From: "J. Morgan Kousser" <kousser@HSS.CALTECH.EDU>
Date: 6/2/2006, 3:42 PM
To: election-law@majordomo.lls.edu

Rick,
  Note that I said NINETEENTH century racial discrimination in schools, a time when courts weren't particularly sympathetic to minority rights.
  Note also that even though LDF's resources are finite, they may be expandable, and the publicity that cases get may attract more resources to the particular struggle, to LDF or other groups, or they might have an important propaganda function, drawing attention to the issue and converting people.  E.g., the Washington superior court's decision throwing out post-incarceration disfranchisement because the system is so convoluted and complex may help pass legislation, now pending, simplifying or even eliminating post-incarceration disfranchisement.  The local court decision may possibly have some influence on the pending federal court decision in Farrakhan.
  Having studied the disfranchisement of blacks and poor whites in the late 19th century South, which I found was importantly the product of partisan, as well as racial interest, I'm much less sanguine than you about the likelihood that state legislatures will uphold core voting rights.  Obviously, I'm skeptical of courts, as well, but I see no clear theoretical or empirical reason to think that one, rather than the other, is the more appropriate body for making decisions on such matters.
  I also worry about the precedential effect of losing in courts, as we've been doing.  But I think the problems are so grave -- about a quarter of black males disfranchised -- and that voting rights law is so unsettled that we shouldn't bar that path.
Morgan


Prof. of History and Social Science, Caltech
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