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the "outdated" formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within sub-state geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make sub-state coverage determinations to an administrative agency (along with other responsibilities for keeping the coverage formula up to date). Finally, we show that if Congress does not act, the courts could use our results to reestablish coverage in a number of states, entering much broader "bail in" remedies for constitutional violations than would otherwise be justified.

Legislating Incentives For Attorney Representation in Civil Rights Litigation
Journal of Law & Courts, vol. 2, no. 2, pp. 241-271 (2014) (with Sean Farhang)

Abstract | Paper | Replication materials (upon request)

In this paper we investigate whether, when Congress relies upon private lawsuits to implement a law, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. We ask: In statutes with private rights of action, can Congress substantially affect whether plaintiffs are represented by counsel? Using an original and novel dataset based upon review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981 to 2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel to represent them. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel, and that in doing so it reversed a decade long trend in the opposite direction.

Citizens United, States Divided: An Empirical Analysis of Independent Political Spending
Indiana Law Journal, vol. 89, no. 1, pp. 315-372 (2014) (with Abby K. Wood)

Abstract | Paper | Replication materials (.zip)

What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United about half of the states banned corporate independent expenditures and thus were “treated” by the Supreme Court’s decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in "treated" states to spending in the "control" states that have never banned corporate or union independent expenditures. We find that while independent expenditures increased in both treated and control states between 2006 and 2010, the increase was more than twice as large in the treated states and nearly all of the new money was funneled through nonprofit organizations and political committees where weak disclosure laws and practices protected the anonymity of the spenders. Finally, we observe that the increase in spending after Citizens United was not the product of fewer, larger expenditures as many scholars and pundits predicted, and we note that people were just as likely to make smaller expenditures (less than $400) after Citizens United as they were before. This finding is particularly striking because it cuts against the conventional wisdom of spending behavior and also challenges the logic of those who disagree with the most controversial element of the Citizens United decision – the rejection of political equality as a valid state interest.

Are Ballot Titles Biased? Partisanship in California's Supervision of Direct Democracy
U.C. Irvine Law Review, vol. 3, no. 3, pp. 511-549 (2013) (with Christopher S. Elmendorf)

    → Symposium: "Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model
                            in Election Administration, Redistricting, and Campaign Finance"

Abstract | Paper | Appendix (Survey Instrument) | Voter Guide Language (.zip)

This study, presented as part of a Symposium on the partisan administration of American elections, investigates whether the California Attorney General, who authors the ballot title and summary for statewide ballot initiatives, uses language that is biased rather than impartial. State law demands an impartial label, but commentators frequently complain that the AG chooses misleading language to bolster (undermine) measures that the AG or his/her party supports (opposes). Using a convenience sample of students from several universities, we measure ordinary observers’ perceptions of bias in ballot labels for initiatives dating back to 1974. Separately, we calculate an objective measure of bias using a readability algorithm. We then test hypotheses about AG strategy, examining whether the extent of bias in ballot labels varies with the closeness of the election and the degree to which the measure elicits partisan division. We also examine the correlation between bias perceptions and observer characteristics such as support for the ballot measure, trust in government, and social trust.

Long Lines at Polling Stations? Observations from an Election Day Field Study
Election Law Journal, vol. 9, no. 1, pp. 3-17 (2010) (with Zachary S. Markovits)

Abstract | Paper | Replication materials (.zip)


This pilot study represents the first systematic attempt to determine how common lines are on Election Day, at what times of day lines are most likely to form, the bottlenecks in the voting process, and how long it takes an average citizen to cast his or her ballot. Our study highlights the relevance of queuing theory to voting and the importance of evaluating polling station operations as a three-step process: the rate of arrivals, the check-in process, and casting a ballot. We collected data during the 2008 presidential primary election in California, measuring the efficiency of the operational components of 30 polling stations across three counties. We find statistically significant, and meaningful, variation in the service rates of poll workers and voting technology. Our findings will better help election officials make important decisions about the allocation of critical resources.

Book Chapters

Election Law and Empirical Social Science
in Oxford Handbook of American Election Law, ed. Eugene Mazo (forthcoming 2024)

Abstract | Draft

Empirical social science lies at the heart of election law and the two remain in conversation with each other, though not always on the same page. The story of election law’s relationship with empirical social science is not entirely disjointed, but neither is it a major success story. This chapter discusses some examples of synthesis between empirical social science and election law jurisprudence across some of the major domains of election law. Several examples are also discussed where the relationship between election law and social science has been clumsier. Legal decision making often involves positive, interpretive, and normative analysis. To maximize the symbiosis of election law and empirical social science, legal scholars should be more open to the value of social science in the first and second categories while social scientists would do well to recognize the limits of their work in the second and third categories. Empirical research should not be cast aside as “sociological gobbledygook” merely because it is imperfect and evolving. At the same time, while social science may prove necessary in many cases, it will rarely be sufficient for resolving thorny questions about equality and due process in the administration of elections. The impact of empirical social science on the future of election law will depend at least as much on the circumstances of its invocation as it will on innovative research design or cutting-edge statistical models.

Allen v. Milligan on Alabama's Congressional Redistricting Plan and the Voting Rights Act
in SCOTUS 2023, ed. Morgan Marietta, Palgrave Macmillan (forthcoming 2024)

Abstract | Draft

In the final month of its 2022 term, the Supreme Court surprised many observers by striking down Alabama's congressional districting plan in Allen v. Milligan. The highly anticipated decision rejected Alabama’s invitation to revisit long-standing precedent and to limit the reach of the Voting Rights Act in future cases. Instead, the Supreme Court affirmed the enduring relevance of the VRA in combating racial discrimination in voting, and affirmed a lower court judgment that Alabama redraw its congressional districts to give Black voters an equal opportunity to elect candidates of their choice in the state.

The Law of Gerrymandering (with Guy-Uriel Charles)
in Political Geometry, ed. Moon Duchin et al., Birkhauser Science, pp. 179-198 (2022)

Abstract | Paper

Many chapters in this volume are devoted to the study of shapes and symmetry, the parceling of people and places, and the capacity of computers for mapping the universe of possible outcomes. In this chapter, we outline the basic framework for how judges think about the challenges of gerrymandering. Our goal is to provide a foundational framework for geometers, mathematicians, computer scientists, political scientists, sociologists, and others who lend their expertise to help resolve the problem of gerrymandering. Many readers will find the jurisprudence of gerrymandering to be misguided or inadequate to the task, and they may be heartened to learn that efforts to reform the law are underway. However, because judges often have the final say on whether a gerrymander violates constitutional principles, and if so, what kind of remedies are available to those who are wronged, it is imperative for all concerned parties to have a productive understanding of the legal underpinnings of gerrymandering cases in the courts.

A Brief Introduction to the Voting Rights Act (with Arusha Gordon)
in Political Geometry, ed. Moon Duchin et al., Birkhauser Science, pp. 131-136 (2022)

Abstract | Excerpt

With the end of the Civil War in 1865, equal rights for African Americans were formally recognized in the U.S. through the passage of the 14th and 15th Amendments to the Constitution. These events initially led to a surge of African American voter registration and to the election of Black representatives, but the gains were quickly rolled back. By the late 1870s, a series of Supreme Court decisions, political deals, and legislative actions spelled the end of the ReconstructionEraandthedawnof JimCrow, the long period of legal repression of Black civil rights coupled with violent intimidation campaigns. Historians typically bracket the Jim Crow Era from 1877, when the federal troops who were enforcing anti-discrimination laws were withdrawnfromthe South, to 1965, with the passage of the Voting Rights Act.

The Impact of Organizational Characteristics on Super PAC Financing (with Paul S. Herrnson & Jennifer A. Heerwig)
in State of the Parties, 8th ed., John C. Green et al., Rowman & Littlefield, pp. 248-262 (2018)

Abstract | Paper

Super PACs are among the most influential participants in contemporary elections. Having spent billions of dollars since 2010, these relative newcomers to the political scene have had a conspicuous presence in many competitive House, Senate, and presidential contests. Nevertheless, remarkably little is known about these groups’ goals, strategies, or other organizational attributes, and even less is known about what enables some of them to raise the millions of dollars that fuel their television advertisements and other campaign efforts. In this study, we use a new data set comprising information about the super PACs that participated in the 2010 through 2016 federal elections to address the question: What is the impact of super PACs’ organizational characteristics and strategic objectives on their financing? Following a brief overview of their history and attributes, we analyze the impact of super PACs’ organizational characteristics and strategies on their revenues. The results demonstrate that a group’s mission, financial transparency, age, participation in elections for various levels of office, and support for different types of candidates have a major impact on its ability to raise money.