Stop Ignoring Pork and Potholes: Election Law and Constituent Service
abstract. This Note addresses a persistent gap in election law—the failure of scholars and judges to incorporate constituent service considerations into their theories and approaches. I argue that constituent service activities are both important aspects of representation and responsive to legal regimes governing the political process. I first examine the constituent service implications of the classic election law proposal that courts should intervene in the political process to ensure political competition. I then explore how voting rights law might better protect the constituent service interests of residents in minority-majority districts.
author. Yale Law School, J.D. 2013; Yale University, B.A. 2008. I am particularly grateful to Professor Heather Gerken, who guided this project from the beginning, and to the Yale Law Journal staff, particularly Ravi Ramanathan, for excellent edits and suggestions. I would also like to thank my family and friends for their feedback and support.
The July 9, 2009 edition of a local South Florida paper, the Hometown News, reported a story about Ellie DeStephan’s ninety-second birthday cruise.1 After booking Ms. DeStephan’s trip, her home health aide, Marilyn Angel, realized that Ms. DeStephan would need a passport to board the ship. Normally, applying for a passport is a simple task. But, in Ms. DeStephan’s case, “the passport agency wouldn’t accept her birth certificate because it was issued when she was 35 years old.”2 Realizing that the cruise line would accept an original copy of the birth certificate in lieu of a passport, Ms. Angel frantically tried to get the birth certificate back from the passport agency. She couldn’t get anyone to return her calls. Fortunately, the office of Ms. DeStephan’s U.S. representative came to the rescue. A caseworker reached someone at the passport agency and ensured that the agency shipped back the birth certificate in time. As a result, Ms. DeStephan enjoyed a ninety-second birthday celebration aboard the Freedom of the Seas.
What’s most remarkable about this story might be that it’s not remarkable at all. On a daily basis, representatives help constituents in a variety of ways. In the case of Ms. DeStephan, a representative helped fulfill a birthday dream. But often representatives help constituents address much more serious problems, such as ensuring that a constituent receives a public benefits check that staves off eviction.3 Representatives understand the importance of constituent service.4 So do political scientists, who have long recognized that representatives develop a “home style” distinct from the partisan style they employ within the legislature.5 Yet constituent service has almost entirely escaped the attention of one notable group—legal scholars and judges.
To be sure, constituent service has made occasional appearances in legal scholarship, notably in discussions of term limits,6 political corruption,7 and the proper role of legislators.8 But it has never featured prominently. Perhaps most surprisingly, election law scholars have largely ignored constituent service despite working on topics with significant implications for the relationship between representative and represented.9 While some, most notably Heather Gerken, have acknowledged the importance of constituent service,10 none have rigorously incorporated constituent service considerations into election law debates.11
This Note argues that election law scholars and judges dealing with election law claims should take constituent service more seriously. Part I draws on insights from the political science literature to describe constituent service activities. These activities largely fall into three categories: representative-as-ombudsman, accessibility, and appropriations. Part I then argues that all three categories of constituent service activities are important, and often valuable, components of the representation that constituents receive. Part II demonstrates how these different aspects of constituent service might inform two crucial areas of election law. Section II.A focuses on the constituent service implications of the classic structuralist thesis that courts should prevent mapmakers from designing legislative districts that undermine political competition. Specifically, this Section proposes amending the structuralist approach to permit some deviation from partisan equality within districts to facilitate effective constituent service delivery. Section II.B focuses on the constituent service implications of minority-majority districting, arguing that Congress should require that jurisdictions impose no unnecessary or unjustified structural barriers to effective constituent service delivery in minority-majority districts.
The term “constituent service” involves a set of relationships between individuals and their representatives that are often personal, idiosyncratic, and hidden from public view.12 Before applying lessons of constituent service to ongoing election law debates, it is therefore important to unpack the concept of constituent service itself, both in order to identify its various elements and to explore its contribution to the quality of representation that constituents receive. It would be impossible, for instance, to argue convincingly that some deprivation of constituent service constitutes a legally cognizable injury without first identifying what constituent services are and then explaining why the deprivation of those services might matter to a constituent or a court.
Recognizing that representatives play a multifaceted role in modern democracies, political theorists have long understood that the concept of representation includes non-policymaking functions. Hanna Pitkin, for example, posited that political representation is a broad concept involving “acting in the interests of the represented, in a manner responsive to them.”13 For Pitkin, responsiveness—and, hence, representation—results from many different types of interactions between representatives and constituents.14 Building on this insight, Heinz Eulau and Paul D. Karps argue that responsiveness in modern democratic systems can come from providing services, allocating funds, and remaining accessible to constituents.15 I refer to such activities as “constituent service.” Eulau and Karps do not necessarily argue that constituent service comprises an inherent component of representation itself. Rather, Eulau and Karps argue that as long as these non-policymaking avenues for responsiveness remain open in our political system, they contribute to the overall quality of representation that constituents receive.
The political science literature reveals that most constituent service activities fit into one or more of three broad categories: (1) “representative-as-ombudsman,” i.e., a representative’s attempts to help constituents or groups navigate government bureaucracies; (2) “accessibility,” i.e., a representative’s efforts to keep in touch with constituents and, particularly, district stakeholders; and (3) “appropriations,” i.e., a representative’s use of influence within the legislative process to deliver discretionary funds back to district interests.16 While these categories certainly fail to cover all constituent service activities, they are meant to capture most of the ways in which legislators serve their constituents. Each is subject to criticism but also capable of improving the quality of representation that constituents receive.
John R. Johannes describes the ombudsman role as being, “[i]n short, the function of [the legislature] as intermediary between the government and the governed—between citizens and the bureaucracy.”17 He describes two primary aspects of this role—casework and federal projects assistance.18 Casework, which Johannes defines as “intervention for individuals, groups, or organizations (including businesses) that have requests of, grievances against, or a need for access to federal (and occasionally state or local) government departments or agencies,”19 might include, for instance, helping a constituent demonstrate eligibility for social security benefits,20 or nudging a local highway department to fill a pothole. “Projects” assistance, which Johannes describes as “assisting state and local governments in their attempts to secure federal grants from agencies that possess discretion in allocating such funds,”21 might include, for instance, helping a local advocacy organization receive Department of Housing and Urban Development funding.22Fenno’s observational studies suggest that representatives spend some of their own time on ombudsman tasks, but also frequently delegate such tasks to trained, full-time staffers.23 While most legislative offices receive many casework and projects assistance requests, the precise number varies between offices and between different levels of government.24
The ombudsman function improves quality of representation in several ways. First, it helps constituents successfully navigate administrative bureaucracies. Representatives and staffers develop expertise evaluating and defending casework and projects assistance requests; agency staffers rely on this expertise to reduce the amount of time they must spend interpreting and responding to requests.25 Moreover, insofar as representatives control agency purse strings, agencies have incentives to take requests from representatives seriously.26 Second, and relatedly, the ombudsman function helps reduce status inequalities between petitioners for agency services. The representative-as-ombudsman not only distributes requests to the proper agencies and bureaucrats, but also knows how to present those requests in convincing ways.27 As a result, constituents with little relevant education or background can, with the help of their representative, receive treatment comparable to what the more educated and politically connected receive.28 Third, the ombudsman function provides an important policy feedback mechanism for representatives and for agencies. As Johannes notes, “casework is . . . a way not only of keeping track of what executive agencies are doing but also of staying in touch with people and their problems.”29 With accurate and timely information about the effects of legislation on constituents, representatives are better able to reform existing programs and to identify problems that might plague future legislation.30 Similarly, agencies rely on representatives and their casework teams to provide informed feedback on agency service provision.31
A second category of constituent service activities involves a representative’s accessibility to constituents. “Accessibility” is of course a vague term. The idea behind it is that representatives should make an effort to, among other things, explain decisions, keep abreast of district interests, and respond to individual constituent questions and concerns.32 Representatives use various methods to remain accessible to their constituents. For instance, a representative might hold town hall meetings and open office hours in the district, attend events in the district, speak regularly with various district stakeholders, publish online newsletters describing legislative activity, and participate in live video chats with constituents.33 Additionally, representatives might initiate efforts to resolve local problems, perhaps by hosting events that bring together community stakeholders.34
Accessibility can provide various representational benefits for constituents. First, legislators improve the quality of public debate when they take the time to explain their views and activities and allow constituents to argue in favor of alternative approaches.35 Moreover, willingness to explain decisions helps representatives develop constituent trust, which increases constituents’ satisfaction with their representation.36 Second, accessibility allows representatives to remain aware of discrete district interests. Identifying and balancing interests is no easy task; even minor demographic or economic changes might demand that representatives reevaluate assumptions about the districts they represent.37 Accessible representatives are likely better able to maintain an accurate impression of constituent characteristics, preferences, and intensities of preference,38 and as a result to know when particular decisions might be unacceptable to constituents.39 Third, representative-initiated efforts can bring together community leaders and government figures to address district problems.40
The appropriations category includes earmarks (“pork”),41 but also includes other targeted government spending designed to serve particular district interests.42 The main advantage of the appropriations process for constituent service is that it allows representatives to target state and federal money to areas of significant local need that might otherwise remain unmet. Staffers at administrative agencies, which largely control the distribution of federal and state funds, are generally less aware of distinct district interests and more likely to distribute money in accordance with national and statewide policy goals.43 Providing representatives with some leeway to target small amounts of money to discrete district interests ensures that district needs are not perpetually ignored in favor of statewide and national interests.44 Importantly, despite the risk of earmark abuse, the system seems in many cases to serve constituent interests rather than nefarious “special interests” or the whims of representatives. For example, the Department of Transportation, which administers perhaps the most earmark-laden appropriations bill, attempted to discredit earmarks by studying how many earmark-funded projects would have received funding under the normal, merit-based system.45 But “[a]fter finding that most of them would have qualified, the department abandoned its probe.”46
Although many legislation scholars have argued that the appropriations process is nontransparent, wasteful, and inequitable,47 these criticisms may be overstated. First, recent reforms demonstrate that even the federal earmarking process can operate with a reasonable degree of transparency.48 Congress passed various reforms between 2007 and 2009, which, combined with changes in House and Senate rules, mandated that members of Congress publicize earmark requests in order to provide other members and constituents an opportunity to scrutinize them.49 As a result, in the words of one expert, “[s]hafts of light . . . illuminate[d] these small but previously shadowed pockets of discretionary spending . . . .”50
As for wastefulness, it is certainly true that earmarking reduces the total amount of money available for projects serving national and statewide policy goals. But earmarking doesn’t take up much of the total pie. According to a study conducted prior to implementation of the federal earmarking “ban,” total spending on pork never exceeded $30 billion, and was often far less than that.51 By comparison, in 2008, Congress authorized approximately $1.1 trillion in total discretionary spending.52 Moreover, even many of the projects generally considered entirely wasteful benefit local residents.53 For instance, Alaska’s infamous “Bridge to Nowhere,” though criticized in the national media,54 was hardly as wasteful as depicted. Although most believed that the bridge’s exclusive purpose was to connect a sparsely populated island with the small municipality of Ketchikan, in truth the project was meant to provide the first non-ferry link between Ketchikan and its airport, a major transportation hub for southeast Alaska.55 Even projects that appear to serve no existing constituency interest might be designed to stimulate future demand.56
Finally, the distribution of discretionary funds by representatives is not as inequitable as some critics have claimed. District interest groups exert pressure on all representatives to deliver earmarks.57 Representatives in turn have incentives to support others’ earmark requests in order to ensure that their own requests also receive support.58 This process, sometimes skeptically referred to as “logrolling,” generally results in the delivery of some discretionary funds to most districts,59 even though more discretionary funds go to districts represented by senior, powerful representatives.60 Relying on interest groups to exert pressure is of course imperfect—such groups might merely amplify the voices of already powerful local interests—but accessible representatives can make their own determinations about constituent need.61 Thus, through earmarking, accessible representatives are able to contribute federal money to important local projects that other political actors might have little ability or incentive to fund.
In this Part, I have argued that ignoring constituent service means ignoring avenues for responsiveness that can enhance the quality of representation that constituents receive. The next Part, which incorporates constituent service considerations into ongoing election law debates, relies heavily on these insights.
One of the most important recent debates in election law is over what role courts should play in regulating the political process. Those advocating what is often called the “individual-rights approach” believe that courts are ill-equipped to identify and protect democratic values, and as a result support limiting judicial intervention to cases where individuals or groups suffer identifiable injuries. On the other side of the debate, so-called “structuralists” favor a more active role for the judiciary, one that focuses more on policing “the structures by which preferences are aggregated” rather than “the treatment of individual voters.”62
Neither side has paid much attention to constituent service. Judges following the individual-rights approach have acknowledged that legally cognizable injuries might arise if political rules degrade the quality of policy responsiveness.63 But, likely assuming that the Constitution has little to say about constituent service activities, few courts have considered whether the deprivation of constituent services might ever give rise to legally cognizable injuries.64 Similarly, structuralist scholars have almost entirely ignored the constituent-service implications of their proposals.
In this Part, I first introduce constituent service considerations into the debate over the classic structuralist claim that courts should police partisan lockups. I then examine constituent service from the perspective of individual rights and argue that current voting rights law ignores important constituent service tradeoffs. To illustrate, I reexamine the districts challenged in League of United Latin American Citizens v. Perry (LULAC)65 and Shaw v. Reno66 in light of the constituent service interests of minority constituents.
Even though structuralist arguments depend on designing political incentives to increase the likelihood that constituents receive optimal representation, no one engaging in the debate over policing partisan lockups has seriously considered constituent service tradeoffs. In this Section, I focus on arguments presented by three of the most prominent participants in that debate: Richard Pildes and Samuel Issacharoff, authors of the most influential structuralist argument for policing partisan lockups, and Nathaniel Persily, who criticizes their approach. Unlike Persily, who maintains that seniority provides representational benefits for constituents, I argue that seniority might actually undermine the quality of representation that constituents receive. I then argue that Pildes and Issacharoff’s proposal to police partisan lockups should be modified to account for constituent service considerations.
The standard partisan lockup—and the one I will focus on here—is a partisan or bipartisan gerrymander, in which political parties succeed in manipulating districts to minimize the likelihood of competitive elections.67 Because these gerrymanders entrench incumbents, the aggregate outcome of elections—the division of power in the legislature—fails to match the distribution of political support within the electorate. Issacharoff and Pildes propose that courts should police partisan lockups to ensure political competition and electoral accountability.68 As Issacharoff explains, “the electorate can only express a free and uncorrupted choice if it has the ability to select among competing political prospects.”69 Underlying Issacharoff and Pildes’s argument is a commitment to the idea that courts should ensure a high quality of political responsiveness. The thesis of their article Politics as Markets makes this link explicit: “[W]e propose that a self-conscious judiciary should destabilize political lockups in order to protect the competitive vitality of the electoral process and facilitate more responsive representation.”70 They use similar language in other works:
The key to this approach is to view competition as critical to the ability of voters to ensure the responsiveness of elected officials to the voters’ interests through the after-the-fact capacity to vote those officials out of office. In turn, the accountability to the electorate emerges as the prime guarantor of democratic legitimacy.71
But like most structuralist election law scholars, Issacharoff and Pildes evaluate responsiveness in terms of the overall partisan balance within the legislature. Such an approach makes sense only from the perspective of policy responsiveness; constituent service is largely unaffected by the distribution of Democrats and Republicans.72 Rather than an oversight, this failure to consider constituent service reflects a broader assumption that policy responsiveness trumps all. As Issacharoff and Pildes acknowledge in Politics as Markets, “Only through an appropriately competitive partisan environment can one of the central goals of democratic politics be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens.”73
One prominent election law scholar, Nathaniel Persily, has criticized Issacharoff and Pildes for ignoring the district-level representational effects of their proposal. Persily claims that safe seats are “neither inherently undesirable nor easily avoidable.”74 He notes that “the competitiveness maximization strategy seeks to limit the opportunity for long-term relationships to form between representatives and the represented.”75He argues that these long-term relationships facilitate better responsiveness because “[l]ong-term representatives have a chance to learn about and understand the unique problems of their districts and to pursue legislation that remedies those problems,” while “novice representatives are likely to be systematically inferior to ‘entrenched’ representatives when it comes to the effective representation of their constituents’ views.”76
Persily’s argument, though critical of Issacharoff and Pildes’s, shares in common with it a tendency to focus on the legislative process rather than on representatives’ “home styles.” As we have already seen, political science literature supports Persily’s assertion that seniority allows representatives to deliver a greater amount of money back to their districts through lawmaking and appropriations.77 Yet Persily fails to justify his assumption that seniority also contributes to a better understanding of distinct district interests. Nor does he consider other aspects of constituent service delivery to determine whether a senior representative’s greater capacity to return political “goods” to his constituents actually translates into a higher quality of constituent service delivery—and a higher quality of representation more generally.
Taking those other aspects of constituent service into account, it becomes clear that, contrary to Persily, partisan gerrymanders and safe seats likely reduce the overall quality of constituent service delivery. This is true for at least four reasons. First, even assuming that senior representatives are accessible enough and motivated enough to deliver appropriations that constituents find valuable, every extra discretionary dollar that senior representatives return to their districts imposes a cost on constituents in districts without senior representatives. Inequalities inherent in the appropriations process are perhaps more defensible if individual constituents are advantaged at some times and disadvantaged at other times. Insofar as partisan lockups result in certain districts consistently having more senior representation, those particular districts will consistently receive a disproportionate percentage of total discretionary funds. Policing partisan lockups would decrease the likelihood that the same districts would receive a disproportionate share of appropriations year after year.
Second, it is not at all clear that seniority actually leads to a greater awareness of distinct district interests.78 In fact, political scientists have often found that senior representatives, particularly from safe seats, are less accessible to constituents,79 and thus less likely to remain aware of shifting district interests. One explanation for this phenomenon is that senior representatives prefer expending energy influencing and passing legislation on national issues to addressing discrete district needs. Fenno quotes one long-time incumbent as stating: “What’s the use of having high seniority with the opportunity of being influential in Congress if you have to spend all your time in your district?”80 He also describes a long-time incumbent who was less involved in “civic engagement” and had a less “grassroots-oriented” frame of reference as compared to a less-senior colleague; the more senior representative preferred to address policy issues at a “broad level,” mostly through legislative work in Washington.81 By contrast, backbencher representatives—likely to be junior—might find that they can make more positive change by working to address district problems than by focusing on national issues. Furthermore, junior representatives, who have yet to build up positive reputations for constituent service provision, might have greater electoral incentives to contact constituents and appear responsive.82 Thus, while a senior safe district incumbent might be more capable of exerting influence on behalf of discrete district interests, it is less clear that the senior safe district incumbent would be motivated to remain aware of shifting discrete interests and able to prioritize them appropriately.
Third, political scientists have generally found that senior representatives are lessfocused on casework.83 Casework is hardly a representative’s or staffer’s favorite responsibility. While a powerful senior representative in a safe seat might employ a district staff to handle casework concerns, that representative is unlikely to play any personal role in casework or to invest significant resources in casework.84 Fenno notes that in one instance a senior representative from a majority poor, urban district consolidated his separate urban and suburban district offices into one suburban office because it was in a “[n]icer neighborhood” and his “staff like[d] it better,” despite the fact that many of his urban constituents lived far from the new district office and had no easy way of accessing it.85 This lack of attention to casework is made more problematic by the fact that senior representatives tend to receive more casework requests than junior representatives, largely due to greater name recognition and reputation lag.86 Although the larger number of requests senior representatives receive might suggest that they are better positioned to provide constituent services, the fact that they focus less overall attention on casework means that they actually spend significantly less time addressing each casework request they receive.
Fourth, senior representatives might be most likely to provide constituent services inequitably. Because senior representatives often rely on the same coalition of supporters election after election, such representatives have an incentive to target constituent service benefits to particular constituents at the expense of others. Fenno argues that:
Constituency careers have two recognizable stages, expansionist and protectionist. In the expansionist stage, the member of Congress is still building a reliable reelection constituency. . . .
. . . .
During the protectionist stage of their constituency careers, House members become less interested in building supportive constituencies and most concerned about keeping the electoral support already attained, about maintaining the existing primary-plus-reelection constituencies. . . . Once the members are in the protectionist stage, home activities are dominated by preventive maintenance.87
Thus, once more-senior representatives enter the protectionist phase, they likely target constituent services to members of their supportive constituencies at the expense of other constituents. They might expedite casework requests from supportive district stakeholders and become less accessible to non-supportive stakeholders.88 And they might target discretionary funds to serve the needs of supportive stakeholders, because of their greater awareness of the distinct interests of supportive stakeholders and their desire to reward those stakeholders.89
The constituent service arguments I outline, combined with the policy responsiveness arguments offered by Issacharoff and Pildes, suggest that some checks on entrenched incumbency are necessary to ensure optimal representation. That said, while partisan lockups may hinder constituent service delivery, courts should not indiscriminately break up partisan lockups without considering whether doing so would degrade constituent service quality. After all, as already noted, political competition of the sort Issacharoff and Pildes seek is competition between political parties;constituent service provision is largely exogenous to this type of political competition.90
Issacharoff and Pildes might assume that removing partisan lockups would allow candidates to compete on any number of issues, including constituent service provision. On this theory, what matters most is that voters are able to select the candidates they want without incumbents establishing self-serving barriers to competition. However, it is almost certainly hard, if not impossible, to predict a challenger’s constituent service potential prior to an election. Many “competitive” elections will likely feature candidates who would follow identical constituent service strategies if elected. As a result, there is no reason to think that partisan lockups systematically stymie voters who seek to oust their representatives because of poor constituent service provision.91
In fact, there are several reasons to suspect that Issacharoff and Pildes’s proposal might impose barriers to effective constituent service delivery. First, and most importantly, since partisan competition bears no relationship to quality of constituent service delivery, maximizing political competition might force jurisdictions to design districts in ways that undermine constituent service quality. After all, anytime a jurisdiction chooses to design districts with one objective exclusively in mind, that jurisdiction might end up undermining other valuable objectives.
Second, policing partisan lockups might keep constituents from being able to use the ballot box to express accurate judgments about the quality of constituent service they receive, decreasing representatives’ incentives to provide such services. Incumbents who have established positive reputations for constituent service provision reap electoral benefits.92 Indeed, positive reputations for constituent service provision help explain why voters tend to think more highly of their own representatives than of the institution of Congress as a whole.93 But constituent service is generally a factor in elections only after representatives have built up reputations for constituent service provision.94 A representative is unlikely to develop such a reputation—positive or negative—until many different voters and interest groups have interacted with or attempted to interact with that representative.95 Insofar as policing lockups decreases the average length of a representative’s career and increases electoral instability, there is a risk that Issacharoff and Pildes’s proposal would reduce the electoral incentive that drives representatives to provide constituent services in the first place. After all, representatives in competitive seats at the outset of their careers are less likely to prioritize the long-term electoral gains they might derive from constituent service provision given greater need for short-term political advantage.
Finally, even if entrenched incumbency is undesirable from a constituent service perspective, so is constant turnover. Representation has a learning curve. Persily is doubtless right that representatives need to serve for some length of time before they understand how best to deal with casework requests, prioritize distinct district interests, and engage in legislative bargaining for desired earmarks. It is doubtful that implementing Issacharoff and Pildes’s proposal would lead to an optimal average length for congressional careers from a constituent service perspective.96
To avoid undermining constituent service delivery, Issacharoff and Pildes’s proposal should be adjusted to recognize a constituent service affirmative defense to a partisan lockup challenge.97 This defense would be objective in the sense that it would inquire into the structural incentives for a hypothetical representative to deliver constituent services, not into the actual or likely constituent service delivery patterns of any existing or presumed representative. Such a defense could be articulated in terms of either intent or effect. On the intent side, courts might uphold a challenged map if a defendant jurisdiction could provide sufficient evidence to demonstrate that the mapmakers’ primary motivation for deviating from partisan balance was maximizing the quality of constituent service delivery.98 Since an intent-based affirmative defense would justify deviation from partisan neutrality only when constituent service delivery was a primary motivation for drawing challenged district lines, it could not justify a true partisan gerrymander.
The problem, though, is that determining true intent is difficult. While courts evaluating racial gerrymandering claims have looked to mapmakers’ “predominant intent” in designing individual districts,99 a plurality of the Supreme Court has expressed well-placed skepticism about the ability of judges to identify predominant motivations outside the racial gerrymandering context.100 As the Court put it:
Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it.101
Here, the intent test would examine whether the “shape of a particular district is so substantially affected by the presence of . . . an ordinary and lawful motive as to” validate it.102 But that seems a distinction without a difference. Courts would still have to engage in the difficult process of determining whether one particular motive—maintaining constituent service quality—sufficiently predominated over other permissible considerations—such as respecting natural geographic boundaries—that might not justify deviation from partisan equality.
Advocates of an intent test might respond that courts could look to the evidentiary record mapmakers compiled to support the maps they drew. But mapmakers might use constituent service as a pretext, hiding true partisan motivations by discussing decisions exclusively in terms of constituent service quality. Indeed, in a world where courts police partisan lockups, political parties would likely take any opportunity to slip favorable maps through the cracks. Parties thus might invest significant resources in developing rich evidentiary records to support the notion that, contrary to reality, the mapmakers’ primary motivation was constituent service quality.
Because of the difficulties inherent in identifying the mapmakers’ “predominant motivation”—and because what matters ultimately is the quality of representation that constituents receive, not the mapmakers’ intent—I suggest that courts instead apply an effects test. Under such a test, courts might allow defendant jurisdictions to justify challenged maps on the ground that those maps have positive effects on constituent service delivery compared to partisan-neutral baselines. The defendant jurisdiction would have the burden of showing that the proposed map would provide specific constituent service benefits that could not be replicated under a partisan-neutral map.
Since entrenched incumbency often comes to undermine constituent service delivery, courts should not allow an effects-based constituent service affirmative defense to justify long-lasting incumbent protection schemes. Thus, courts should require defendant jurisdictions to demonstrate increasingly significant constituent service benefits as deviation from partisan neutrality increases. For example, to justify small but hardly insubstantial deviation from a partisan-neutral baseline, a jurisdiction might have to show that adoption of a partisan-neutral map would impose significant constituent service costs. Small but hardly insubstantial deviation might describe a district that on average supports the Republican presidential nominee by a 55/45 margin but, depending on the local and national political climate and the specific candidates, has a realistic chance of electing a Democrat to Congress in any given election.103 By contrast, justifying large deviation—say, a 70/30 Democratic district—would require showing that any possible partisan-neutral map would deprive a certain large group of constituents of virtually all constituent services, leaving them unrepresented as far as constituent service is concerned. Such a showing would likely prove impossible in all but the most extreme cases.
Of course, this test would require judges to engage in some intensive fact finding and critical evaluation of proffered justifications. To prevent use of constituent service as an excuse for partisan entrenchment, courts might require jurisdictions to prove constituent service benefits by clear and convincing evidence rather than by just a preponderance. To make the required showing, jurisdictions might rely on various types of evidence. For example, they might present expert testimony from political scientists discussing structural disincentives to constituent service delivery and the advantages of the challenged map in overcoming those disincentives.104 Or they might present expert evidence from political scientists, demographers, or economists explaining that no partisan-neutral map could avoid diluting representation of a particular group of residents who share a common racial, socio-economic, or geographic profile.105 Plaintiffs, of course, could then present their own evidence rebutting the defendant jurisdiction’s showing. They might try to demonstrate, for instance, that a plausible partisan-neutral alternative exists, or that the asserted constituent service benefits are illusory, or that the jurisdiction’s preferred map imposes countervailing constituent service costs.
Some might argue that fact-intensive review of the political process is inconsistent with the judicial role.106 But courts evaluating claims brought under section 2 of the Voting Rights Act are already forced to resolve complicated factual disputes regarding the representational effects of district maps.107 And Part I suggests some possible judicially manageable standards for determining constituent service quality. Courts could look to whether and to what extent the challenged map: (1) aids representatives in performing their ombudsman function; (2) helps representatives remain accessible to constituents; and/or (3) facilitates effective delivery of appropriations to district interests.
Others might worry that an effects test would simply facilitate a war of experts, who might lack access to reliable evidence demonstrating how a challenged map would improve or degrade constituent service quality. But Part I illustrates that political scientists can employ traditional methodologies to evaluate the constituent service implications of challenged district maps.108 And it might not be all that bad if many cases devolve into unresolvable battles between experts. Under the “clear and convincing evidence” standard, courts in such circumstances would simply reject the constituent service affirmative defense and dismantle the partisan lockup. Given the representational harms—including constituent service harms—that result from entrenched partisan lockups, the constituent service affirmative defense should perhaps only apply when a challenged map clearly and convincingly enhances constituent service quality.
Constituent service provision should also matter for scholars and judges who prefer to think about election law issues in terms of individual rights. In fact, some judges have already acknowledged as much. All courts to have considered the issue have held that jurisdictions may, consistent with the “one person, one vote” principle, design districts with equal total populations, rather than equal numbers of eligible voters, in order to ensure that each resident has an equal ability to petition for services.109 The Ninth Circuit has even suggested—albeit in dictum—that the Equal Protection Clause requires jurisdictions with large numbers of non-citizens to design districts with equal total populations to guarantee what Judge Alex Kozinski, in dissent, termed “equality of representation.”110 But this technical issue rarely arises.111
In this Section, I will examine an issue with potentially broader implications: race and reapportionment. I limit my analysis to minority-majority districts because I want to avoid overstating my case. Inadvertent structural disincentives for constituent service provision cannot always be legally actionable. Whenever districts are redesigned during reapportionment, some residents will, for whatever reason, end up receiving a lower quality of representation, but this fact alone cannot be enough to support a legal challenge.112 The minority-majority district context is distinct, however, because Congress and the courts have consistently emphasized the importance of protecting the representational interests of minorities.113 In this Section, I first articulate a new proposal for protecting the constituent service interests of minorities. I then reexamine two recent Supreme Court cases to see what difference my proposal might have made if it had been in effect at the time they were decided. My discussion of these cases illustrates how my proposal might operate in practice and underscores the importance of constituent service considerations in the minority voting rights context.
The Voting Rights Act of 1965 is perhaps the best example of America’s commitment to protecting minority representational rights.114 But, notwithstanding its importance, the Voting Rights Act falls prey to the same problem plaguing the rest of the election law field: a failure to adequately consider aspects of representation other than policy responsiveness. Section 2, for instance, precludes a state or political subdivision from implementing any “voting qualification or prerequisite to voting or standard, practice, or procedure” if its implementation would provide members of a minority group with “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”115 Yet once minority voters have been provided the right to cast undiluted votes and elect representatives of their choice, section 2 stops guaranteeing minority representational rights. No part of the Voting Rights Act looks beyond the legislature to the quality of constituent services that representatives, once elected, actually provide, or to the second-order structural effects of minority-majority districting requirements on constituent service delivery.116
This failure seems inconsistent with the Voting Rights Act’s broad remedial purpose of ensuring that minorities receive fair and equal representation. For one thing, insofar as constituent service facilitates a high quality of representation, voting rights law should prevent the political process from unfairly degrading the quality of constituent services that minority constituents receive.Moreover, since virtual representation—the concept that individuals can be “represented” by any representative who shares their traits or views regardless of what district that representative officially serves—is generally unavailable in the constituent service context,117 minority constituents might have a particular interest in electing candidates who will provide them a high quality of constituent services. Thus, expanding the voting rights arsenal to take constituent service interests into account would further promote political and representational equality.
At the broadest level, Congress could authorize minority constituents to bring voting rights claims based on a deprivation of equal access to constituent services. Under this approach, minority plaintiffs could challenge district maps on the ground that they dilute the quality of constituent services that minorities receive. While this broad approach has some merit, it also poses challenges, including the potential need for courts to weigh competing representational interests—such as policy responsiveness and constituent service—against each other. As a result, I will focus on a more modest alternative. My proposal would come into play when a jurisdiction has some preexisting legal obligation to draw a minority-majority district and must select between several different potential minority-majority districts to satisfy that obligation. In such circumstances, the jurisdiction should not be allowed to select a district in which, all else equal, minority constituents would receive a lower quality of constituent services than minority constituents would have received had the jurisdiction selected a different district.118 Thus, my proposal treats constituent service as a factor only when jurisdictions can select among various potential districts, any of which would satisfy all other Voting Rights Act obligations.
My purpose here is to explain in a general way why such a reform is needed, not to resolve all the procedural and legal problems that might plague implementation. Nevertheless, it is worth fleshing out a few specifics. First, I offer this proposal as a modification to available statutory remedies for Voting Rights Act violations, rather than as an interpretation of the Equal Protection Clause.119 Congress could conceivably enact such a reform pursuant to its powers to implement the Fourteenth and Fifteenth Amendments, the same powers Congress relied on when it originally enacted sections 2 and 5 of the Voting Rights Act.120
Second, insofar as procedure is concerned, a plaintiff would start with the burdens of production and persuasion. The plaintiff initially would have to make out a prima facie case demonstrating, by a preponderance of the evidence, that the jurisdiction selected a minority-majority district featuring structural barriers to constituent service delivery not present in an alternative district the jurisdiction could feasibly have selected. This prima facie case would likely turn on the same types of expert evidence that jurisdictions would present to support a constituent service affirmative defense to a partisan lockup claim.121
The jurisdiction could try to rebut the prima facie case by challenging the sufficiency of the plaintiff’s evidence or the significance of the asserted structural barriers to constituent service delivery, or by arguing that the plaintiff’s preferred district imposes its own structural barriers to constituent service delivery that are at least as serious as those imposed by the proposed district. However, if the plaintiff were to succeed in proving a prima faciecase by a preponderance of the evidence, the burden would shift to the jurisdiction to justify its district choice according to neutral principles. Such neutral principles might include, for instance, maintaining the compactness and contiguity of a district, or respecting existing municipal boundary lines.122 Since the purpose of minority-majority districting is to facilitate effective representation for minority constituents, courts and Congress should not allow pursuit of partisan advantage to constitute a neutral principle. If the jurisdiction shows, by a preponderance of the evidence, that it has some valid neutral justification for its decision, courts should defer to the jurisdiction.
It is worth noting that the prima facie case looks only to effects, while the neutral principles inquiry looks to both intent and effects.123 Under the neutral principles requirement, the jurisdiction must be able to show that it has selected certain district lines in order to serve some legally permissible purpose (intent) and that the district lines in fact serve that purpose (effect). This hybrid test addresses a major problem facing courts in the racial reapportionment context: isolating only those district maps that impermissibly discriminate. After all, the constituent service interests of minority residents are just one category of representational interests mapmakers must take into account when drawing districts. By looking both to intent and effect, the neutral principles inquiry avoids invalidating maps that are designed to serve and actually do serve valid representational interests. For instance, mapmakers might select a certain minority-majority district, knowing full well that minority residents would receive a higher quality of constituent service delivery in an alternative district, because mapmakers wanted to prevent splitting a municipality into multiple districts. While it is certainly possible to argue that constituent service should predominate over at least some other permissible districting considerations, my intent and effects test leaves those tradeoffs to the political process.
To illustrate how minority-majority districting schemes might implicate constituent service delivery and to explore how my proposal might better protect constituent service interests, I examine the factual backgrounds of two well-known election law cases: League of United Latin American Citizens v. Perry (LULAC)124 and Shaw v. Reno.125 LULAC and Shaw feature different structural barriers to constituent service delivery: lack of cultural compactness in LULAC and bizarre district shape in Shaw.
LULAC arose out of Texas’s 2003 mid-decade congressional redistricting. Compelled by section 5 of the Voting Rights Act to maintain a certain number of minority-majority districts, Texas replaced a district in which minorities shared common interests, District 23, with one that “combine[d] two farflung segments of a racial group with disparate interests,” District 25.126 The plaintiffs brought a section 2 claim challenging the state’s decision to dismantle District 23 in favor of District 25. The Court, per Justice Kennedy, agreed with the plaintiffs.127 As Pildes explained:
[District 25] joined together poor rural Hispanics along the Texas border with the far more well-off Hispanics living in the urban, state capitol area of Austin. . . . [F]or Justice Kennedy, the Austin and Rio Grande Hispanic communities lived in worlds far apart, not just physically, but culturally, economically, educationally, and in other ways—differences that were decisive.128
In other words, District 25 was insufficiently “culturally compact.”129 In LULAC, the Supreme Court for the first time held that the selection of one minority-majority district instead of another could impermissibly dilute minority voting power.130 Given traditional vote dilution jurisprudence, which has tended to focus on the number of minority-majority districts rather than the choice of minority-majority district, LULAC’s reliance on “disparate interests” seems misplaced. As Chief Justice Roberts pointed out in dissent in LULAC, the number of Latino-majority districts in Texas remained the same after implementation of court-mandated changes to the district map.131
Under my proposal, the Court would have reached the same result—invalidation of District 25 in favor of District 23—but for different reasons. Instead of straining conventional Voting Rights Act principles, the Court would have rested its decision on a more concrete representational injury: districts lacking cultural compactness likely foster less effective constituent service delivery when compared with culturally compact alternatives. This is for several reasons. First, a representative from District 25 would have less reason to focus on the particularized interests of minority constituents because those interests would be diffuse rather than discrete. Representatives are more likely to make themselves accessible to district stakeholders and advance district interests when those interests are shared—and prioritized—by large numbers of constituents.132 As the number of distinct interests in a district increases—and particularly when those distinct interests conflict—the advantages that a representative derives from remaining accessible and responsive to discrete district interests decline, as do the disadvantages of ignoring those interests.133 Even if a representative from a heterogeneous district were to make herself accessible to all constituents despite the diminished value of each hour spent in the district, that representative would likely have a difficult time identifying which interests she should prioritize.134 In addition, remaining accessible to all district interests in a heterogeneous district would potentially take so much time that other responsibilities—such as policymaking—might suffer.
Second, constituents in districts such as District 25 receive fewer benefits from the delivery of discretionary funds. For one thing, insofar as accessibility facilitates more effective earmarking, the quality of earmarking would suffer as a result of reduced accessibility.135 For another, since constituents in heterogeneous districts share fewer priorities, each dollar brought back to such a district likely benefits fewer residents than if it had been brought back to a homogeneous district. Since outcomes of the appropriations process reflect in part the degree of constituent need, representatives from heterogeneous districts are likely at a disadvantage in the legislative negotiating process.136 Moreover, the diminished per-constituent value of projects in heterogeneous districts reduces representatives’ electoral incentive to raise funds for and personally contribute time to such projects. Thus, fewer dollars would likely have returned to District 25, and the projects funded in District 25 would likely have done less good for constituents.
Third, representatives in homogenous districts usually have an easier time fulfilling their ombudsman function. The types of requests constituents make differ depending on socioeconomic status. Lower-income constituents might seek assistance navigating government benefits bureaucracies while wealthier constituents might seek assistance navigating the licensing rules for small businesses. In a district split between rich and poor constituents, casework staffers would be less able to develop expertise dealing with a single category of requests. In addition, heterogeneous districts require representatives to prioritize different types of requests, which is bound to be a difficult task. Finally, when communities of interest are split up between various districts, constituents might have difficulty determining whom they should call with casework requests.137
Some might argue that a non-culturally compact district is superior from a constituent service perspective because its representative must take into account a broader cross-section of interests within the minority community. This argument has some force, but it suffers from two defects. First, in actuality a representative is unlikely to take a broad cross-section of interests into account. Given no easy way to prioritize various interests, representatives are likely to favor the interests of the constituents who share their background at the expense of others.138 After all, remaining accessible to one’s strongest supporters is easier—calling up friends takes less time and effort than attending constituency town halls. Additionally, a representative—particularly a reasonably safe, senior representative from a minority-majority district—is likely to derive more electoral benefits from remaining accessible to her strongest supporters.139 And, insofar as the interests of those supporters differ from those of many other constituents, she is likely to ignore vital district interests. The second problem is that a good faith effort to represent a broad cross-section of minority interests is likely to provide a lower average level of constituent service to each minority constituent. The choice here is between effective representation of common interests shared by a large number of minority residents and diluted representation of multiple different interests.
Thus, Texas likely selected a district in which constituents would receive a lower quality of constituent services than they would have received in an alternative district. Assuming plaintiffs were able successfully to make out their prima facie case by a preponderance of the evidence, Texas would then have had to justify its choice according to neutral principles. Texas’s primary motivation for its selection of District 25—partisan advantage—would not have constituted a valid neutral principle. Assuming Texas proved unable to provide evidence supporting an alternative motivation, it would have been proper for a court to require Texas to abandon District 25 in favor of District 23.
The dispute in Shaw began when the Attorney General denied section 5 preclearance for North Carolina’s initial reapportionment map:
The Attorney General specifically objected to the configuration of boundary lines drawn in the south-central to southeastern region of the State. In the Attorney General’s view, the General Assembly could have created a second majority-minority district “to give effect to black and Native American voting strength in this area” by using boundary lines “no more irregular than [those] found elsewhere in the proposed plan,” but failed to do so for “pretextual reasons.”140
Instead of drawing the district described by the Attorney General or challenging the Attorney General’s conclusions in court, North Carolina enacted a new reapportionment scheme that:
[L]ocated [a] second district not in the south-central to southeastern part of the State, but in the north-central region along Interstate 85. . . . It is approximately 160 miles long and, for muchof its length, no wider than the I–85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas “until it gobbles in enough enclaves of black neighborhoods.” Northbound and southbound drivers on I–85 sometimes find themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them.141
In evaluating the validity of this new map, the Supreme Court held that district maps that “purposefully distinguish between voters on the basis of race” must withstand strict scrutiny to comply with the Equal Protection Clause.142 Ever since, scholars have struggled to determine the harms that give rise to so-called “Shaw claims,”143 and, thus, who should have standing to bring such claims.144
Rather than enter into that debate, I argue that, under my approach, the Court could have reached the same result by focusing on constituent service injuries. Like Texas in LULAC, North Carolina selected one minority-majority district over another even though constituents in the rejected district would likely have received a higher quality of constituent services. As an initial matter, if, as seems likely, the redrawn district grouped together many different members of a minority group from different parts of the state and different socioeconomic classes, it might have presented the same “cultural compactness” issues plaguing the district at issue in LULAC.145 But the bizarre shape of the redrawn district also created distinct barriers to effective delivery of constituent services.
For one thing, the snakelike design of the district—and particularly the fact that the district is often as narrow as a highway—might have left many residents unsure of the identity of their representative.146 Not only would many residents likely have lived on or near a district boundary line, but the district would also have lacked contiguity with any meaningful political community with which residents might have affiliated. Constituents who do not know the identities of their representatives likely make fewer casework requests and misdirect more requests. As a result, even a diligent representative from the redrawn district might have struggled to carry out casework responsibilities. But the district’s odd design also could have reduced incentives for casework diligence: a reason that representatives focus on casework responsibilities is to create reputations for being “diligent servants of their constituents.”147 The “indirect contacts” that give rise to such reputations—one constituent telling another about a positive experience—are less likely to occur when next-door neighbors live in different districts.148
The snakelike design of the redrawn district would also have inhibited accessibility and effective appropriating. On the accessibility side, the district’s narrowness would have caused much of the territory inside a ten- or twenty-mile radius from the site of a public event to fall outside the district. As a result, constituents on average would have had to travel longer distances to attend public events in the redrawn district than in the proposed district. To maintain the same level of accessibility and develop the same level of constituent trust, therefore, a representative would probably have needed to hold more public events in the redrawn district than in the proposed district.149 Moreover, as a result of its narrowness, the redrawn district would have consistently divided political and geographic communities, such as towns, cities, counties, and regions, as well as communities of interest. A senior center in a community split between a snakelike district and other districts benefits fewer residents of any single district than a similar center entirely contained within one district. A representative has a greater electoral incentive to appropriate funds for a project when that project is designed to benefit a greater number of that representative’s constituents.150
Thus, as in LULAC, the state chose to draw a minority-majority district in which constituents were likely to receive a lower quality of services than constituents would have received in an alternative district. Under my approach, assuming plaintiffs successfully made out this prima facie case by a preponderance of the evidence, North Carolina would have had to articulate a neutral justification for its selection. As with Texas, North Carolina’s predominant motivation was pursuit of partisan advantage. Thus, unless North Carolina provided evidence demonstrating an alternative valid motivation, it would have been proper for a court to invalidate this aspect of North Carolina’s map.151
In this Section, I have attempted to outline how Congress and courts might expand the tools in the racial reapportionment arsenal to protect the constituent service interests of minority groups. While I have laid out the broad parameters of one proposal, many questions still remain. For instance, what level of likely difference in constituent service quality would be significant enough to require a jurisdiction to justify its selection of one district over the other? Who would have Article III standing to bring a claim challenging a jurisdiction’s selection of one minority-majority district over another on this basis?152 What would happen if a defendant jurisdiction could show that better protecting the constituent service interests of minority residents would come at the cost of degrading the quality of constituent service that white residents would receive, or the overall quality of constituent service across all districts? These issues, as well as others, would need to be worked out. My goal has been to demonstrate that a constituent service claim along the lines of what I propose—or a different proposal with a similar purpose—is necessary to more fully protect the political rights of minorities.
One purpose of this Note has been to bring election law up to date with the political science literature addressing constituent service. My typology of constituent service activities is meant to show election law scholars that, contrary to a commonly held view, constituent service considerations can be incorporated into legal analysis. A second purpose has been to argue that election law scholars and judges should take constituent service seriously. I have attempted to illustrate the significant representational benefits that a high quality of constituent service can provide. Moreover, I have attempted to show how current debates focusing on political competition and minority-majority districting might benefit from a richer consideration of constituent service implications. As long as scholars and judges are “enter[ing] [the] political thicket” at all,153 they should keep in mind that policymaking is far from the only aspect of representation that matters.