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

[Lori Minnite]

I agree with Michael that comparing black turnout rates in two states in 
one election using the CPS survey data, especially where the black 
percentage of the electorate in one of them is about 6 percent, is 
inadequate to an understanding of voting behavior of any relevance to 
the questions in Shelby.

There are other problems with the 2004 CPS data cited by the dissenters 
in the appeals case.  For example, are we to believe that the percentage 
of non-citizen voting-age blacks in Mississippi is zero?  Michael is 
right that the dissenting opinion states that the turnout rates graphed 
are for "citizen voting-age population," when in fact they are turnout 
rates of the voting-age population.  But this means the turnout ratios 
are only wrong in the case of Mississippi.  Are we to believe that there 
are no multi-racial black voting-age citizens in Massachusetts 
("multi-racial" counted in the language of the Census Bureau's 
publication as "black alone or in combination")? And why are 
non-Hispanic whites compared to all blacks rather than to non-Hispanic 
blacks?  (It is true that "Hispanics" probably make up a very small 
percentage of the black population in Massachusetts or Mississippi - the 
Census Bureau reports that in general, they comprise about 2 percent of 
the black category.)  This is what the data report.

Derek argues that it is unproductive to reject a point Chief Justice 
Roberts made at oral argument by using a point he didn't make.  This 
complaint, in effect, raises the question of whether Justice Roberts 
should be held accountable for data misinterpretations of the lower 
courts, and Michael suggests (he doesn't actually say this) he should, 
and I would agree.  Roberts is the top guy on the top court, he should 
know what he's talking about, or at least know that he doesn't know what 
he's talking about.  I would disagree, however, with those who argue 
that black voter turnout is the highest or best measure of the success 
of the Voting Rights Act.  It's not wrong to track progress this way, 
but when it comes to judging the constitutionality of Section 5 and 
4(b), it is important to keep in mind that the purpose of the Act was to 
eliminate racial discrimination in voting.  Turnout is a complex 
phenomenon political scientists actually don't understand so well (I 
hear my voting behavior colleagues wailing in disagreement with this 
statement). Turnout is sensitive to many other contextual factors and a 
much more robust analysis of it is worthy of the issues at stake in this 
case, if not the case itself.

Lori Minnite

On 3/3/13 1:19 AM, Michael McDonald wrote:
> 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
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election