[EL] Gonzalez v. Arizona and Section 2

[JBoppjr at aol.com]

Great analysis.
 
I have argued over a dozen cases in the 9th Circuit and I have always  
wondered what weight each panel actually gives to prior precedent. A  similar 
analysis could be made in other areas of the law. I really wonder if the  
problem is not that they are struggling with this but actually that each panel  
is just coming to their own conclusion of the right result without much 
regard  to prior precedent.  Jim Bopp
 
 
In a message dated 4/20/2012 1:09:40 A.M. Eastern Daylight Time,  
cselmendorf at ucdavis.edu writes:

 
 
 
On Wednesday, Rick commented on his blog that the en banc  decision in 
Gonzalez v. Arizona is  very important because, among other things, “it contains 
a major statement of  what plaintiffs would need to show if they want to 
prove that a voter  identification law violates section 2 of the Voting Rights 
Act.”  What  Rick did not point out is that the Gonzalez Court’s “major 
statement” is  in serious tension with the last “major statement” from the 
same court on what  plaintiffs must prove in Section 2 cases.   

In Farrakhan v.  Gregoire, the en banc Ninth Circuit held that plaintiffs 
challenging a  felon disenfranchisement law under Section 2 must prove that “
the [state’s]  criminal justice system is infected by intentional 
discrimination or that the  felon disenfranchisement law was enacted with such intent.”
  As Justin Levitt commented at the  time, Farrakhan seemed to raise the  
bar for proving intentional discrimination above the already high mark set by 
 the U.S. Supreme Court in Arlington  Heights (an equal protection case).  
Yet Gonzalez  indicates that plaintiffs challenging a voter ID requirement 
under Section  2 need only establish a “statistical disparity between 
minorities and whites”  that is “caused” by the ID requirement.   The opinion 
recites some platitudes about the Senate Report factors,  but it does not say 
that plaintiffs must trace the disparate impact of a voter  ID requirement 
(assuming it be proved) to current or past intentional  discrimination by st
ate actors, let alone that plaintiffs must prove  intentional discrimination 
with a highdegree of certainty.  Oddly, Judge Kozinski’s concurring  opinion 
does not even remark on the majority’s treatment of Section 2, even  though 
Kozinski was a leading voice for requiring proof of intentional  
discrimination in Farrakhan.    
The zigzag from Farrakhan to Gonzalez is just the latest in the  9th Circuit
’s struggle to make sense of the place of intentional or  subjective 
discrimination in Section 2 litigation.  In a 1997 case, Smith v. Salt River 
Project, the Circuit  rejected a Section 2 challenge to landownership 
qualifications for voting in  certain special district elections because plaintiffs 
failed to show that the  qualifications were established for discriminatory 
reasons, or gave electoral  effect to intentional discrimination by other 
public or private actors.  By contrast, in U.S. v. Blaine County (2004), the  
Ninth Circuit held that at-large electoral arrangements that prevent a  
minority community from electing its candidates of choice (given  race-correlated 
voting patterns) violate Section 2 irrespective of whether the  district map 
was adopted for discriminatory reasons, and whether the  race-correlated 
voting patterns owe to racial prejudices.   
Intentionally or inadvertently, Gonzalez moves the ball back towards  
Blaine County.  But because Gonzalez does  mention Salt River and the Senate  
Report factors in passing, it leaves enough wiggle room for a future panel to  
change course yet again.   

(For my own efforts to steer a middle course on the role of  subjective 
discrimination under Section 2, see _Making Sense  of Section 2: Of Biased 
Votes, Unconstitutional Elections, and Common Law  Statutes_ 
(http://www.pennumbra.com/issues/pdfs/160-2/Elmendorf.pdf) , 160 U. Pa. L. Rev. 377 (2012).)  

Best, 

Chris



Christopher S.  Elmendorf
Professor of  Law
UC Davis School of  Law
400 Mrak Hall  Drive
Davis, CA  95616 
530.752.5756





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