[EL] ELB News and Commentary 6/30/12

Sat Jun 30 19:30:30 PDT 2012

Just a few developments today...

    Norm Ornstein on Minnesota Voter ID
    <http://electionlawblog.org/?p=36371>

Posted on June 30, 2012 7:20 pm <http://electionlawblog.org/?p=36371> by 
Justin Levitt <http://electionlawblog.org/?author=4>

As channeled by Lori Sturdevant 
<http://www.startribune.com/opinion/commentaries/160890015.html>, of the 
StarTribune.

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    SCOTUSblog: "One Mystery, One Order on Elections"
    <http://electionlawblog.org/?p=36367>

Posted on June 29, 2012 2:17 pm <http://electionlawblog.org/?p=36367> by 
Justin Levitt <http://electionlawblog.org/?author=4>

The mystery that Lyle mentions 
<http://www.scotusblog.com/2012/06/one-mystery-one-order-on-elections/> 
is the lingering West Virginia case 
<http://redistricting.lls.edu/cases.php#WV> on equal population 
requirements in redistricting.  And now, it will linger until fall...

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    "Googling the Future of the Voting Rights Act"
    <http://electionlawblog.org/?p=36364>

Posted on June 29, 2012 2:00 pm <http://electionlawblog.org/?p=36364> by 
Justin Levitt <http://electionlawblog.org/?author=4>

Below, a piece by Chris Elmendorf on statistical tests for racism, and 
their impact on the Voting Rights Act.  Originally published in JURIST 
(jurist.org <http://jurist.org/>), and available there at 
http://jurist.org/forum/2012/06/christopher-elmendorf-voting-future.php.

*  *  *

*Introduction*

Enacted in 1965 
<http://www.ourdocuments.gov/doc.php?flash=true&doc=100&page=transcript> 
and reauthorized several times since, the Voting Rights Act 
<http://www.law.cornell.edu/uscode/text/42/chapter-20/subchapter-I%E2%80%93A> 
(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 
<http://books.google.com/books?id=lx8NAQAAMAAJ> and jurists 
<http://jurist.org/paperchase/2009/06/supreme-court-upholds-voting-rights-act.php> 
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 
<http://www.stthomasu.ca/%7Enhiggins/Mitchell_Tetlock-2006.pdf> [PDF] or 
normative <http://www.hlpronline.com/vol1no2/bagenstos.pdf> [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 
<http://www.people.fas.harvard.edu/%7Esstephen/papers/RacialAnimusAndVotingSethStephensDavidowitz.pdf> 
[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 
<http://www.justice.gov/crt/about/vot/sec_5/about.php> 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 
<http://www.justice.gov/crt/about/vot/sec_2/about_sec2.php> 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."

Continue reading ? <http://electionlawblog.org/?p=36364#more-36364>

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-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

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