Professor Smith,
While I agree that more research would be helpful in this area, I believe
that common sense and the facts on the ground make a compelling case that
the existing system is biased towards candidates who appeal to wealthy
donors.
In the 2004 congressional elections, the biggest fundraisers won 97% of the
time. 56.4% of candidates' individual funds came in checks of at least
$1000--from just 0.10% of the voting age population. (Data available at:
http://uspirg.org/uspirgnewsroom.asp?id2=21743)
This tells me that candidates who are able to appeal to the narrow segment
of the population that is able to afford a $1000 contribution have a
tremendous leg up. Of course, one can always try to squeeze into the 3% who
win while being out-raised--and be the exception that proves the rule.
Adam
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith, Brad
Sent: Wednesday, June 21, 2006 12:54 PM
To: Adam Lioz; election-law
Subject: RE: Electionlawblog news and commentary 6/21/06
It is not at all clear from empirical evidence that an unregulated system is
"biased" in the manner Mr. Lioz suggests; or that the changes he proposes
would change any bias that exist.
Also, at some point whether there is some "just" "pre-political" standard is
irrelevant if there is a constitutional standard to be followed.
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Adam Lioz
Sent: Wed 6/21/2006 11:15 AM
To: 'election-law'
Subject: RE: Electionlawblog news and commentary 6/21/06
Mr. Bauer writes about the VT case: "Sparing officeholders from political
pressure and competition merely lowers the cost to established interests
while raising the price of influence for the minority or novel views."
This nicely captures a main thrust of a key argument in defense of VT's law.
High-dollar fundraising and unlimited spending have produced a system with
notably little competition or political vulnerability for entrenched
interests. Empirical research has demonstrated that contribution limits do
not insulate incumbents and can help challengers both by narrowing
fundraising disparities in certain cases (Eom and Gross, available at
http://uspirg.org/uspirgnewsroom.asp?id2=24587) and actually reducing
margins of victory (Stratmann, available at
http://uspirg.org/uspirg.asp?id2=8090&id3=USPIRG&). Experience in
Albuquerque, New Mexico suggests that spending limits operate similarly.
Of course the thrust of Mr. Bauer's post suggests that structuring
democratic decision-making is an illegitimate rationale for regulating
money-in-politics. Although Mr. Bauer argues from a progressive point of
view, I would suggest that he falls prey to the Lochner fallacy. As Cass
Sunstein has pointed out, both Lochner and Buckley assume that there is a
pre-political (and hence just) set of relations and that regulation merely
interferes with this natural state. But, leaving campaigns unregulated is
anything but neutral-it benefits a particular type of candidate, namely one
who has access to wealthy donors either because of certain policy stances or
personal connections or (usually) both. As Burt Neuborne has written, this
system cannot fairly be described as protecting the autonomy of the
candidates (vs. FORCING them to spend time on studying the issues) because,
like an arms race, candidates are not free to choose whether to spend time
raising money or not-they are f!
orced to dial for dollars by the reality that approximately 95% of the
candidates who raise the most money win elections.
I certainly agree with one part of Bob's post-let's hope for this decision
soon so we can all stop guessing.
Sincerely,
Adam Lioz
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Wednesday, June 21, 2006 10:11 AM
To: election-law
Subject: Electionlawblog news and commentary 6/21/06
"The Arizona NVRA Decision"
Dan Tokaji has this post
<http://moritzlaw.osu.edu/blogs/tokaji/2006/06/arizona-nvra-decision.html>
on Equal Vote. A snippet: "My initial impression is that the court's
interpretation of the NVRA is incorrect. In particular, I don't think the
court's reasoning squarely confronts the strongest argument against what
Arizona seeks to do under Proposition 200."
"The Vermont Case and the Control of Public Policy"
Bob Bauer has this new post
<http://www.moresoftmoneyhardlaw.com/news.html?AID=744> .
"Ruling delights Loma Linda slow-growth group"
The San Bernadino County Sun offers this report
<http://www.sbsun.com/news/ci_3960934> , which begins: "LOMA LINDA - A
judge's reversal of her earlier decision has a conservation group hopeful
about the future of their initiative to limit development in the city's
South Hills. 'It's just what we wanted and asked for,' said Fredric D.
Woocher, an attorney representing Save Loma Linda in the case. 'It allows
the processing of the initiative to go forward. Hopefully, there will be an
election on it in November."" This case is a follow on to the Padilla v.
Lever litigation, which is being heard en banc in the Ninth Circuit
tomorrow.
Opinions on the Voting Rights Act Renewal
The Dallas Morning News offers this editorial
<http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/D
N-voting_21edi.ART.State.Edition1.2221293.html> , Renew the Voting Rights
Act, and this oped
<http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/D
N-butler_21edi.ART.State.Edition1.2142ec9.html> by Katharine Inglis Butler,
The Voting Rights Act is Unfair to Southern States and Texas. See also this
ACLU Press release
<http://www.civilrights.org/issues/voting/details.cfm?id=44510> , urging a
vote on a "clean" amendment, this editorial
<http://www.fortwayne.com/mld/newssentinel/news/editorial/14867809.htm>
urging renewal from Knight Ridder, and Bilingual Bailout
<http://article.nationalreview.com/?q=OWE1Y2E5NjY0NmI4YzE1NTdjMGE3OGM2N2U4Yz
k2ZjI=> by Peter Kirsanow.
This AP report <http://www.dfw.com/mld/dfw/news/breaking_news/14867447.htm>
says that both amendments <http://electionlawblog.org/archives/005977.html>
being proposed today on the floor of the House have little chance of
passage.
Florida's Manual Recount Rules for Touch Screen Voting Machines Don't
Violate the Constitution
So holds <http://www.ca11.uscourts.gov/opinions/ops/200416280.pdf> the 11th
Circuit. Link via Howard Bashman
<http://howappealing.law.com/062006.html#015501> .
"Bailouts and the Voting Rights Act: Observations About Rick Hasen's
Proposals"
Gerry Hebert offers these interesting observations
<http://www.clcblog.org/blog_item-34.html> on the proactive bailout
proposal.
UPDATE: Luke Peterson emails:
When it comes to the bailout provision of the VRA, it is hard to argue with
Gerry Hebert. I would like to add one point to Hebert's counter-arguments to
Hasen's proactive bailout proposal, and then add a significant addition to
Hebert's proposal.
First, it should be remembered that prior to the 1965 VRA, the DOJ faced the
impossible burden of investigating and litigating for injunctive action
against discriminatory devices, policies, and practices. The task proved too
great a burden for the DOJ's limited resources. Precisely for this reason
was Section 4 included in the Voting Rights Act. In 1982, Rep. Hyde's H.R.
3198 & 3473 introduced the notion of a bailout with set criteria that would
allow a covered jurisdiction to bailout at any time if it met the criteria;
thus providing an incentive to jurisdictions to seek full compliance with
the VRA. Hyde's proposal would also have eliminated the coverage mechanism
and preclearance requirements for all jurisdictions except those that would
be covered by the language minority provision. The House Judiciary committee
accepted (though in a dramatically altered form) Hyde's argument that an
attainable bailout should be provided in the Act. They roundly rejected,
however, the n!
otion that the coverage formula be virtually eliminated because it would be
a return to the "pre-1965 litigative approach" that proved impossible for
the DOJ.
I believe that the proactive bailout would place a similar burden on the DOJ
as was felt under the "pre-1965 litigative approach." I believe the task of
determining who may qualify for a bailout may prove as onerous as the
pre-1965 task of determining who was violating the previous voting rights
acts.
What is needed then is a proposal that provides better incentive to
jurisdictions to seek bailout, while not placing an excessive burden on the
DOJ.
I agree with Hebert's proposal, but would risk going one step further. I
propose that the preclearance provision be eliminated and replaced with a
quarterly report to the DOJ. Jurisdictions would not be required to preclear
changes, only to report them, while the DOJ would retain the right to
investigate and overturn voting changes which it determines to be
discriminatory. In this report covered jurisdictions would be required
detail all voting changes, the rationale behind them, and a detailed report
on the jurisdiction's progress toward the bailout criteria as currently
constituted.
There would be a number of advantages to such a system. First, while a
quarterly report on all voting changes would be at least as burdensome as
preclearance of all changes, because none of the changes must be precleared
before they can go into effect, this would spell a significant reduction in
the extent of federal intrusion into state autonomy, thus strengthening the
renewed sections' chances of surviving judicial scrutiny.
Secondly, because the quarterly reports will be nearly identical to the fact
finding report that jurisdictions seeking bailout must produce, there would
be a significant incentive to meet the bailout criteria so that they can
file a single bailout request rather than quarterly reports on an indefinite
basis.
Finally, as recent controversies have demonstrated, there is significant
fear that the DOJ has ceased to impartially consider preclearance requests.
If such truly is the case, or were to become the case, preclearance would be
an undesirable mechanism for enforcement of the VRA because it would then
become a shield to jurisdictions seeking to pass discriminatory voting
changes. A quarterly report would rather make proposed voting changes a
matter of record, force jurisdictions to explain their motives, and allow
for public pressure on the DOJ if it fails to investigate a change that
appears discriminatory.
I appreciate Hasen's proposal, above all for the spirit in which it is
proposed. I feel that a proactive bailout is an excellent idea, but would
place an excessive burden on the resources of the DOJ. I hope the House will
give Hasen's proposal the consideration it deserves and that this will be
the beginning of the debate the VRA renewal has needed and, thus far,
lacked.
Tokaji: Why Process Matters
The present version of the Voting Rights Act reauthorization bill (H.R. 9
<http://renewthevra.civilrights.org/view_from_hill/hr9.pdf> ) would make a
significant change to the legal standard under Section 5
<http://www.usdoj.gov/crt/voting/42usc/subch_ia.htm> . While this change is
important, I suggest in this post that the lively debate over VRA renewal
has overemphasized the standard for preclearance while underemphasizing the
importance of the preclearance process. That process, which isn't changed by
the proposed amendment, creates a considerable risk of partisan manipulation
and may not be adequate to protect minority rights from the most pressing
threats. Congress would thus be well-advised to take a hard look at the
preclearance process as well as the standard.
I start with the proposed amendment to change the standard for granting or
denying preclearance. The amendment purports to reverse the Supreme Court's
decision in Georgia v. Ashcroft, by providing that compliance with Section 5
should be judged by a proposed redistricting plan's impact on "the ability
of any citizens of the United States, on account of race or color ... to
elect their preferred candidates of choice."
There's been considerable debate among academics and advocates over whether
this change is a good idea. These competing views are nicely represented in
this recent exchange <http://www.moresoftmoneyhardlaw.com/news.html?AID=742>
between Bob Bauer and David Becker, as well as in several of the posts
appearing in this ongoing conversation
<http://electionlawblog.org/archives/cat_vra_renewal_guest_blogging.html> .
Briefly (and at the risk of oversimplification), the debate focuses on
whether it's acceptable to trade off "safe" minority districts, in which
racial minorities have a high likelihood of electing a candidate of choice,
for "influence" districts in which there are enough minorities to influence
the selection of a candidate but not enough to control that selection.
Georgia v. Ashcroft gives some flexibility for states to make such
trade-offs.
While I think that this debate over the Section 5 standard is consequential,
I'm not sure the stakes are quite as high as it might at first appear.
That's because the proposed amendment leaves much to be defined -- as did
Georgia v. Ashcroft.
It's important to bear in mind that the Justice Department and the courts
will ultimately determine how an amended Section 5 standard is interpreted.
And the phrases "ability ... to elect" and "preferred candidates of choice"
leave plenty of room for interpretation. Does the ability to elect mean
minorities' ability to control the outcome? By themselves? And does
"preferred candidate[] of choice" mean only the first-choice candidate? I
expect that the courts, including the Supreme Court, will ultimately
interpret these terms in a way that leaves considerable flexibility for
covered jurisdictions. If anything, the new Supreme Court -- with Justice
Alito and Chief Justice Roberts replacing Justice O'Connor and Chief Justice
Rehnquist -- is likely to have a stronger inclination to protect state
sovereignty than the old Court. A state-sovereignty orientation would
presumably lead the Court to read the new standard in such a way as to allow
state and local jurisdictions flexibili!
ty (assuming, of course, that it upholds Section 5's constitutionality).
Take, for example, a state in which two of ten congressional seats are
presently "safe" black districts, in which minority-preferred candidates
have a near-certain chance of being elected. Should the state be permitted
to get rid of one of those safe districts, to create two others in each of
which a minority-preferred candidate has a 50% of being elected? Or to
create three districts, in each of which a minority preferred candidate has
a 33% chance of being elected? I suspect that the Court will allow
trade-offs of this sort, if and when the matter comes before it.
As a practical matter, however, application of the new standard will
initially lie in the hands of the U.S. Department of Justice. It's therefore
not just the courts -- in fact, not mainly the courts -- that will be
interpreting and applying the new Section 5 standard, assuming that it
remains in the reauthorization bill and that its constitutionality is
upheld. That power will instead lie, in the first instance, with the Justice
Department.
This brings me to an aspect of Section 5 that has, in my opinion, received
too little attention: the process that's followed in preclearing proposed
electoral changes. Section 5 allows covered jurisdictions to obtain
preclearance through either the Justice Department or a federal court
(specifically, the U.S. District Court in Washington, D.C.). In the vast
majority of cases, covered states and counties choose to seek preclearance
from the Justice Department, which is much less costly and cumbersome than
going to court. And in the overwhelming majority of those cases, including
redistricting cases, preclearance is granted.
This is a process that leaves considerable room for partisan manipulation.
In the 1990s, ideological conservatives and some Democrats claimed that the
Justice Department was engaged in such manipulation, under the Bush I
Administration. Specifically, it was alleged that Justice wrongly denied
preclearance, in order to compel the creation of districts in which
minorities constituted a majority (or even a supermajority) of the
population. While there's considerable debate over the Justice Department's
motives, and over the extent to which the creation of such safe minority
districts helped Republicans, it's generally believed that they derived some
benefit.
The 2000s have again seen claims that the Justice Department is manipulating
the preclearance process, although those complaints now come from a
different quarter. This time, the claims focus on controversial decisions of
the Bush II Justice Department to preclear the Tom DeLay-backed Texas
redistricting plan and Georgia's photo ID bill. Internal memos leaked to the
Washington Post reveal that the decisions to preclear both changes was made
against the recommendations of career staff, who concluded that they would
harm minority voters.
In an important respect, these new concerns are more serious than those
raised in the 1990s. In the 1990s, the allegations of partisanship had to do
with "false negatives" -- that is, with the Justice Department's supposedly
wrongful decision to deny preclearance. But such false negatives are subject
to correction: a covered entity may seek judicial preclearance from the
district court in Washington (albeit at considerable expense) if it believes
that Justice has erred in denying preclearance. On the other hand, where the
Justice Department erroneously grants preclearance -- a "false positive" --
there's no judicial remedy. That's because the Justice Department's decision
to grant preclearance is final and not subject to judicial review.
One point on which those across the political spectrum ought to be able to
agree is that the present preclearance process is subject to partisan
manipulation. In a sense, this reflects an oddity that has always existed
under Section 5 -- specifically, that an enforcement agency (the Justice
Department) is charged with performing an adjudicative function. This
process worked pretty well for many years, mostly because Democratic and
Republican administrations were both committed to discharging their duties
faithfully, in a way that would promote equal participation and
representation by racial minorities. More recent developments, however,
raise serious doubts about whether Justice can be trusted to administer its
preclearance duties evenhandedly, without regard to partisan consequences.
These doubts are only exacerbated by the proliferation of partisan election
administration rules like Georgia's photo ID law, which threaten to impede
participation by racial minorities -- to !
the benefit of the party in control of both the state house and the White
House.
Although it's less clear what should be done to fix the problem of partisan
manipulation in the preclearance process, there are at least three changes
that Congress should consider. One is to make Justice Department decisions
to grant preclearance judicially reviewable. This would undoubtedly increase
the costs of preclearance, but would reduce the risk of partisan
manipulation of the process.
Another possibility, suggested by Professor Gerken
<https://ssl.tnr.com/p/docsub.mhtml?i=20050926&s=gerken092605> , is to
replace the current "top-down" model with a "bottom-up" approach. Under this
approach, civil rights groups instead of the Justice Department would have
the initial duty of monitoring changes and negotiating with covered entities
if they object. This approach could reduce preclearance costs, and could be
effective if civil rights groups are compensated for their efforts. But it
wouldn't eliminate the risks of partisan gamesmanship, since the Justice
Department would still have to serve as a "backstop" making preclearance
decisions when civil rights groups and covered jurisdictions can't arrive at
a negotiated agreement.
A third possibility is to take authority over some preclearance decisions
out of the Justice Department's hands, and place it in a bipartisan agency
-- one that, for example, consisted of two Democrats and two Republicans --
with a majority required in order to grant preclearance. In the event of a
deadlock, the dispute would ultimately wind up in court. This would probably
drive up the costs of preclearance, since more cases would likely be
resolved judicially rather than administratively. On the other hand, it
would guard against the considerable risk of partisan manipulation,
especially false positives, that exists under the current process.
As I've discussed at greater length in a forthcoming article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896730> , I think some
combination of these three options is probably optimal. Alternatively,
Congress might consider more limited measures of promoting transparency in
the Justice Department's decisionmaking, along the lines that Mark Posner
has suggested
<http://www.acslaw.org/files/Section%205%20decisionmaking%201-30-06.pdf> .
Whatever the approach ultimately selected, it's imperative that the
preclearance process and not just the standard receive attention.
--Dan Tokaji
Witnesses Announced for Latest Senate Judiciary Committee Hearing on VRA
Renewal
This <http://judiciary.senate.gov/hearing.cfm?id=1955> looks like a very
interesting hearing. So far, the Senate hearings have been very substantive
and interesting, and certainly presenting a greater diversity of views than
the House hearings.