[EL] “In Voting Rights Arguments, Chief Justice Misconstrued Census Data”

[Derek Muller]

If I may, both Ms. Totenberg and Mr. Galvin are either intentionally
misrepresenting Chief Justice Roberts's (and the lower court's dissenting
opinion's) data, or they are unaware of an important distinction they've
elided over.

For Chief Justice Roberts (I think), the concern is the coverage formula.
And the coverage formula was reauthorized in 2006. And the last available
voter data was 2004. It's unsurprising, then, that the lower court's dissenting
opinion<http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-5256-1374370.pdf>,
at 11-14, look at the voting data from 2004. It specifically refers to this
Census data<http://www.census.gov/hhes/www/socdemo/voting/publications/p20/2004/tables.html>,
Table 4a.

Within that table, one can see that the turnout rate for African-Americans
in Mississippi in 2004 was 66.8%, MoE 5.2. In Massachusetts, it was 43.5%,
MoE 9.6. So assuming one wants to stretch the MoE, the low end of MS would
have been 61.6%, and the high end of MA would have been 53.1%. Ms.
Totenberg's calculation to "factor in the margins of error at their
extremes" would result in the same confidence that MA African-American
turnout was worse than MS.

As to the citizen voting-age population question, one can run a quick check
in the MA data to see that it would rise from 43.5% to 46.5%, while MS
would remain largely the same--and I'm fairly confident that even a change
in the MoE would not put MA in a statistical range in which it would be
better than MS.

Now, this is important data because *it is 2004 data*, the data that
Congress would have used (and, taking into account time and space, absent a
DeLorean, *could* have used) when it reauthorized the coverage formula.

Ms. Totenberg and Mr. Galvin use the 2010 Census data, which is not the
data that Congress would have had at its disposal in reauthorization.

Mr. Galvin "assumes" it is the 2010 data Chief Justice Roberts discusses,
and is not terribly careful if he says the "only thing we could find" was
the 2010 Census, or that "academics" at other institutions "could find no
record," when the record *is in the lower court dissent itself*.

Ms. Totenberg, to her credit, links to the lower court dissent--but then
ignores the actual 2004 Census data cited, instead choosing to cite the
2010 Census data, which was not used in the lower court dissent (and which,
I assume, was not cited by Chief Justice Roberts).

Now, granted, I understand that one could argue that the question is too
narrow, that citing solely the returns from a single election (i.e., 2004)
is not enough to sink the coverage formula, that the effectiveness and
turnout rates today are important in the Court's analysis, etc.

But, these stories glibly rejecting a point Chief Justice Roberts made at
oral argument by using a point he didn't make do not advance the
conversation in any meaningful way.

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058
SSRN Author Page: http://ssrn.com/author=464341

 “In Voting Rights Arguments, Chief Justice Misconstrued Census
Data”<http://electionlawblog.org/?p=47981>
> Posted on March 2, 2013 9:33 am <http://electionlawblog.org/?p=47981> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Nina Totenberg reports<http://www.npr.org/blogs/itsallpolitics/2013/03/01/173276943/in-voting-rights-arguments-chief-justice-may-have-misconstrued-census-data>for NPR.
>
> MORE<http://www.politico.com/blogs/under-the-radar/2013/03/massachusetts-official-slams-chief-justices-comments-158275.html>from Politico.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D47981&title=%E2%80%9CIn%20Voting%20Rights%20Arguments%2C%20Chief%20Justice%20Misconstrued%20Census%20Data%E2%80%9D&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>
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