[EL] racial stereotyping & coverage formulas

Fri Jul 19 12:14:03 PDT 2013

I appreciate Chris's response. I'm not sure the question is whether there is *anything better*, as opposed to whether the stereotyping measure is *good enough*. That in turn depends to some degree on how much tolerance we may have, based on various reasons, for unequal treatment of states.

One of those reasons is a background constitutional principle that states are to be treated equally. See, e.g., Akhil Amar, America's Constitution: A Biography 274-75, 294. And then there is NAMUDNO:

    "The Act also differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty.' United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725-726 (1869). Distinctions can be justified in some cases. 'The doctrine of the equality of States ... does not bar ... remedies for local evils which have subsequently appeared.' Katzenbach, supra, at 328-329 (emphasis added) [emphasis on the word 'local,' which probably won't come through in this email]. But a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."

The Chief Justice's opinion in NAMUDNO was joined by seven other members of the Court, including Justices Ginsburg and Breyer. Only Justice Thomas, didn't join. So six members of the current Court agreed that there is a doctrine and historic tradition of equality of states, which is a fundamental principle. It seems likely that a seventh (Justice Thomas) would agree if he thought it necessary to reach the issue.

Justice Ginsburg's dissent in Shelby County argues that equal footing only applies to terms of admission of states, treating the statement in the NAMUDNO opinion that she joined as mere dictum. She considers the Shelby County majority's approach to be inconsistent with its own interpretation of Katzenbach, but the language she cites from the Shelby County majority's opinion only says that Katzenbach held that the equal footing doctrine wasn't a "bar" to unequal treatment after admission. The majority agrees that it is not a "bar;" on a sufficient showing (such as that made in 1965), states could be treated unequally.

The only citation given by the Court in Katzenbach for the principle that equal footing does not apply after admission of a state is to Coyle v. Smith (1911) (and generally to cases cited in Coyle):

"The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared. See Coyle v. Smith, 221 U.S. 559 , and cases cited therein."

As I read Coyle (admittedly very quickly, and the Court's analysis is fairly complex), the Court in Coyle held that a condition that a state had to satisfy *as of the time of admission* in order to be admitted was constitutional even if applicable only the state that was being admitted, but that such a condition that would operate after admission of the state was not constitutional. The latter proposition was the consequence of the requirement that the state be admitted on an equal footing, so that limitations on the state's equal power post-admission could only be based on post-admission *agreement by the state*. Thus Oklahoma could move its capital despite the provision in the act that admitted Oklahoma that it could not. The Court  in effect held that not even a provision in an act admitting a state could eliminate the state's post-admission right to equal treatment.

Here is the end of the majority opinion in Coyle:

"[W]e may add that the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution."

Earlier in the opinion, the Court in Coyle seemed to say there was no question that, but for the condition on admission, Oklahoma could move its capital. The question then was not whether Oklahoma was entitled, post-admission, to be treated on an equal footing, but rather whether that right could be taken away by the condition placed on admission. This is the opposite of the proposition for which the Court in Katzenbach cited Coyle. Here is what the Court in Coyle said:

"The power to locate its own seat of government and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. That one of the original thirteen States could now be shorn of such powers by an act of Congress would not be for a moment entertained. The question then comes to this: can a State be placed upon a plane of inequality with its sister States in the Union if the Congress chooses to impose conditions which so operate at the time of its admission? The argument is, that, while Congress may not deprive a State of any power which it possesses, it may, as a condition to the admission of a new State, constitutionally restrict its authority to the extent, at least, of suspending its powers for a definite time in respect to the location of its seat of government."

The Court answered that question with a "no," thus holding that a condition on admission could not, post-admission, deprive a state of equality, and thus neither a condition on admission nor a post-admission act of Congress could do so.

Perhaps someone can explain how I am misreading Coyle, if in fact I am. If I'm not misreading it, then Katzenbach had to be based on something other than the inapplicability post-admission of the equal footing doctrine; that is, unless the Court in Katzenbach overruled sub silentio the very case on which it relied, which is much like the accusation Justice Ginsburg makes against the Shelby County majority.

That would mean that Katzenbach was based (if we are to harmonize its holding with Coyle) on Congress's power under the 15th Am. to override the otherwise applicable right of each state to be treated, post-admission, on an equal footing.

I suppose it is possible to read Coyle as based not just on the equal footing doctrine but also on an older understanding of states' rights. Nevertheless, Coyle does not seem to stand for the principle for which the Court in Katzenbach cited it, and the reasoning in Coyle is to the contrary.

I may be reinventing the wheel. Perhaps someone has dealt with this issue of the reliance of Katzenbach on Coyle before. If so, perhaps someone could provide a citation.

Changing gears somewhat:

When I asked for a limiting principle with regard to the proposed national popular vote interstate compact - whether it could be distinguished from a compact under which states holding a majority of electoral votes could bind themselves to choose electors as a bloc for the winner of the popular vote within *only* those states - the answer given me, by one of our most distinguished constitutional scholars, was that the background principle of state equality would prohibit such a compact. Thus, according to that scholar, the NPVIC could be constitutional, because there still could be some limit on how states could band together to choose electors.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Christopher S. Elmendorf [mailto:cselmendorf at ucdavis.edu]
Sent: Friday, July 19, 2013 10:01 AM
To: Scarberry, Mark; rhasen at law.uci.edu; law-election at uci.edu
Subject: racial stereotyping & coverage formulas

In response to Mark's question below:

The measure of racial stereotyping that Doug and I rely on is probably distorted to some extent by social desirability biases (but it is derived from on-line surveys, which are less susceptible to social desirability bias than in-person surveys).  It does predict political preferences, e.g., whether the respondent voted for Obama or a white candidate in the 2008 Democratic primary; whether the respondent voted for Kerry in 2004 but not for Obama in 2008; whether the respondent voted for McCain over Obama in the 2008 general election, controlling for ideology, partisanship, and region.  The correlation with political preferences is especially large among people who are in the top 10% by anti-black stereotyping; it is absent among people who subscribe to positive rather than negative views of blacks.

The question for me is not whether this measure is perfect-it clearly is not-but whether there is anything better.

Doug and I agree that it would make sense for a coverage formula to take account of racially polarized voting and minority population size, as well as racial stereotyping.  But as we show in the paper, all three criteria lead to very similar conclusions about which states should be covered, at least with respect to African Americans.  And the states that should be covered are basically the states that were covered under the "outdated" formula that Shelby County invalidated.  (See figures 6 and 7 on pages 40-41.)

Best,

Chris

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

From: <Scarberry>, Mark Scarberry <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>
Reply-To: Mark Scarberry <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>
Date: Friday, July 19, 2013 9:06 AM
To: rick hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] ELB News and Commentary 7/19/13

On the racial stereotyping study approach to setting preclearance areas: if I remember correctly, my reaction to a study I saw quite a while ago was that it was likely measuring attitudes that might have little to do with racial discrimination or animus. How confident should we be that the studies are sound? And are attitudes of voters good proxies for likely violations the14th am, when not combined with other factors? Gingles, for example, uses a multi-factor analysis for a somewhat analogous issue, right?

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone

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