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

[Lori Minnite]

Made a caffeine-deprived mistake in this statement: "But this means the 
turnout ratios are only wrong in the case of Mississippi."  I meant 
Massachusetts.

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
>
>
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