Monthly Archives: June 2012

“Googling the Future of the Voting Rights Act”

Below, a piece by Chris Elmendorf on statistical tests for racism, and their impact on the Voting Rights Act.  Originally published in JURIST (, and available there at

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Enacted in 1965 and reauthorized several times since, the Voting Rights Act (VRA) has long been regarded as the capstone of our nation’s civil rights architecture. The VRA’s core provisions have, however, come under sharp criticism from commentators and jurists who consider them outmoded or even unconstitutional in a society that is far more racially tolerant than it was in 1965. Defenders of the VRA argue that it remains necessary because contemporary racial prejudices or the lingering effects of past discrimination represent ongoing barriers to the political aspirations of minority voters and candidates.

Beyond riling up the already converted, neither side has made much headway in this debate. Progress has been slowed by difficulties in measuring the severity and geography of contemporary racial prejudices, and the extent to which they shape voters’ decisions. Most scholars believe that survey-based measures of overt racial prejudice underestimate contemporary prejudice, because survey respondents do not want to be seen as racist or to see themselves as racist. Psychologists have developed alternative measures of “implicit bias” or “racial resentment” that do not require survey respondents to cop to being racist, but other scholars dispute the scientific [PDF] or normative [PDF] validity of these metrics. And whatever one makes of the metrics, they have not yet yielded a fine-grained picture of the geography of racial discrimination, which is necessary to resolve current controversies about the VRA.

My purpose in writing this commentary is not to describe the contours of seemingly intractable debate, but to argue that answers are finally at hand — thanks to path-breaking new research on the geography of discrimination. Seth Stephens-Davidowitz, a doctoral student in economics at Harvard, is deploying publicly available information to measure the frequency with which Google searches use the “n-word” in each of the nation’s 210 media markets. (It turns out that most searchers who used the n-word were looking for derogatory jokes about black people.) He shows [PDF] that in relatively prejudiced regions, then-candidate for president, Barack Obama, substantially underperformed relative to his expected vote share.

I argue here that Stephens-Davidowitz’s research is likely to be the nail in the coffin of Section 5 of the VRA, which requires jurisdictions in certain regions of the country to “pre-clear” changes to their election laws with the US Department of Justice or the District Court of the District of Columbia. But even as it hastens the demise of Section 5, Stephens-Davidowitz’s work should greatly strengthen Section 2 of the Act, which applies nationally and which prohibits election laws that “result” in minority voters having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

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“Redistricting Petitioners in Maryland in Final Push for Names”

If this petition drive succeeds, it would put Maryland’s congressional map up for referendum.  The only other such referendum over new redistricting lines that I’m aware of is the referendum over California’s state Senate lines (there was an earlier drive to put Ohio’s new lines to a referendum, since abandoned).  Anyone else know of any others?

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“IRS Probes Nonprofit Political Groups”

That’s the title of a story from yesterday’s Wall St. Journal.    As a follow-up, Paul Streckfus’ EO Tax Journal (paid service) asked some intriguing questions about the source of the information that the IRS is taking steps to investigate Crossroads GPS specifically.

Streckfus also sent along a partial transcript of the relevant remarks by Holly Paz, the acting director of Exempt Organization Rulings and Agreements at the IRS, and the official quoted in the Journal story.  Ms. Paz was speaking to the American Institute of CPAs — full transcript (quoted with permission) after the jump.

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John Roberts as Mona Lisa

Her enigmatic, knowing smile comes to mind each time I re-read Chief Justice Roberts’s opinion. How much of his opinion reflects his own purely internal legal analysis, how much his concern for perceptions about the institutional authority and legitimacy of the Court? Did he always accept the tax power argument or did his views shift during the course of the opinion-writing process? Did he do any work to persuade Justices Breyer and Kagan to join his opinion on the Medicaid issue, or was that their view from the start? John Roberts is hauntingly, gently smiling out at us from his opinion, and we will be staring back at it for years trying to come to terms with all that the opinion might or might not imply.