Epstein: NAMUDNO and the Dilemma of Observational Equivalence

David Epstein sends along this guest post:

    Observers reacted to the NAMUDNO punt with a sigh of relief, but also as a bit of a missed opportunity: rather than have this case provide guidance for the next round of redistricting, the next round of redistricting will probably serve as input for the court’s disposition of Section 5. So let’s look ahead a bit and try to game out what influence the court’s ruling, or lack thereof, should have on the redistrictings following the 2010 census.
    The crucial concept to begin with here is what political scientists call “observational equivalence,” or the difficulty of proving a negative. The question is whether Section 5 is still necessary. Southern states point to the near absence of preclearance requests denied under Section 5 to argue that they have reformed. Civil rights groups say that the lack of discriminatory actions is proof that Section 5 works, and that to dismantle it is to risk returning to the bad old pre-VRA days.
    The problem is that a world in which Section 5 procedures are unnecessary is observationally equivalent to a world where they are necessary and completely effective. Either way, the result is no violations for the federal government to overturn. It is unarguable that, historically, Section 5 was a key component to dismantling the South’s panoply of discriminatory institutions. But this state of affairs can’t go on forever, and how can one tell when it’s OK for the federal government to take its thumb off the scales?
    If the only data we had came from the South, this would be a near-impossible question to answer. But luckily we have the whole rest of the country to use as a control group — even better, since the question is whether the South (and other covered jurisdictions) should be singled out for preclearance requirements, a natural standard would be whether their electoral processes work to disadvantage minorities more than in the rest of the country.
    So one could imagine, for instance, a civil rights version of the 1988 Seattle-Vancouver handgun violence study. Seattle and Vancouver are very similar socio-economically, except that in 1978 Canada essentially banned handgun carrying and handgun acquisition for self defense. Sure enough, although it had only slightly more aggravated assaults than Vancouver, Seattle had far more homicides than did Vancouver, with the difference mainly attributable to assaults with handguns. This type of study could be repeated with a number of Southern and non-Southern cities to test for rates of minority voting, office-holding, social benefits, and so on.
    Until then, though, Southern states will have incentives to be very cautious. Given the difficulty in proving a negative, the South will probably concentrate on not proving a positive; that is, to engage in behavior that will appear to be retrogressive or anti-minority. This is especially true with a Democratic administration vigilantly enforcing Section 5; Texas’s mid-decade redistricting and Georgia’s voter ID laws, both passed under a Republican administration, now seem a bit ill-advised, as they perpetuate the image of the South as restricting minorities’ political influence through any means possible.
    Notice that this forecasted caution will exacerbate the problem Nate Persily points out; namely, that it may indeed be difficult to find a way for the Court to directly rule on the constitutionality of Section 5. They can, after all, force jurisdictions to seek bailout first, and then rule only on the bailout provisions of the VRA, rather than Section 5 itself. One of Persily’s possible approaches to challenging Section 5 rests on a Georgia v. Ashcroft-type case, where a state’s redistricting plan is denied preclearance and then this is used as a vehicle to attack the preclearance requirement itself. But if no state sticks its neck out, this avenue too would be closed.
    So, probably not much will happen politically until the Court rules on a direct challenge to Section 5 (if it ever does). Which means that it will be up to social scientists, in all likelihood, to tackle the observational equivalence problem and change the intellectual terrain between NAMUDNO and the next big voting rights case.

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