Category Archives: guest blogging election law scholarship

A Justice’s Perspective on Moore v. Harper

Justice Scott Kafker of the Massachusetts Supreme Judicial Court and his co-author Simon Jacobs have published a new article, The Supreme Court Summons the Ghosts of Bush v. Gore: How Moore v. Harper Haunts State and Federal Constitutional Interpretation of Election Laws, 59 Wake Forest L. Rev. 61 (2024).

There is a dangerous lack of clarity in the Supreme Court’s recent decision in Moore v. Harper, which held that state supreme courts’ interpretations of their state election laws are subject to review and reversal in federal court when “they transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislature to regulate federal elections.” By resurrecting the reasoning of Bush v. Gore, with particular emphasis on the concurrence by Chief Justice Rehnquist, the Supreme Court risks unleashing the same chaotic reaction to the judiciary caused by the original decision.

But this is not necessary. In our view, the original understanding of the Elections Clause provides for a very limited form of additional federal oversight. The provision does not authorize the Supreme Court to substitute its judgment for state courts on the meaning of state election statutes or state constitutions, as Chief Justice Rehnquist did in Bush v. Gore. Nor does it authorize an open-ended inquiry into what it means to transgress the ordinary bounds of judicial review, as there is no consensus on the Supreme Court or other courts on what that means. It also does not prevent state courts from providing greater protection of voting rights than that provided by state legislatures or the federal Constitution when such rights are granted by the state constitution. Nor does it impose a particular interpretive methodology on state courts in interpreting their constitutions or the federal constitutional conception of separation of powers or stare decisis. It only prevents state courts from performing the function of state legislatures, as the state legislatures are expressly responsible under the federal Constitution for prescribing the time, place, and manner of elections, subject to state constitutional review. Justice Souter’s dissent in Bush v. Gore encapsulates the overreach at issue. State courts may not create new election laws untethered to the legislative act or state constitutional provision in question. Such fundamental rewriting of the election laws, and usurpation of the legislative function is forbidden.

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“Reducing Election Litigation”

I have this draft on SSRN of a piece coming out in the Fordham Law Review as a part of its recent election law symposium. It’s a small effort to think about election litigation and how it might be reduced.

I track the recent explosion in election litigation and its potential causes–new funding opportunities, inter-branch friction in states, and elsewhere (apart from the pandemic, of course). I also try to offer some substantively-neutral policy proposals that will reduce election litigation, which I think is a desirable goal: “leveling up” election law rules to reduce the friction from disparities in election administration, and eliminating federal incentives to fund party-based litigation.

One of the components of the article that has received the most attention is on the descriptive side, a look into major party disbursement data on legal expenses: DCCC, DNC, DSCC, NRCC, NRSC, & RNC. The charts are what everyone seems to focus on, so I’ll include one here, based upon my culling of FEC data:

My proposed solutions have not been met with quite as much interest. Candidly, it’s also not clear that reducing the amount of money people can contribute to major parties for election litigation will improve matters. Indeed, it may well be that a related explosion in third-party funding will simply shift matters–and shift it out of party control. And many have opposed “leveling up,” as it takes away discretion from local, and sometimes state, officials. But I hope it’s a start to thinking about some of the cause and solutions.

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“Of Steak Rubs and Symmetry: A Response to Justice Gorsuch”

A guest post by Chris Elmendorf and Eric McGhee:

During oral argument in Gill v. Whitford, the partisan gerrymandering case, Justice Gorsuch complained that the plaintiffs’ proposed test for unconstitutional gerrymanders was too much like a steak rub: “I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.” The implication is that adjudicating partisan gerrymandering cases would be like judging a Top Chef contest, with jurists relying on their personal preferences to deem the map at issue yummy or unpalatable.

One of us is the creator of the “efficiency gap,” a measure of partisan gerrymandering that has played an important role in this case. Together we filed an amicus brief that outlined the properties and uses of both the efficiency gap and a variety of other partisan gerrymandering metrics. As such, we have an interest in making sure that the social science of this case is understood and used properly. Although Gorsuch might make an excellent steak rub, we don’t think his metaphor caries well to the evidence or proposed standards in this case.

The metaphor is apt for totality-of-circumstances balancing tests, such as the constitutional test for procedural due process, and, arguably, the test for racial vote dilution under the Voting Rights Act. But the tests on offer for partisan gerrymandering claims—including the plaintiffs’ test, and the test suggested in an influential amicus brief by biostatistician Eric Lander—do not invite or require balancing.

There is, first, an objective, well-defined question to be answered: Is the legislative map substantially asymmetric with respect to the conversion of votes into seats—meaning that each party is likely to receive quite different seat shares for a given share of the vote? To ask whether a map is asymmetric in a partisan gerrymandering case is akin to asking, in a toxic torts case, whether a chemical released in an industrial accident causes cancer. A judge in the torts case might consider epidemiological evidence, lab experiments on mice, and biomechanical studies of cell division. But the question to be answered is not whether these three types of evidence, considered together, show the plaintiffs to be morally deserving of compensation (a steak-rub question). Rather, the question is objective: does the chemical cause cancer?

Similarly, the three measures of partisan symmetry introduced by the plaintiffs in Gill—the Efficiency Gap, Gelman-King bias, and the mean-median difference—each serve to answer the objective question of whether a map of legislative districts yields an asymmetric votes-to-seats curve. The measures are extremely highly correlated in competitive states like Wisconsin. They diverge somewhat in politically lopsided states, but the reason for the divergence is well understood and points to a clear choice among the metrics.

If a legislative map were shown to have substantial asymmetry, then under the plaintiffs’ proposed test, the court would ask whether that degree of asymmetry can be explained by neutral factors, such as the geographic distribution of each party’s supporters. No balancing is involved: the court would not weigh the size of the asymmetry against the likelihood that it arose by chance, or against the weightiness of the state’s official (legitimate) redistricting criteria. Indeed, to minimize judicial discretion at this stage, judges could use redistricting simulations to determine whether the map at issue is an outlier relative to the range of algorithmically generated maps.

Courts applying this approach would eventually have to settle on quantitative thresholds for “substantial” asymmetry, and for “outlier” status relative to simulated maps, but this is no different than what the courts did in malapportionment cases after Reynolds v. Sims. Also, while the plaintiffs in Gill formulated the substantial-asymmetry question as a two-part inquiry into magnitude and durability, these steps could easily be collapsed into one if courts focused on the expected rather than the observed level of asymmetry, where expected asymmetry is an average taken over the range of historically plausible partisan swings.

Ironically, the only serious subjectivity in the plaintiffs’ proposed test lies in the intent prong—whether the map was adopted to benefit the favored political party. This inquiry may turn on a judge’s priors in cases where the legislators worked hard to conceal their motives. The irony is that no one disputes that the intent prong is manageable. Intent tests are ubiquitous in constitutional law. But to the extent that the Supreme Court worries about judges simply voting for their party in gerrymandering cases (or being perceived to do so), the Supreme Court could implement the intent prong via conclusive presumptions based on the composition of the legislature (partisan intent presumed if the advantaged party held a majority of the seats when the map was enacted), or based on the results of computer simulations (partisan intent presumed if the map is an outlier relative to the distribution of simulated maps).

Again, our purpose here is not to argue for any particular outcome for the Wisconsin plan. The Supreme Court must decide whether this gerrymander is too extreme. But the Justices need not worry that the available metrics are too variegated for manageable adjudication. Steak rubs are great at the grill, and perhaps in some cases they should season the law too. But partisan symmetry is not a steak rub concept, and Gill is not a steak rub case.

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The Future of the Party and Campaign Finance — A Response to Bob Bauer

(with Joey Fishkin, University of Texas Law School)

Bob Bauer just offered a thoughtful and engaging commentary on our work and a new report by the Brennan Center, both focused on the relationship between the political parties and campaign finance. We agree with part of Bob’s post and think the rest is plausible—and who knows, he might even be right.

An outsider might find it strange that we’d find a post that is nominally a challenge to our work to be so convincing. But the truth is that none of us can make dependable predictions in the highly volatile world of politics these days. We’re in uncharted territory. For instance, these days no one can even confidently identify which candidate the once-predictable Republican primary electorate is going to choose as a standard bearer—in part because the old rule, which was that the winner will be the establishment candidate with all the hard-money donors, no longer seems to be the rule. Things are changing more quickly than anyone anticipated, and we’re all struggling just to keep up with the latest innovations of this campaign season.

The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the SupertPACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.

We think Bob may overstate the differences between our positions, though that’s likely due to a failure of exposition on our part. Bob reads us as opposing all change in the way we fund parties. But we are pretty close to where Bob is on these questions. We aren’t ready to go as far as Tom Edsall and lift all restrictions. But, like Bob, we are certainly open to a more robust funding structure, especially one targeted—as the Brennan Center’s report is—at certain type of party activities. At least one of us is ready to support substantial increases in the contribution caps, and both of us favor allowing candidates and parties to work more closely together in raising and spending money. We’re just not ready to reproduce, jot for jot, the funding structure for the parties that we now have for the SuperPACs and 501(c) organizations.

It’s possible that both Bob and the two of us are right, and it’s just as possible that we all are wrong. And therein lies the dilemma for those interested in reform. The two of us are nervous about flipping the switch and letting the parties raise unlimited sums. We thus approach the problem more cautiously than Bob. He seems ready to flip the switch, at least as an experiment. We think it is better to be cautious. To mix our metaphors in an egregious fashion, it’s going to be very hard to put the genie back in the bottle. Once the parties become accustomed to unlimited fundraising, what incentive will they have to regulate themselves? And if donors become accustomed to ruling the official party organizations the way they rule their own shadow party entities, those expectations will become very hard to unwind. Even so, it’s important to give Bob’s proposal its due, and that is this: There are costs to not acting just as there are costs to acting. There are costs to doing too little as well as to doing too much. The formal parties might well wither and die if we don’t find some way to get them the funding to compete. We’re all muddling through, in other words.

Modesty is an underappreciated virtue in academic writing, and our paper had modest aims. We were under no illusions that everyone would be convinced that we were right on the prediction side; we aren’t that certain we are right ourselves. What we wanted to do was spark a different conversation about the future of the political parties, one that wasn’t confined to “strengthening” the parties but that paid attention to the crucial institutional differences between the shadow parties and the formal parties. We wanted, in short, to spark just the conversation that Bob and the Brennan Center and others are now having.


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An Academic Elegy

Guy-Urïel Charles and Luis Fuentes-Rohwer, have a new piece in the Iowa Law Review. I offered a commentary, here. Just to give you a flavor for the piece is, here’s a brief excerpt from my introduction, which offers a rough summary of their argument:

It feels like a moment. I know I’m supposed to analyze this piece from a purely academic perspective, but first I want to mark the occasion. Guy-Urïel Charles and Luis Fuentes-Rohwer, two of the most astute commentators on the intersection of election law and civil rights, think it’s time to give up on Section 5 of the Voting Rights Act (“VRA”), perhaps it’s even time to give up on the civil-rights paradigm altogether. When I assigned this paper to my class, one of the students said that she realized it’s time for her to start mourning the Voting Rights Act because it’s never coming back.

For me, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But when the always-wise and ever-optimistic Guy Charles—the academic who insisted in 2006 that the civil-rights community should reject the renewal act and try for better—tells us that something’s over, it’s probably over. When the duo that valiantly tried to lay the groundwork for rebuilding Section 5 tells you it’s time to chart a different course, it’s probably time to chart a different course.

None of this will be easy to hear if you still subscribe to the political consensus that animated the Voting Rights Act, if you believe that Section 5 was the crown jewel of the VRA, if you think that we still need an administrative alternative to costly litigation for race-based voting claims. Now feels like an especially hard time to hear that we must set aside the race-discrimination model given how large Ferguson and Garner loom. Which is why it takes a certain kind of courage to write what Charles and Fuentes-Rohwer have written here. If you think it’s hard to hear these things, just imagine how hard it is to write them, at least for people who haven’t spent their careers playing the studied contrarian.

Academic pieces are strange creatures, and they aren’t well suited for elegies. Yet this feels like one to me. Academics are strange creatures themselves. Perhaps, then, it’s not surprising that an elegy by two scholars would come in the form this one does: the systematic, clear-eyed, and relentless documenting of the death of a superstatute. It feels like the scholarly equivalent of a doctor calling it when the patient’s heart has stopped.

Perhaps because this is an elegy wrapped in a piece of scholarship, some readers will offer the conventional academic critique and say that there are really two articles here. The first half of the Article charts the death of a superstatute, and the second imagines a new future for voting rights.

At first glance, the two subjects seem unrelated. The first half enters into a conversation (carried on mostly by my colleagues at Yale) about what Ernie Young has called “the constitution outside the Constitution” — those sturdy, stable programs and principles that constitute our society even if they are not enshrined in our Constitution’s text. The death of a superstatute is an understudied topic precisely because superstatutes aren’t supposed to die. The second half of the Article, meanwhile, continues a conversation that the field of election law had been having ever since the oral argument in Northwest Austin Municipal District No. 1 v. Holder (“NAMUDNO”), one that is more pragmatically focused on identifying a framework for resolving elections claims. That conversation is not nearly as wide-ranging or theoretically oriented as the one on superstatutes. Election law scholars, after all, are trying to come up with a regulatory scheme at the intersection of what Congress can pass and what the Court can accept, and it may well be a null set. These are different conversations, and it’s no wonder that the two halves of the Article read so differently.

While I have something to say about each part of the Article, I think the two pieces are much more closely related than that. To be sure, the effort to chart the death of a superstatute is interesting standing alone and generates its own cache of insights, as I note below. But this argument serves a larger purpose here: It reminds you how much work it takes to maintain a superstatute in the first place. Those who resist the premise of the second half of the Article—that it’s time to chart a new course—must first grapple with the truths in the first half of the Article. As the authors show, it was a huge lift to get three branches of government to work in conjunction with one another to support Section 5. For those who think that all we need is a fifth vote on the Supreme Court to restore Section 5 to her old glory, Charles and Fuentes-Rohwer remind us just how many times the Court and Congress and the Executive Branch had to bend over backwards not just to keep the old girl alive, but to maintain Section 5 as a vibrant regulatory framework. This analysis will be sobering to those who want to cast Shelby County simply as a 5–4 ruling rather than part of a political sea change. Indeed, the first half of the Article makes clear just how far these tides have receded. While the two halves of the Article are quite different, then, they plainly work in tandem and deepen the authors’ argument along almost every dimension.

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The Political Safeguards of Horizontal Federalism

Over at Balkinization, I’ve been blogging (here, here, here, and here) about the benefits associated with spillovers, which occur when one state’s policies affect citizens of another state. Most of those arguments have to do with my other field, federalism. But they are relevant to two debates in election law. First, to the extent that election law scholars are interested in the role that political parties play in safeguarding vertical federalism, a topic that has inspired great articles from both Larry Kramer and Jessica Bulman-Pozen, I speculate that political parties play an equally important role in safeguarding horizontal federalism. Second, to the extent that we are all worried about polarization and the “big sort,” interstate spillovers may provide a partial antidote to polarization’s worst excesses. That’s because they force all of us to live under someone else’s law. You might think that living under someone else’s law is a terrible thing because it violates the deep-seated democratic principle of self-rule. But democracy isn’t only about self-rule; it’s also about ruling together. Given our impulse to retreat into our all-too comfortable red or blue enclaves, it’s very useful for our worlds to collide now and then. Those collisions give us a chance to see how other people live, to live under someone else’s law, to try someone else’s policy on for size. Democracy, in short, requires us to do just what spillovers require us to do: Work it out. Sometimes we work it out directly. Sometimes we need a referee. Sometimes we just take our lumps and live under a policy we don’t like. And we do so for a simple reason: We’d rather live with other people than without them.

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Justice Kennedy Channels John Hart Ely: Windsor’s Effort to Clear the Channels of Political Change

For the last few days, I’ve been blogging about a new paper of mine on Windsor v. United States over on Balkinization (here, here, and here). I offer a new spin on it, one that invokes Ely’s Democracy and Distrust and depicts Windsor as an effort to “clear the channels of political change.” You might find the posts interesting if you want to read more about what I call the “interlocking gears or rights and structure,” which help explain the many mysteries in the opinion, the democratic purposes federalism serves, and the ways in which Windsor can be understood as an Ely-like move. Or just think of this as an invitation to join those of us writing at the intersection of federalism and election law, including Jessica Bulman-Pozen and Franita Tolson. Come on in — the water’s warm…

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Re: From the Hobby Lobby oral argument: Should legislation passed by unanimous vote be invalidated or narrowly construed?

Will Baude’s Washington Post piece raises an interesting significance-of-the-legislative-process question. While Will (and the Court) frames the issue in constitutional terms, it has obvious statutory interpretation implications as well. Just a few things that popped out at me while reading Will’s piece:

1. On Justice Scalia’s Shelby County v. Holder comment that the unanimous vote in favor of renewing the VRA was about the “perpetuation of racial entitlement” and the difficulty of undoing such entitlements through the normal legislative process:  Much has been written about this comment, but what strikes me is that it seems almost like a cousin—a hostile cousin, but a cousin—of the representation-reinforcement based canon of statutory construction advocated by Bill Eskridge and Cass Sunstein in the 1990s. Eskridge and Sunstein argued that in order to counteract the legislative process’s tendency to favor wealthy, well-organized interests over diffuse unorganized ones, courts should err on the side of construing statutes in favor of politically-disadvantaged litigants. As a corollary, they also advocated that when faced with a statute manifestly designed to benefit a narrow interest at the expense of a diffuse one (such as, say, a statute containing a tax exemption or a subsidy), courts should construe that statute narrowly, to limit the targeted benefit. Justice Scalia’s suggestion that civil rights statutes effect “racial entitlements” that should be viewed with skepticism turns the Eskridge-Sunstein principle on its head, since Eskridge and Sunstein would consider racial minorities a politically-disadvantaged group, but it sounds in similar concerns about legislative process (dys)function. The difference is simply in which interest groups one considers to be politically-favored or entrenched. The Supreme Court has never really embraced the proposed representation-reinforcement canon, however, and despite Justice Scalia’s famous comment in Shelby County, it remains unlikely to do so.

2. Justice Ginsburg’s comments in Hobby Lobby, noting that “People from all sides of the political spectrum voted for [RFRA]” and arguing that “It seems strange that there would have been that tremendous uniformity if it means what you said it means, to cover profit corporations”—strikes me as a different kind of argument altogether. Her comment focuses on legislative intent, not interest group politics and seems to me to be a relative, if not quite a cousin, of the Dog That Didn’t Bark canon. That canon reflects a Sherlock Holmes-inspired principle that if Congress intends for a statute to work a significant change in the status quo, we should expect to see some legislator, somewhere in the legislative record, comment on the change—and that legislative silence therefore can be taken as a sign that the statute does not effect any radical departure from the status quo. Justice Ginsburg seems to be inferring, in a related vein, that the unanimity of the vote adopting RFRA may tell us something about congressional intent—i.e., that the statute does not take the controversial, politically-divisive step of covering profit corporations.

3. Ultimately, Baude comments that “It’s perilous to think that the vote total tells us that much about what a statute means.” I completely agree. Different legislators vote for (or against) a statute for many different reasons, and their final vote tells us nothing about those reasons. Of course, Justice Scalia often has made precisely this legislative process observation. (See, e.g., his rants against inferences based on rejected legislative proposals in Rapanos v. United States and Johnson v. Transportation Agency). So his comments in Shelby County are surprising, not just for their content, but also from a methodological standpoint.

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“Elmendorf: Making Sense of Section 2 – Part 5 (Revisiting the Conservative Critique)”

Here is the final guest post from Chris Elmendorf on his forthcoming paper:

Critics of Section 2 have long voiced three specific complaints.  In this final blog post about my paper, I’m going to revisit those objections and highlight what’s new in my response.

It is said, first, that Section 2 provides no guidance about the nature of the harms it targets or directives for its judicial administration.  The results test notionally protects racial minorities against vote dilution, but neither Congress nor the Supreme Court has been able or willing to explain what vote dilution is, except to say that its presence may be detected through a mysterious judicial inquiry into the “totality of circumstances.”

The second purported problem with Section 2 is its uncertain relationship to the VRA’s overarching ambition: “to hasten the waning of racism in American politics.”  Section 2 in operation has powerfully encouraged the drawing of supermajority-minority electoral districts, a practice which, some fear, “may balkanize us into competing racial factions[,] . . . carry[ing] us further from the goal of a political system in which race no longer matters . . . .”

Finally, the critics say, it is doubtful whether Section 2 as an exercise of congressional enforcement authority under the Fourteenth and Fifteenth Amendments is a congruent and proportional response to constitutional violations. This objection follows from the others.  If it’s not clear what harms Section 2 guards against, and if Section 2 in practice precipitates racial conflict, then Section 2 is probably not a reasonable congressional remedy for constitutional violations.

The account of Section 2 developed in my paper answers each prong of this critique.

Continue reading “Elmendorf: Making Sense of Section 2 – Part 5 (Revisiting the Conservative Critique)”

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“Elmendorf: Making Sense of Section 2 – Part 4 (Judicial Lawmaking Authority and Stare Decisis)”

Here is Chris Elmendorf’s latest guest blog post:

In my last two posts, I argued that constitutional doubts about Section 2 could be resolved by conditioning liability on a showing that the plaintiffs’ injury resulted from race-biased decisionmaking by public officials or the majority-group electorate.  Though it’s clear from the legislative history that liability under Section 2 does not depend on proof of intentional discrimination by conventional state actors, the text and legislative history of Section 2 are compatible with a requirement that plaintiffs show “to a significant likelihood” that the decisions in question were infected by racial bias (prejudice or stereotyping).

However, if the courts were to hold that Section 2 demands this “significant likelihood” showing, the courts would for all intents and purposes be acting as lawmakers.  The text of Section 2, though compatible with this requirement, certainly doesn’t suggest it, nor did any member of the enacting Congress.

My post today addresses two questions about judicial lawmaking authority under Section 2.  First, when Congress amended Section 2 in response to City of Mobile v. Bolden, did Congress delegate authority to the courts to play the role of creative partner in developing a common law of racially fair elections, or did Congress intend to fix a particular legal standard in place?  Second, to the extent that courts have lawmaking authority under Section 2, should Section 2 precedents have the weak stare effect of precedents under common law statutes (like the Sherman Act), or the “super strong” stare decisis characteristic of most statutory precedents?

Continue reading “Elmendorf: Making Sense of Section 2 – Part 4 (Judicial Lawmaking Authority and Stare Decisis)”

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Elmendorf: Making Sense of Section 2 – Part 3 (The Electorate as State Actor)

Here’ Chris Elmendorf’s latest guest post:

In yesterday’s post, I argued that constitutional doubts about Section 2’s results test would be put to rest if plaintiffs were required to show that their injury resulted from race-biased (prejudiced or stereotyped) decisions by conventional state actors or majority-group voters.  This is so even if plaintiffs need to establish only a “significant likelihood” of racial bias, as opposed to proving discrimination “more likely than not.”  The constitutional argument is straightforward if the discriminators are ordinary state actors, such as legislators, pollworkers, prison wardens, or public school administrators.

But what if the plaintiff only shows race-biased decisionmaking by voters?  Societal discrimination was an overriding concern of the Congress that adopted the results test.  Yet private race-discriminatory behavior does not violate the Constitution, so in what sense could a Section 2 that targets such behavior be a congruent and proportional remedy for constitutional violations?  The answer lies in the problem of election outcomes that are unconstitutional because they were determined by race-biased voting.

Continue reading Elmendorf: Making Sense of Section 2 – Part 3 (The Electorate as State Actor)

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Elemendorf: Making Sense of Section 2 – Part 2 (Injury and Proof)

Here’s Chris Elmendorf’s second guest post on his forthcoming piece:

Enacted by Congress in 1982, Section 2 of the Voting Rights Act (VRA) bans electoral structures “which result[]” in members of a class of citizens defined by race or color “hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”  During congressional debates on the bill, critics asked supporters of the proposed results test to identify the “core value” they meant to protect.  Whether for reasons of strategy or genuine confusion, the proponents essentially dodged this question, saying only that they intended to restore the legal status quo prior to the Supreme Court’s decision in City of Mobile v. Bolden.  (The Bolden plurality wrote that the 14th Amendment disallows electoral structures that “dilute” minority political power only if the structure was adopted or maintained for discriminatory reasons.)

In the years since 1982, the Supreme Court has struggled to identify Section 2’s core value.  An antidiscrimination results test necessarily presupposes some benchmark conception of neutrality or fairness against which an allegedly discriminatory result may be measured.  As my paper explains, the Supreme Court’s cases variously hint at three different conceptions of the normative benchmark for vote dilution claims, i.e., the entitlement that Section 2 protects: (1) the opportunity to elect a roughly proportionate number of ideally preferred representatives; (2) the representational opportunity that the minority community would have enjoyed under a typical scheme of single-member districts; and (3) the representational opportunity that the minority community would have had absent race-biased decisionmaking by conventional state actors (or majority-group voters).

The third benchmark is in my view the most defensible.  A number of lower courts agree and the law is moving in this direction.  But there is a serious problem with reading Section 2 such that liability depends on proof of intentional discrimination: the framers of the results test were adamantly opposed to intent tests.  The legislative history voices several specific objections to the Bolden plurality’s approach.  The intent test “asks the wrong question”; it’s “unnecessarily divisive”; and it poses an “inordinately difficult burden for plaintiffs in most cases.”  Yet the legislative history also shows that Congress was very much concerned with impairments of minority political opportunity that result from racial prejudice.

It’s possible to reconcile the legislative history’s objections to intent tests with its tacit endorsement of an intent-sensitive benchmark for what is a discriminatory “result” within the meaning of Section 2.  The trick is to expand the object of the intent test (from the lawmakers who enacted the electoral arrangements at issue, to all public actors and majority-group voters whose biased decisions affect minority electoral opportunities), and to relax the standard of proof that plaintiffs must satisfy (from “more likely than not” to something more lenient, such as “significantly likely”).

Let me be clear: I am not arguing that Section 2’s legislative history compels the conclusion that plaintiffs trace their injury to racially biased decisionmaking shown to a “significant likelihood.”  Section’s 2’s text and legislative history are perfectly compatible with a mushy, unstructured legal standard in which liability turns on the judge’s unexplained weighing of any number of factors related to minority political participation, past discrimination, socio-economic conditions, voting patterns, and the electoral system itself.  But the requirement I propose makes sense of the warring intuitions in the legislative history, and would make Section 2 adjudication more normatively transparent.  And as I’ll explain next, it substantially resolves some lingering doubts about Section 2’s constitutionality.

Congress enacted the Section 2 results test as an exercise of its power to enforce the Fourteenth and Fifteenth Amendments.  The Supreme Court has since held that enforcement legislation under the Fourteenth Amendment is permissible only insofar as it is a “congruent and proportional” response to constitutional violations.  (The same tailoring and proportionality requirement likely applies to enforcement legislation under the Fifteenth Amendment.)

[Continue reading below the fold] Continue reading Elemendorf: Making Sense of Section 2 – Part 2 (Injury and Proof)

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Elemendorf: Making Sense of Section 2: Part I

Here is Chris Elmendorf’s first guest blog post:

Rick Hasen has kindly invited me to guest-blog this week about my forthcoming article,  Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. (2012).

Section 2, the Voting Rights Act’s core provision of nationwide application, has fallen into disfavor.  Conservative critics portray it as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional.  The Supreme Court has cabined Section 2 with severe gatekeeping conditions.  In vote dilution cases, plaintiffs who cannot show the possibility of establishing a compact, majority-minority, single-member district—holding constant the size of the governing body—will be kicked out of court without any consideration of the remedial arrangements they propose.  The constitutional avoidance canon has been a mainstay of these decisions.  Further and more drastic interpretive narrowings are likely.

My paper provides an interpretive reconstruction of Section 2 that responds to the conservative critique, while accepting the jurisprudential and normative suppositions of the now-quite-conservative judicial center.

If the courts accept my reconstruction, the Voting Rights Act will remain surprisingly robust.  Plaintiffs would not have to prove intentional discrimination by conventional state actors.  Remedies designed to enable the election of minority candidates would continue to be issued.  Plaintiffs could challenge presently untouchable electoral arrangements that encourage or perpetuate racially biased voting.  And courts would have strong grounds to overrule barrier-erecting Section 2 precedents that rest on the avoidance canon.

Three ideas anchor my account of Section 2.  I’ll develop them in blog posts over the next few days, but for now, here’s a preview.

Injury, and Proof Thereof.  Section 2 on my account is centrally concerned with alleviating burdens on minority political participation and representation that result from race-biased (prejudiced or stereotyped) decisionmaking by majority-group actors.  Section 2 plaintiffs should be required to trace the injury of which they complain to biased decisions, whether by conventional state actors or by the majority-group electorate.  However, plaintiffs need not prove racial bias in accordance with the conventional, preponderance-of-the-evidence standard.  It should suffice for plaintiffs to show a “significant likelihood” of bias, rather than proving it more likely than not.  The approach I suggest reconciles the legislative history’s conflicting messages about Section 2 and intentional discrimination.  And, when paired with my next idea, it substantially resolves constitutional doubts about Section 2.

Section 2’s Constitutional Function.  The constitutional function of Section 2 is to cure, or compensate for, racially biased state action that adversely affects minorities’ opportunity to participate in the political process and to elect responsive candidates.  Of central importance, Section 2 ameliorates a type of constitutional violation that cannot be remedied through ordinary constitutional litigation: the election outcome that is unconstitutional because of the racial basis for the electorate’s verdict.  I argue that, though the individual citizen may have a First Amendment right to vote for “whatever reason he pleases,” the electorate as a whole is a state actor when it puts in office an official who wields or directs the coercive authority of the state.  Yet electorate-motive challenges to the outcome of an election for representative almost certainly should be dismissed on political question grounds.  Because the underlying constitutional norm cannot be protected by the courts absent congressional enforcement legislation, the “congruence and proportionality” test for constitutional validity should be applied to Section 2 with a very light touch.

Section 2’s Delegation.  Section 2 should be understood as a common law statute, or statutory section.  It delegates authority to the courts to develop a flexible, evolving body of law in response to infections of the electoral process by racial bias.  Section 2 precedents deserve the weak stare decisis effect of precedents under the Sherman Act, the paradigmatic common law statute, rather than the “super strong” stare decisis typical of statutory precedents.  The weak stare decisis effect of Section 2 precedents means, among other things, that new understandings of what Section 2 aims to accomplish (and how) can still have a large effect on Section 2 jurisprudence, notwithstanding the accretion of case law over the last thirty years.

In blog posts over the next several days, I will explain the critique of Section 2 that motivates my paper, the nub of my response, and some practical implications.  I will pay special attention to the question of why election outcomes should be thought unconstitutional if the electorate acts on the basis of racial considerations that the Constitution denies to the state.  This idea may strike some readers as peculiar, and my constitutional defense of Section 2 depends upon it.  I very much look forward to readers’ comments.

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Chris Elmendorf Guest Blogging This Week on New Voting Rights Act Article

As the latest in my series of scholars guest-blogging on new or forthcoming election law scholarship, I am happy to report that Chris Elmendorf of UC Davis will be guest blogging this week on his provocative new article,  Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. (2012).

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