Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno
This article attempts to define the constitutional principles that characterize Shaw and to suggest how those principles might be applied in a consistent, meaningful way. Part I, in which we argue that Shaw must be understood to rest on a distinctive conception of the kinds of harms against which the Constitution protects, is the theoretical heart of the article. We call these expressive harms, as opposed to more familiar, material harms. In Part II, we briefly survey the history of previous, largely unsuccessful, efforts in other legal contexts to give principled content to these kinds of harms in redistricting. Parts III and IV then provide an alternative for evaluating district “appearance” by developing a quantitative approach for measuring district shapes that is most consistent with the theory of Shaw. These Parts are the empirical and social-scientific heart of the article. We apply our quantitative approach to congressional districts throughout the country, enabling meaningful comparisons between the congressional district at issue in Shaw and other districts. We also compare the shapes of congressional districts historically to test whether the district in Shaw is a distinctly recent phenomenon. In doing so, we identify the kind of districts most constitutionally vulnerable after Shaw. In Part V, we describe the further questions that lower courts must answer in deciding whether particular vulnerable districts ultimately fail the constitutional standard outlined in Shaw.