[EL] Browne-Dianis/Pildes comments

Fri Aug 23 13:08:09 PDT 2013

I agree that, as a general matter, marginal changes in turnout levels do not directly measure the extent to which significant barriers to participation are present (though note that Section 4/5 of the VRA used turnout levels as one of its two proxies for concerns about unujustified barriers to participation).  There can be other confounding factors.  My point was limited to the 2012 election.  At some point, turnout is so high it requires a lot more convincing evidence that there were unusually high barriers to participation.  Long lines were a problem in some places (itself partly a product of high turnout); my analysis of the causes for that is here. <http://www.theatlantic.com/politics/archive/2012/11/the-real-reasons-you-waited-hours-in-line-to-vote/265446/> But since Ms. Dianis did not, in fact, say, the 2012 election was the hardest one in decades for African Americans to vote and have their votes counted in, the discussion about 2012 that I initiated is moot.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lorraine Minnite
Sent: Friday, August 23, 2013 9:33 AM
To: Chambers, Hank
Cc: law-election at UCI.edu
Subject: [EL] Browne-Dianis/Pildes comments

With Ms. Browne-Dianis comments clarified, the issue alluded to by Prof. Chambers remains.  I agree with Prof. Chambers; turnout and voter suppression in the form of rule changes that constrict rather than expand opportunities to exercise voting rights are not connected in simple ways.  As Prof. Chambers suggests, it is entirely possible for black turnout to expand in light of voting rule changes that demonstrably make it more difficult for some black voters to vote.  Whether turnout goes up or down in any specific election is not the best measure of the impact of a voting rule change such as adopting a more restrictive photo ID requirement.

In my view, it would be useful to policymakers and to the public's understanding of the issues to require impact statements for voting rule changes the way we do in other policy arenas, specifically, environmental policy.  These assessments could include analyses of the cost of the rule change, following pioneering work by the Brennan Center on the cost of implementing voter ID rules; the expected impact on various voter groups, especially those whose turnout rates are lower than average (i.e., low income voters, youth, the infirm elderly, the disabled, new citizens, first-time voters, etc.); the risk of voter fraud; and importantly, the impact on election administrators and the difficulty of administering an ever-changing set of detailed rules of differential application.

Lori Minnite

Sent from my iPad

On Aug 23, 2013, at 11:14 AM, "Chambers, Hank" <hchamber at richmond.edu<mailto:hchamber at richmond.edu>> wrote:
Professor Pildes may or may not be correct about the accuracy of the statement attributed to Ms. Dianis.  However, I do not see how turnout numbers necessarily disprove that 2012 was a tougher election for African Americans to have their votes counted than in any other recent election.  It is possible that even though it may have been harder for African Americans to vote, cast a ballot and have their votes counted than in the recent past, African Americans were motivated to such an extent and African Americans persevered to such an extent that African American turnout was higher than white turnout-Hank
Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hchamber at richmond.edu<mailto:hchamber at richmond.edu>

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Pildes, Rick [pildesr at exchange.law.nyu.edu<mailto:pildesr at exchange.law.nyu.edu>]
Sent: Thursday, August 22, 2013 4:15 PM
To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] (no subject)
I am not going to post this, but to help try to keep things in perspective, I want to point out on the list that it’s not just the headline in the Daily Beast story that lacks rational perspective.  That story also quotes Judith Browne Dianis, co-director of the Advancement Project<http://www.advancementproject.org/>, as saying that it was “harder for African-Americans to ‘vote, cast a ballot, and have a vote counted’ in 2012 than in any other recent election.

Of course, African-American turnout in 2012 was the highest in modern American history.  Indeed, for the first time, the African-American turnout rate exceeded the white turnout rate.  http://www.theatlanticwire.com/politics/2013/05/black-turnout-2012-state-by-state-maps/65053/.  And keep in mind that early voting, for example, didn’t even exist in places like Ohio or Florida before 2004.

I’m not going to post because it is true that there were more laws enacted in the two years or so leading up to the election than in previous recent elections that could have made access more difficult for legitimate voters.  Most of these laws were blocked or postponed; we do not know how much of an effect on turnout (of black or white) voters there would have been had all these laws been in effect (though newer voter ID laws were in effect in Georgia and Indiana).  But it could not be more wrong to say that it was “harder for African-Americans to ‘vote, cast a ballot, and have a vote counted’ in 2012 than in any other recent election.  Yes, we need to fix problems of long lines and many other unjustified obstacles.  But statements like this one do a disservice to public discussion and are likely to get recycled if not flagged.

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, August 22, 2013 3:46 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] more news 8/22/13

Will DOJ Seek Preliminary Injunctive Relief in Texas Voter ID Case? Will It Get It?<http://electionlawblog.org/?p=54720>
Posted on August 22, 2013 12:44 pm<http://electionlawblog.org/?p=54720> by Rick Hasen<http://electionlawblog.org/?author=3>

Remember this exchange from the oral argument <http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf> in Shelby County?

JUSTICE KENNEDY: Well, I — I do think the evidence is very clear that Section — that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965. No doubt about that.
GENERAL VERRILLI: And I think it remains true -

JUSTICE KENNEDY: But with — with a modern understanding of — of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it’s not clear — and — and with the fact that the government itself can commence these suits, it’s not clear to me that there’s that much difference in a Section 2 suit now and preclearance. I may be wrong about that. I don’t have statistics for it. That’s why we’re asking.
GENERAL VERRILLI: I — I don’t — I don’t really think that that conclusion follows. I think these under the — there are thousands and thousands of these under-the-radar screen changes, the polling places and registration techniques, et cetera. And in most of those I submit, Your Honor, the — the cost-benefit ratio is going to be, given the cost of this litigation, which one of the — one of the reasons Katzenbach said Section 5 was necessary, is going to tilt strongly against bringing these suits.Even with respect to the big ticket items, the big redistrictings, I think the logic Katzenbach holds in that those suits are extremely expensive and they typically result in after-the-fact litigation.
Now, it is true, and the Petitioners raised the notion that there could be a preliminary injunction, but I really think the Petitioner’s argument that Section 2 is a satisfactory and complete substitute for Section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what Section 5 does. They haven’t made any effort to do that. And while I don’t have statistics for you, I can tell you that the Civil Rights Division tells me that it’s their understanding that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued.

So I don’t think that there’s a basis, certainly given the weighty question before this Court of the constitutionality of this law, to the extent the argument is that Section 2 is a valid substitute for Section 5, I just don’t think that the — that the Petitioners have given the Court anything that allows the Court to reach that conclusion and of course…

<image001.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54720&title=Will%20DOJ%20Seek%20Preliminary%20Injunctive%20Relief%20in%20Texas%20Voter%20ID%20Case%3F%20Will%20It%20Get%20It%3F&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, Supreme Court<http://electionlawblog.org/?cat=29>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Voting Wars Redux in Texas”<http://electionlawblog.org/?p=54717>
Posted on August 22, 2013 12:24 pm<http://electionlawblog.org/?p=54717> by Rick Hasen<http://electionlawblog.org/?author=3>

CJR<http://www.cjr.org/united_states_project/voting_wars_redux_in_texas.php?page=all> on resources for journalists.
<image001.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54717&title=%E2%80%9CVoting%20Wars%20Redux%20in%20Texas%E2%80%9D&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off
Question of the Day: Is Attack on VRA Section 2 Next?<http://electionlawblog.org/?p=54714>
Posted on August 22, 2013 12:09 pm<http://electionlawblog.org/?p=54714> by Rick Hasen<http://electionlawblog.org/?author=3>

“Wonder if Texas will argue if sec[tion] 2 is unconstitutional.”

–Franita Tolson<https://twitter.com/ProfTolson/status/370622292617068544>

Indeed, this has been one of my main worries <http://electionlawblog.org/?p=53094> about the next shoe <http://electionlawblog.org/?p=53131> to drop<http://tv.msnbc.com/2013/07/19/conservatives-prepare-to-finish-off-the-voting-rights-act/>.
<image001.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54714&title=Question%20of%20the%20Day%3A%20Is%20Attack%20on%20VRA%20Section%202%20Next%3F&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Ari Berman on DOJ’s Texas Moves<http://electionlawblog.org/?p=54711>
Posted on August 22, 2013 11:48 am<http://electionlawblog.org/?p=54711> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.thenation.com/blog/175873/doj-texas-voter-suppression-will-not-stand#axzz2cj1ggB4c>, at The Nation.
<image001.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54711&title=Ari%20Berman%20on%20DOJ%E2%80%99s%20Texas%20Moves&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Was 2012 The Worst Year Ever for Voting Rights?”<http://electionlawblog.org/?p=54707>
Posted on August 22, 2013 10:56 am<http://electionlawblog.org/?p=54707> by Rick Hasen<http://electionlawblog.org/?author=3>

The Daily Beast reports.<http://www.thedailybeast.com/articles/2013/08/22/was-2012-the-worst-year-ever-for-voting-rights.html>

Very good piece but terrible headline. Think of any year before 1965′s enactment of the Voting Rights Act, for example.
<image001.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54707&title=%E2%80%9CWas%202012%20The%20Worst%20Year%20Ever%20for%20Voting%20Rights%3F%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off
The Present Day Ramifications of the Supreme Court’s 1964 Decision on Designing Democratic Institutions in Colorado?<http://electionlawblog.org/?p=54702>
Posted on August 22, 2013 10:55 am<http://electionlawblog.org/?p=54702> by Richard Pildes<http://electionlawblog.org/?author=7>

For those of you who teach (as I do) the amazing one-vote, one-person case of Lucas v. The Forty-Fourth General Assembly of the State of Colorado, or for others wishing to understand urban v. rural conflicts in the design of democratic institutions, this Washington Post story<http://www.washingtonpost.com/blogs/wonkblog/wp/2013/08/21/this-map-is-how-the-united-states-would-look-if-life-were-fair/?tid=pm_pop> today is worth a look — with a nice graphic image.

<image001.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54702&title=The%20Present%20Day%20Ramifications%20of%20the%20Supreme%20Court%E2%80%99s%201964%20Decision%20on%20Designing%20Democratic%20Institutions%20in%20Colorado%3F&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

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949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

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http://electionlawblog.org
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