"Why Counting Votes Doesn't Add Up: A Response to Cox and Miles' 'Judging the Voting Rights Act'"

Ellen Katz and Anna Baldwin have posted this draft on SSRN. Here is the abstract:

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles posit that their findings "contrast" and "cast doubt" on the core findings we reported in two related studies. Cox and Miles do not dispute our finding that Section 2 plaintiffs have been more likely to prevail in jurisdictions "covered" by the temporary provisions of the Voting Rights Act than elsewhere. Instead, they observe that the votes judges cast in Section 2 cases in covered jurisdictions were no more likely to favor liability than the votes they cast in non-covered ones. Based on this observation, Cox and Miles conclude that coverage does not matter.

The observation about votes is correct but the conclusion is not. To be sure, the votes Cox and Miles chose to count do not, standing alone, show that covered jurisdictions "still have more voting rights problems" than non-covered ones. But no good reason exists to suspect that they would. Counting votes by individual judges rather than examining final judgments may well illuminate a number of issues, but as a lens through which to compare covered and non-covered jurisdictions, it promises at best a skewed vision of "voting rights problems" in these regions. This brief essay explains why.

Posted by Rick Hasen at December 8, 2007 10:41 AM