[EL] Applewhite opinion on intent

[Morgan Kousser]

     What bothers me most about the intent discussion in Judge 
McGinley's opinion is the following language (p. 48):  "Petitioners did 
not submit any evidence that *all* of the individuals lacking compliant 
ID belong to specially protected classes, or are singled out as subjects 
of discrimination other than for lacking ID." (my italics)  This 
standard would defeat an equal protection claim in nearly every voting 
rights case, and it's certainly inconsistent with a great many Supreme 
Court opinions.  None of the "racial gerrymandering" cases from /Shaw v. 
Reno/, for example, require anything like complete segregation of 
individuals into a district.  The North Carolina 12th district in /Shaw/ 
was 54.7% black in its voting age population, not 100%.  Almost none of 
the post-/Brown/ school segregation cases relied on 100% segregation -- 
e.g., /Swann/, assuming that it's still good law.  Disproportionate -- 
not exclusive -- impact has nearly always been taken into account in 
assessing intentional discrimination.
     I'm not familiar with exactly what the intent case presented by the 
plaintiffs in /Applewhite/ amounted to, but I find the judge's 
discussion of judicial intent standards quite misleading.
Morgan

-- 
William R. Kenan, Jr. Prof. of History and Social Science, Caltech
surface mail:  228-77 Caltech, Pasadena, CA 91125-7700
phone 626-395-4080, fax 626-405-9841
home page:<http://www.hss.caltech.edu/~kousser/Kousser.html<http://www.hss.caltech.edu/%7Ekousser/Kousser.html>>
   . . . without the clarity that makes doubt productive, historians will never be able to fulfill their highest moral responsibility, to build a better world . . .
                       -- from "The New Postmodern Southern Political History"<http://www.hss.caltech.edu/%7Ekousser/book%20reviews/The%20New%20Postmodern%20Southern%20Political%20History.pdf>
   Perfection . . . in any institution is a dangerous myth; there is only the repeated correction of imperfections.  As long as there is discrimination, there will always be more work to do.
                        -- from "The Strange, Ironic Career of Section 5 of the Voting Rights Act<http://www.hss.caltech.edu/%7Ekousser/racial%20discrimination/Strange%20and%20Ironic%20Career,%20as%20printed.pdf>"

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