[EL] Elmendorf: Making Sense of Section 2 – Part 2 (Injury and Proof)

Tue Dec 6 21:43:06 PST 2011

The Congress that enacted the Section 2 results test invoked both the 14th and 15th Amendments.  My paper treats the 14th Amendment as the basis for Section 2 insofar as the results test reaches vote dilution claims, because of the Bolden plurality's view that vote dilution is not a concern of the 15th.  The only potential payoff (that I can see) to treating the 15th rather than the 14th as the basis for the results test is that the Supreme Court has not yet held that Boerne's congruence-and-proportionality requirement applies to remedial legislation under the 15th Amendment.  But when that question is finally served up, I'd be pretty surprised if the Court says otherwise.

Best,

Chris

Christopher S. Elmendorf
Professor of Law, U.C. Davis School of Law
Visiting Professor (fall 2011), U.C. Hastings College of the Law
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Brian Landsberg [blandsberg at PACIFIC.EDU]
Sent: Tuesday, December 06, 2011 1:37 PM
To: Rick Hasen; law-election at uci.edu
Subject: [EL] Elemendorf: Making Sense of Section 2 – Part 2 (Injury and Proof)

The Elmendorf paper refers to Sec. 2 as Fourteenth Amendment legislation, citing Mobile v. Bolden.  But the VRA of 1965 was primarily Fifteenth Amendment legislation.  Certainly the legislative history of the original act was filled with explicit reliance on the Fifteenth Amendment.  See, e.g., pp. 150, 154, 157 [SG Archibald Cox on banning literacy tests], 160 [Joe Rauh & Clarence Mitchell on changes with the effect of violating the 15th], 184 [Louis Claiborne on poll tax], etc., in Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act.  I wonder whether Elmendorf?$B!G?(Bs suggestions would be stronger if they relied on the Fifteenth.

As I note in Safeguarding Constitutional Rights: The Uses and Limits of Prophylactic Rules, 66 Tenn. L. Rev. 925, 967-68 (1999), the Court in City of Rome treated the extension as a prophylactic measure and stands for ?$B!H?(Bthe proposition that prophylactic measures are permissible even if over-inclusive.?$B!I?(B

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, December 06, 2011 11:59 AM
To: law-election at uci.edu
Subject: [EL] more news 12/6/11

?$B!H?(BHerman Cain Super PAC Mulls Money?$B!I?(B<http://electionlawblog.org/?p=26175>
Posted on December 6, 2011 9:24 am<http://electionlawblog.org/?p=26175> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports<http://www.politico.com/news/stories/1211/69826.html>.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26175&title=%E2%80%9CHerman%20Cain%20Super%20PAC%20Mulls%20Money%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
?$B!H?(BStudy Finds Voters Erred Often in Using New Machines?$B!I?(B<http://electionlawblog.org/?p=26172>
Posted on December 6, 2011 9:22 am<http://electionlawblog.org/?p=26172> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://cityroom.blogs.nytimes.com/2011/12/05/study-finds-voters-erred-often-in-using-new-machines/>

As many as 60,000 of the votes cast in New York State elections last year were voided because people unintentionally cast their ballots for more than one candidate, according to a study being released this week<http://www.brennancenter.org/content/resource/design_deficiencies_and_lost_votes/>. The excess-voting was highest in predominantly black and Hispanic neighborhoods, including two Bronx election districts where 40 percent of the votes for governor were disqualified.

The study, by the Brennan Center for Justice<http://www.brennancenter.org/> at the New York University Law School, blamed software used with new electronic optical-scan voting machines as well as ambiguous instructions for disenfranchising tens of thousands of voters. The old mechanical lever-operated machines did not allow votes for more than one candidate for the same office.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26172&title=%E2%80%9CStudy%20Finds%20Voters%20Erred%20Often%20in%20Using%20New%20Machines%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18> | Comments Off
?$B!H?(BSchurick guilty of election fraud in robocall case; Former Gov. Ehrlich?$B!G?(Bs campaign manager guilty on all counts?$B!I?(B<http://electionlawblog.org/?p=26169>
Posted on December 6, 2011 9:15 am<http://electionlawblog.org/?p=26169> by Rick Hasen<http://electionlawblog.org/?author=3>

Baltimore Sun<http://www.baltimoresun.com/news/breaking/bs-md-schurick-robocalls-verdict-20111206,0,7659803.story>: ?$B!H?(BA Baltimore jury said Tuesday that Paul Schurick, former Gov. Robert L. Ehrlich Jr.?$B!G?(Bs campaign manager, was guilty of election fraud for his role in an Election Day 2010 robocall. The jury found Schurick guilty on all four counts, including election fraud and failing to include an Ehrlich campaign authorization line on the calls.?$B!I?(B
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26169&title=%E2%80%9CSchurick%20guilty%20of%20election%20fraud%20in%20robocall%20case%3B%20Former%20Gov.%20Ehrlich%E2%80%99s%20campaign%20manager%20guilty%20on%20all%20counts%E2%80%9D&description=>
Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18> | Comments Off
?$B!H?(BCalifornia?$B!G?(Bs Direct Democracy Troubles?$B!I?(B<http://electionlawblog.org/?p=26166>
Posted on December 6, 2011 8:48 am<http://electionlawblog.org/?p=26166> by Rick Hasen<http://electionlawblog.org/?author=3>

The Daily Show takes on<http://www.thedailyshow.com/watch/mon-december-5-2011/california-s-direct-democracy-troubles> direct democracy in the Golden States.  Takeaway: John Burton swears like a sailor.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26166&title=%E2%80%9CCalifornia%E2%80%99s%20Direct%20Democracy%20Troubles%E2%80%9D&description=>
Posted in direct democracy<http://electionlawblog.org/?cat=62>, election law "humor"<http://electionlawblog.org/?cat=52> | Comments Off
?$B!H?(BCitizens United International?$B!I?(B<http://electionlawblog.org/?p=26163>
Posted on December 6, 2011 8:28 am<http://electionlawblog.org/?p=26163> by Rick Hasen<http://electionlawblog.org/?author=3>

It?$B!G?(Bs not as far off<http://electionlawblog.org/?p=26137> as you might think.  SCOTUS ponders Friday.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26163&title=%E2%80%9CCitizens%20United%20International%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
?$B!H?(BLDF and NAACP Release Report on Confronting Modern Barriers to Voting Rights?$B!I?(B<http://electionlawblog.org/?p=26160>
Posted on December 6, 2011 8:26 am<http://electionlawblog.org/?p=26160> by Rick Hasen<http://electionlawblog.org/?author=3>

See this press release<http://naacpldf.org/press-release/ldf-and-naacp-release-report-confronting-modern-barriers-voting-rights> about a new report<http://naacpldf.org/files/publications/Defending%20Democracy%2012-5-11.pdf>, ?$B!H?(BDefending Democracy: Confronting Modern Barriers to Voting Rights in America.?$B!I?(B
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26160&title=%E2%80%9CLDF%20and%20NAACP%20Release%20Report%20on%20Confronting%20Modern%20Barriers%20to%20Voting%20Rights%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off
Elemendorf: Making Sense of Section 2 – Part 2 (Injury and Proof)<http://electionlawblog.org/?p=26156>
Posted on December 6, 2011 8:16 am<http://electionlawblog.org/?p=26156> by Rick Hasen<http://electionlawblog.org/?author=3>

Here?$B!G?(Bs Chris Elmendorf?$B!G?(Bs second guest post<http://electionlawblog.org/?p=26100> on his forthcoming piece:

Enacted by Congress in 1982, Section 2 of the Voting Rights Act (VRA) bans electoral structures ?$B!H?(Bwhich result[]?$B!I?(B in members of a class of citizens defined by race or color ?$B!H?(Bhav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.?$B!I?(B  During congressional debates on the bill, critics asked supporters of the proposed results test to identify the ?$B!H?(Bcore value?$B!I?(B 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?$B!G?(Bs decision in City of Mobile v. Bolden<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=446&invol=55>.  (The Bolden plurality wrote that the 14th Amendment disallows electoral structures that ?$B!H?(Bdilute?$B!I?(B 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?$B!G?(Bs core value.  An antidiscrimination results test necessarily presupposes some benchmark conception of neutrality or fairness against which an allegedly discriminatory result may be measured.  As my paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1822642> explains, the Supreme Court?$B!G?(Bs 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?$B!G?(Bs approach.  The intent test ?$B!H?(Basks the wrong question?$B!I?(B; it?$B!G?(Bs ?$B!H?(Bunnecessarily divisive?$B!I?(B; and it poses an ?$B!H?(Binordinately difficult burden for plaintiffs in most cases.?$B!I?(B  Yet the legislative history also shows that Congress was very much concerned with impairments of minority political opportunity that result from racial prejudice.

It?$B!G?(Bs possible to reconcile the legislative history?$B!G?(Bs objections to intent tests with its tacit endorsement of an intent-sensitive benchmark for what is a discriminatory ?$B!H?(Bresult?$B!I?(B 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 ?$B!H?(Bmore likely than not?$B!I?(B to something more lenient, such as ?$B!H?(Bsignificantly likely?$B!I?(B).

Let me be clear: I am not arguing that Section 2?$B!G?(Bs legislative history compels the conclusion that plaintiffs trace their injury to racially biased decisionmaking shown to a ?$B!H?(Bsignificant likelihood.?$B!I?(B  Section?$B!G?(Bs 2?$B!G?(Bs text and legislative history are perfectly compatible with a mushy, unstructured legal standard in which liability turns on the judge?$B!G?(Bs 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?$B!G?(Bll explain next, it substantially resolves some lingering doubts about Section 2?$B!G?(Bs 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<http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/000/95-2074.html> that enforcement legislation under the Fourteenth Amendment is permissible only insofar as it is a ?$B!H?(Bcongruent and proportional?$B!I?(B 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 ?$B"*?(B<http://electionlawblog.org/?p=26156#more-26156>
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Posted in guest blogging election law scholarship<http://electionlawblog.org/?cat=64>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
?$B!H?(BNew Hampshire Dispatch: Ballots Already Cast in Presidential Primary?$B!I?(B<http://electionlawblog.org/?p=26154>
Posted on December 6, 2011 8:14 am<http://electionlawblog.org/?p=26154> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.pewcenteronthestates.org/initiatives_detail.aspx?initiativeID=85899362969#Dec6> Pew election data dispatch.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26154&title=%E2%80%9CNew%20Hampshire%20Dispatch%3A%20Ballots%20Already%20Cast%20in%20Presidential%20Primary%E2%80%9D&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, election administration<http://electionlawblog.org/?cat=18> | Comments Off
?$B!H?(BIn race for campaign funds from billionaires, Romney outpaces Obama?$B!I?(B<http://electionlawblog.org/?p=26152>
Posted on December 6, 2011 8:12 am<http://electionlawblog.org/?p=26152> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports<http://www.washingtonpost.com/politics/in-race-for-campaign-funds-from-billionaires-romney-outpaces-obama/2011/12/01/gIQAxQLsXO_story.html>.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26152&title=%E2%80%9CIn%20race%20for%20campaign%20funds%20from%20billionaires%2C%20Romney%20outpaces%20Obama%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Campaign Finance Flow Chart from Mother Jones<http://electionlawblog.org/?p=26149>
Posted on December 6, 2011 8:08 am<http://electionlawblog.org/?p=26149> by Rick Hasen<http://electionlawblog.org/?author=3>

Very amusing<http://motherjones.com/politics/2011/12/campaign-finance-flow-chart>.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26149&title=Campaign%20Finance%20Flow%20Chart%20from%20Mother%20Jones&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
Read Texas?$B!G?(Bs Reply in Congressional Stay Request; SCOTUS Decision Coming Any Time<http://electionlawblog.org/?p=26145>
Posted on December 6, 2011 8:02 am<http://electionlawblog.org/?p=26145> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://electionlawblog.org/wp-content/uploads/texas-cong-reply.pdf>.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26145&title=Read%20Texas%E2%80%99s%20Reply%20in%20Congressional%20Stay%20Request%3B%20SCOTUS%20Decision%20Coming%20Any%20Time&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Vermeule on Pildes on ?$B!H?(BThe Supreme Court as a Majoritarian Institution?$B!I?(B<http://electionlawblog.org/?p=26142>
Posted on December 6, 2011 7:55 am<http://electionlawblog.org/?p=26142> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://conlaw.jotwell.com/the-short-run-inelasticity-of-constitutional-law/>, at Jotwell.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26142&title=Vermeule%20on%20Pildes%20on%20%E2%80%9CThe%20Supreme%20Court%20as%20a%20Majoritarian%20Institution%E2%80%9D&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
?$B!H?(BIs It Time to Stop Voting on Tuesdays??$B!I?(B<http://electionlawblog.org/?p=26139>
Posted on December 6, 2011 7:53 am<http://electionlawblog.org/?p=26139> by Rick Hasen<http://electionlawblog.org/?author=3>

CBS News reports<http://www.cbsnews.com/8301-503544_162-57336755-503544/is-it-time-to-stop-voting-on-tuesdays/?tag=cbsnewsMainColumnArea>.
[cid:image001.png at 01CCB418.68D86A50]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26139&title=%E2%80%9CIs%20It%20Time%20to%20Stop%20Voting%20on%20Tuesdays%3F%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18> | Comments Off
--
Rick Hasen
Professor of Law and Political Science
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