[EL] =?us-ascii?Q?RE:_=5BEL=5D =22In_Voting_Rights_Arguments=2C_Chief_Justice_?=Misconstrued Census Data"

[Michael McDonald]

It is interesting how the text of the dissenting opinion (at 11) states that
"Each chart takes the number of non-Hispanic whites who registered or turned
out as a proportion of the total citizen voting-age population ("CVAP") and
compares that ratio to the same ratio for the black population." Yet, the
tables graph turnout for the voting-age population. 

This bit of sloppiness aside, I concur with the Census Bureau officials that
we should not draw any conclusion about relative differences in turnout
rates among state small sub-populations. While one can compute margin of
errors for the sample of Massachusetts African-Americans, a casual look at
these data reveal other problems that are likely attributed to the small
sample sizes that we are dealing with. For example, in 2004, the difference
between MA's point estimate of the VAP African-American turnout rate and
CVAP turnout rate is a mere  3.0 percentage points. Yet, in 2008, it jumped
to 14.9 percentage points. And in 2000, it was 10.9 percentage points.
Indeed, the difference between MA's VAP and CVAP African-American turnout
rates in 2002 is 10.1 percentage points, in 2006 it is 12.8, and in 2010 it
is 10.2 percentage points. I don't think we would believe that the MA's
non-citizen African-American population would dramatically decline from 2002
to 2004, only to rebound in 2006. (Another obvious problem: in 2008, 100% of
MA registered African-Americans voted.)

There is nothing disingenuous about looking for confirming evidence from
other CPS surveys. If other elections had looked like 2004, then we would
have more confidence in the 2004 data. Since the other elections do not
confirm the 2004 data, the most reasonable explanation is the 2004 survey is
an outlier. The margin of error only refers to the range where the true
value lies within 19 out of 20 times; with enough surveys, one survey will
randomly have a bad sample. Massachusetts officials are rightfully outraged
that Justice Roberts brought them into the national discussion, using
demonstrably bad data that could have been revealed by a casual check of
other CPS surveys. Btw, to her credit, Tottenburg is careful to note, "But a
close look at census statistics indicates the chief justice was wrong, or at
least that he did not look at the totality of the numbers."

The lower court opinion in question is dated May 18, 2012. The court did not
need to travel in time to gauge the reliability of the 2004 data with
subsequent CPS surveys, even if the dissenting judge (Williams) thought 2004
was most probative. (As an aside, Congress has never based the coverage
formula on survey data.) Perhaps the CPS surveys were brought up as evidence
in the district court level. My casual reading through the opinion suggests
that it was not, since other data are sourced to experts while the source
given for these data is the Census Bureau website. If I am correct, then I
would say this is a good example of why we need experts in the courtroom.
Judges tread on shaky ground when they attempt to bring in evidence of their
own to state matters of fact in areas outside of their training. We now have
to, after the fact of its incorporation in a dissenting opinion, debate the
validity of the data, when that should have been discussed at trial. Data
that furthermore underpins an important question asked by the Chief Justice
of the United States Supreme Court. I believe that Roberts' general question
about the success of the VRA to improve African-American voting and
registration rates -- one that could have been asked without the distracting
singling out of MA -- is one that truly deserves to be asked and answered.
It is unfortunate that Roberts was provocative when a more direct question
would have sufficed.

Finally, I want to reiterate a CPS issue that I raised previously with
regards to Obama's newly appointed commission. Justice Roberts' use of the
CPS underscores the need for a review of the Census Bureau methodology, and
this is something that can be changed by executive order if it really needed
to rise to that level. One of the issues that I have raised previously is
that the Census Bureau counts individuals who were *never* administered the
CPS voting and registration supplement as being someone who did not vote.
This is simply wrong.

See here:
http://www.huffingtonpost.com/michael-p-mcdonald/is-minority-voter-registr_b
_1497813.html 

This matters to this particular discussion because 21.5% (weighted) of MA
African-Americans in 2004 were not administered the CPS voting and
registration supplement, while only 10.2% of MS African-Americans were not
administered the survey. (In general, as I pointed out in the blog post, for
some reason, minorities are less likely to have been administered the CPS
voting and registration supplement survey.) This does not fully explain the
disparity between MA and MS's 2004 African-American turnout rates, but it
does explain a good portion of it: the corrected 2004 African-American
turnout rates are 62.0% for MA and 76.9% for MS, compared with an
uncorrected CVAP turnout rate of 46.5% and 66.8%, respectively.

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel
Bagenstos
Sent: Saturday, March 02, 2013 2:05 PM
To: Derek Muller
Cc: law-election at UCI.edu
Subject: Re: [EL] "In Voting Rights Arguments, Chief Justice Misconstrued
Census Data"

So the best way to characterize Totenberg and Galvin is that they're
responding to a debater's point with a debater's point? 
On Mar 2, 2013 12:58 PM, "Derek Muller" <derek.muller at gmail.com> wrote:
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, at 11-14, look at the voting data from 2004. It
specifically refers to this Census data, 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" 
Posted on March 2, 2013 9:33 am by Rick Hasen 
Nina Totenberg reports for NPR.
MORE from Politico.

Posted in Supreme Court, Voting Rights Act | Comments Off 


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