Adam Cox (Chicago) has posted The Temporal Dimension of Voting Rights on SSRN. Here is the abstract:
Modern voting rights scholarship agrees on one thing: voting rights are in large part aggregate rights. Accordingly, one cannot evaluate voting rights claims, or the fairness of the electoral system, without establishing the boundaries of appropriate aggregation. This framework has led the literature to focus on spatial aggregation. That is, commentators concentrate on when it is appropriate to aggregate across persons located in different places to determine the fairness (or constitutionality) of a voting rule. Almost entirely overlooked, however, is the possibility of temporal aggregation. To evaluate the fairness of a voting rule, one must also pick a time period across which to aggregate the collective treatment of individual voters. This Article explores the temporal dimension of voting rights, showing that temporal aggregation issues play a central but unexamined role in many voting rights disputes, including the partisan gerrymandering case just decided by the Supreme Court. In addition, the Article highlights the importance of temporal aggregation for a number of concrete disputes in voting rights theory and doctrine. Understanding the temporal dimension of voting rights expands the available strategies for incorporating minority voices into legislative assemblies, provides a new perspective on the debates over partisan gerrymandering, and helps reconcile disagreements over the appropriate role of competition in the electoral process.
And here is a bit more from the text:
Finally, the harms and benefits of a voting rights regulation can be aggregated over time. Whether a voting regulation causes a cognizable injury often depends on how broadly one draws the temporal frame within which one evaluates the regulation. Imagine a hypothetical voting rule that burdens the voting rights of a group in time period 1, but then benefits that group in time period 2. If members of the group challenge that rule, a court’s evaluation of the merits of the group’s claim may turn on how broadly the court aggregates the right to vote in the temporal dimension. If the court selects a narrow temporal frame that includes only time period 1, it will conclude that the rule burdens the group’s voting rights. But if the court selects a broader temporal frame that includes both time periods 1 and 2, it can offset the burden in period 1 against the benefit in period 2. Accordingly, the court may conclude that the plaintiffs have a viable voting rights claim if it selects the narrow temporal frame, but it may reject the plaintiffs’ claim if it selects the broader temporal frame.
Very interesting paper!
