December 6, 2021

How an Outdated Environmental Law is Sabotaging California's New Housing Rules

[Cross-posted from the San Francisco Chronicle]

By Christopher S. Elmendorf and Tim Duncheon

In October, outrage erupted when San Francisco’s Board of Supervisors voted down a proposal to build nearly 500 new homes — many affordable — on a downtown site at 469 Stevenson St. now being used for valet parking.

Of course, these same supervisors reject housing developments all the time. And yet this denial was especially brazen.

It came short on the heels of a major Court of Appeal decision upholding the state’s powerful Housing Accountability Act, which requires cities to approve housing projects if a reasonable person could deem the project compliant with applicable standards. Yet the supervisors who voted “no” didn’t even try to argue that the project was noncompliant.

Instead, they attempted to evade the HAA by using a different law, the California Environmental Quality Act.

Technically, the board voted to reverse the city planning commission’s certification of the project’s environmental impact report—a report that took over two years to complete and certify in the first place. Board members demanded additional environmental studies, even as they openly admitted that their objections to the project — too big, not enough affordable units, risk of gentrification — had nothing to do with the environment. Oakland and Sonoma have also used similar CEQA maneuvers to hold up housing projects, too, albeit to much less fanfare.

The immediate question this raises is whether cities will be allowed to keep using CEQA to launder denials of housing that state law protects. Can bad-faith cities keep getting away with demanding round after round of ever more elaborate environmental studies, until developers cry uncle and walk away?

But there’s also a deeper question. Why is a housing project that a city can’t legally deny — because it is protected by state law — required to undergo an exhaustive environmental study in the first place?

CEQA requires local governments to carefully consider environmental concerns whenever they make discretionary decisions. For example, it requires cities to do environmental studies when they change their zoning ordinances.

San Francisco’s city charter subjects all development projects to “discretionary review,” making them all potentially subject to CEQA, even if they conform to zoning. But that doesn’t mean every single project in San Francisco is put through the wringer of a multiyear environmental impact report. A report is required only if the development may have a “significant impact” on the environment.

But significant relative to what?

The developer of the Stevenson Street project had to complete an environmental impact report because San Francisco’s Planning Department concluded (after its own yearlong, 342-page study) that the building might have a significant local environmental impact in the form of shadows, wind, or (during construction) noise and air pollution, relative to leaving the site as a parking lot.

This is nuts.

After all, this was a proposal to put dense housing a block from a BART station, in a designated “priority development area” under the region’s climate plan. Few projects could be more environmentally friendly.

Also, critically, California law doesn’t allow the city to retain the site as a parking lot once a developer applies to build housing there.

There was no reason to require an environmental impact report for the Stevenson Street project unless it would have a significant larger impact than any other project of the size that state law authorizes and encourages developers to build on the site. If the impact of the 500-home building the developer proposed would be about the same as the impact of any other 500-home building on the site, then requiring the developer to prepare an environmental impact report was a colossal waste of time (two years and counting) and money. In the midst of a worsening housing crisis.

It doesn’t have to be like this.

Under the federal statute on which CEQA was modeled, environmental review is limited to effects that are proximately caused by a government agency’s discretionary decisions. Because California law prohibits San Francisco from downsizing the Stevenson Street project, the project’s size isn’t caused by the city’s permitting discretion. And so the Stevenson Street project wouldn’t require environmental analysis.

Or consider New York, where if a developer proposes a 10-story development on a site where the zoning currently allows a five-story building, the effect of the larger project is analyzed relative to a smaller one the zoning allows.

The bottom line is that there’s an urgent need for fresh thinking about how to fit CEQA and the HAA together in a sensible way. Ideally, California’s Legislature would do it, with clarifying amendments to one or both laws. But achieving meaningful CEQA reform through the Legislature has proven to be a Sisyphean task due to the powerful interest groups — first and foremost the building trades unions — that have mastered the art of using CEQA litigation to hold developers hostage until the unions secure a side-deal, thereby making housing harder to build — and more expensive when it is built.

Action on this issue will require a full-court press by other actors: the courts, the Attorney General, and most importantly Gov. Newsom, who is riding high after crushing the recall attempt.

The governor has tools at his disposal to get the job done. He oversees the Department of Housing and Community Development, which is tasked with enforcing the HAA and other state housing laws. He also appoints the directors of the Natural Resources Agency and the Office of Planning and Research, who in turn issue the official CEQA Guidelines, which spell out the nitty-gritty of environmental review.

The governor’s housing department has launched an investigation of the 469 Stevenson St. debacle. A few days before Thanksgiving, the department delivered a strongly worded letter to San Francisco. This letter suggested that bad faith demands for superfluous environmental studies may violate the HAA. This interpretation — which is plausible but not open-and-shut — would greatly curtail CEQA-laundered project denials. And it’s an interpretation that courts are more likely to accept now that the executive branch of state government endorses it.

The letter is great, but it’s just a start.

CEQA guidelines must be revisited, too. They don’t even mention the HAA. Worse, they arguably call for full environmental impact reports even when a city has limited discretion over a project.

Stevenson St. is a case in point.

This is no way to run the show in a world where, as the HAA puts it, the lack of abundant infill housing is “undermining [California’s] environmental and climate objectives” by causing “urban sprawl, excessive commuting, and air quality deterioration.”

The housing shortage gets worse with each passing month that is wasted on irrelevant environmental review.

One of Newsom’s first official acts after trouncing the recall was to sign a spate of new housing bills. Next in line for the governor’s signature should be an executive order directing a revision of the CEQA Guidelines in light of the HAA. There’s no time to waste.

Christopher S. Elmendorf is a professor of law at UC Davis. Tim Duncheon is a lawyer based in San Francisco. Portions of this commentary were published on the State and Local Government Law Blog.

June 14, 2021

Officials Should Force San Diego to Follow California Housing Law. Inaction Has Consequences.

[Cross-posted from the San Diego Union-Tribune]

By Christopher Elmendorf, Ricardo Flores and Jon Wizard

Last month, California’s Department of Housing and Community Development (HCD) notified San Diego that the city will be out of compliance with the state’s “housing element” law as of June 16 unless it commits to serious corrective actions before then. This is a make-or-break moment for San Diego and for the future of housing in the state.

Every eight years, California cities must adopt a state-approved plan, called a housing element, which shows how the city will accommodate its share of regionally needed housing. This law has been on the books for decades but was toothless until recently. Starting in 2017, the Legislature bulked up regional housing targets, added new sanctions, required cities to loosen zoning restrictions enough to achieve their share of the regional target, and insisted that housing plans undo historical patterns of segregation and exclusion.

What HCD decides in San Diego’s case will establish a landmark precedent for cities throughout the state — San Diego County is the first region to go through this process. It will also have immediate ramifications for San Diegans. Under state law, a city that lacks a compliant housing plan forfeits authority to deny or downsize affordable housing projects on the basis of the city’s zoning code and general plan. Thus, if San Diego falls out of compliance, it would have no choice but to approve large apartment and condo buildings even in neighborhoods zoned just for single-family homes.

Perhaps to shelter the city from this serious sanction, HCD has thus far treated San Diego with kid gloves. San Diego’s housing plan was due last September, but the plan the city adopted and sent to HCD had grave shortcomings. UCLA professor Paavo Monkkonen and his students found that 65 percent of the sites San Diego identified for low-income and multifamily housing are located in the poorest third of the city’s neighborhoods. San Diego has an unusually large percentage of its land area reserved exclusively for single-family homes, yet the city’s plan did not open any of these neighborhoods to multifamily housing. This flaunts the Legislature’s mandate to “affirmatively further fair housing.”

San Diego’s housing plan also presumed that every single parcel of land identified as having redevelopment potential will definitely be developed for new housing during the eight-year planning period. This parlor trick allowed the city to “show” that it can accommodate its share of regionally needed housing (108,000 new homes) without relaxing any land-use restrictions. Yet during any given eight-year period, many sites that have redevelopment potential will be tied up by long-term leases, held back by owners who don’t want to sell or stay unchanged for other reasons. San Diego’s “every parcel will be developed” assumption is like a university that needs a freshman class of 1,000 students deciding to admit only 1,000 applicants, even though the university knows (or could easily learn) from past experience that only about 1 in 3 admitted students will enroll. Just as the university would need to admit 3,000 applicants in order to enroll a class of 1,000, cities need to zone for several times their housing target in order to reach it. San Diego did not.

But instead of finding San Diego to be out of compliance last September, HCD deemed the city’s status quo plan “conditionally compliant” and gave the city six months to adopt amendments about fair housing and housing sites’ likelihood of development (the college admissions analogy). Disappointingly, the city has adopted no such amendments. Instead, in February, it quietly floated some inconsequential draft revisions that leave the status quo intact.

One of us leads a coalition of nonprofits that will soon launch a first-time home-buyer grant program for lower-income people of color. Our goal is to build modest for-sale homes — accessible to households earning no more than 80 percent of San Diego’s area median income — in high-wealth, low-crime neighborhoods. We’ve received several million dollars in charitable commitments, but the single greatest barrier we face is restrictive single-family zoning that makes it impossible to construct smaller, more affordable homes in most of the city.

It is a moral and economic imperative that San Diego open up exclusionary neighborhoods and revise its zoning code to allow a lot more multifamily housing. It’s also the law. HCD and Gov. Gavin Newsom must stand tall and enforce it. If they don’t, cities across the state will infer that compliance with the state’s “strengthened” housing law just requires embellishing the status quo with cheap talk about good intentions.

February 11, 2021

Who decides whether California misjudged the Bay Area's housing needs? (And why it matters)

[Cross-posted from the California Planning & Development Report]

By Christopher Elmendorf

Housing advocates YIMBY Law and YIMBY Action sued the state of California last week, arguing the Department of Housing and Community Development misjudged the housing need of the San Francisco Bay Area. The suit raises important questions at the intersection of transportation, climate, and housing policy.

The activists’ complaint has merit. But, the Legislature, not the courts, should resolve it.

Here’s what’s at stake. Every eight years, each city in California must adopt a housing element to accommodate their share of regional housing need, including the need for multifamily housing. Regional housing need determinations (RHNDs) are the state’s principal lever for making cities zone for dense, relatively affordable housing.

Senate Bill 828, enacted in 2018, substantially revised and improved the process by which HCD determines regional need. Previously, the state had relied almost exclusively on forecasted household growth. The obvious problem with this approach is that household-growth trends are the byproduct of land-use policy. Restrictive zoning impedes population growth. And as housing prices rise, young adults shack up with roommates or move back with their parents rather than forming new households. Using the forecasted number of households to judge the adequacy of a region’s land-use plans gets things exactly backwards.

SB 828 tells HCD to top off the baseline, household-forecast RHND with adjustments for cost-burdened and overcrowded households. These adjustments, along with an updated adjustment for vacancy rates, are supposed to better align the supply of housing in California with “healthy housing markets” in other regions of the nation.

Taking its new charge to heart, HCD delivered housing targets for the Bay Area and Southern California that are 2-3 times larger than what these regions had to plan for in previous cycles, from 187,990 units to 441,175 units in the Bay Area and from less than a half-million to over 1.3 million in Southern California.

So why are housing activists suing instead of celebrating? Because HCD appears to have overlooked an older adjustment factor, one which the Legislature added with a landmark climate change bill back in 2008: jobs-housing imbalance.

Escalating home prices have displaced much of the Bay Area’s working class to the Central Valley. As a result, the Bay Area now has the dubious distinction of being a national leader in “supercommuters”—people for whom a one-way trip from home to workplace takes more than 90 minutes. Although there is no settled methodology for adjusting a region’s housing target on account of such imbalances, I and colleagues have explored a couple of different approaches, which suggest that making the jobs-housing adjustment would probably increase the Bay Area’s RHND by roughly 25%.

YIMBY Law’s legal argument looks iron-tight at first glance. The statute says that HCD “shall make determinations in writing” on each of the adjustment factors, Gov’t Code 65584.01(b)(2). As best I can tell, no jobs-housing determination was ever made. An agency’s failure to make an assessment the law requires is normally reversible error.

But this is not a normal case.

There is a strong argument from the structure of the statute that the courts have no jurisdiction to review HCD’s regional need determinations. The RHND is the linchpin of a very complicated, multi-stage process that unfolds on a tight timeline prescribed by statute. The timeline does not accommodate a protracted legal battle – especially when, not incidentally, millions of Californians are under-housed.

Consider what must get done. “At least 26 months” before the housing elements of cities in a region come due, HCD “shall meet and consult” with the region’s council of governments “regarding the assumptions and methodology to be used to determine the region's housing needs.” After reviewing the council’s data and arguments, “the department shall make determinations in writing” regarding methodology. Next, HCD applies the methodology and cranks out the RHND, which shall achieve “a feasible balance between jobs and housing . . . .”

The council of governments then has 30 days to raise objections, and HCD is given 45 days to resolve objections. The statute says nothing about appeals by any other person or entity, or appeals to any authority other than HCD.

One way or another, the RHND must be finalized quickly, because “at least 18 months prior” to the due date for housing elements, the region’s council of governments must distribute a “draft allocation” of the RHND to cities and counties. (The localities’ shares of the RHND are called their “RHNAs.”) A rapid-fire sequence then unfolds: cities may appeal the draft allocation to the council of governments, the council holds public hearings on appeals, the council adopts a final allocation following additional hearings, and HCD reviews the final allocation for consistency with the RHND, revising it if necessary. Each step has tight timeframe for completion, usually 45 or 60 days.(Meanwhile, many cities in Southern California have appealed to the Southern California Association of Governments and are threatening to sue the state, because of allocations they consider too high.)

The timeframes must be tight because cities need to know their RHNA well in advance of the date their housing element comes due. Cities that lack sufficient capacity under current zoning to accommodate their RHNA must include a site-specific rezoning plan in their housing element. Using an HCD-issued spreadsheet, they must identify which parcels will be rezoned and the densities that will be allowed following rezoning.

The Housing Accountability Act requires cities to approve projects on such sites if the project’s density is “consistent with the density specified in the housing element,” even if the project is “inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation.”

Because a city’s housing element controls its development in this and other ways, a city may not adopt a housing element without completing environmental reviews required by the California Environmental Quality Act. This takes time. Yet if it takes too much time—such that the city fails to adopt a housing element on schedule—the city is likely to be found out of compliance. And a city without a compliant housing element apparently forfeits its authority to use its zoning code or general plan as the basis for denying any project with at least 20% low-income or 100% moderate-income units. Hence the need for speed.

The Legislature recognized the need for speed when it exempted regional housing need determinations and allocations from CEQA.

If every city or interest group dissatisfied with an RHND or RHNA could litigate the question in court, it’s doubtful that any city in the housing-constrained and disputatious regions of our state would be able to adopt a housing element on time. HCD and the courts would then face enormous pressure to ad lib waivers of the statutory deadlines—waivers which the statute does not authorize.

A decade ago, the Court of Appeal wrestled with these issues in a case brought by the City of Irvine. Irvine challenged not the RHND, but the very large share of the target that had been allocated to the city. The Court of Appeal concluded that Legislature must have intended to preclude judicial review of RHNAs, because the “the length and intricacy of the process created to determine a municipality's RHNA allocation” did not leave space for plodding, deliberative judicial proceedings.

The same goes for challenges to the regional determination of need (RHND). However, it’s not clear that City of Irvine will control YIMBY Law’s case. Generally speaking, judicial review is available by default in California unless the Legislature has “clearly” withdrawn it, and the housing statutes are silent on judicial review of the RHND. Moreover, the decision in City of Irvine seems to rest in part on the court’s belief that large RHNAs have no material consequences for cities, owing to provision of state law that allows cities to set less ambitious “quantified objectives.” That line of thinking, shaky at the time, has been totally undermined by developments in the years since. To give just one example, Senate Bill 35 (2017) tied a city’s obligation to permit certain projects ministerially to the city’s progress toward its RHNA, not some lesser quantified objective.

So what’s to be done? YIMBY Law’s suit necessitates a one-time legislative fix. While the jobs-housing adjustment is pretty inconsequential for most California regions (because the region encompasses the “commute sheds” of its major cities), this factor cannot be ignored for the Bay Area. Making the adjustment would also bring the Bay Area’s RHND close to parity with Southern California’s. (Whereas Southern California’s RHND for the upcoming cycle is more than three times larger than its last one, the Bay Area’s new target is only about 2.3 times as large, notwithstanding the Bay Area’s higher housing prices and rents.)

It would be simple enough for the Legislature to pass a bill raising the Bay Area’s RHND by 25% (the midpoint of my estimates of the jobs-housing adjustment), while ratifying HCD’s determination in all other respects. If it wished, the Legislature could also extend Bay Area cities’ deadline for submitting housing elements by a few months, though this seems unnecessary. And, to avoid any confusion, the legislature could provide that the 25% jobs-housing increment shall be distributed pro-rata to all cities and income categories. This is an easy rule to apply, and it respects the intraregional allocation chosen by the council of governments. Each Bay Area city’s target for each type of housing (very-low income, low-income, moderate-income, and above-moderate income) would increase by exactly the same percentage.

It is odd to think of the Legislature as a pseudo-appellate body sitting in judgment of a state agency or department. But given the process California has chosen for determining and allocating regional housing need, this is as it must be, at least for now.

A few years hence, we’ll be able to look back and see how the RHND -> RHNA -> housing element process played out during this cycle, and debate procedural and substantive reforms for the next cycle. Perhaps some will argue that expedited judicial review in a designated court should be part of the process. In the meantime, responsibility for supervising HCD’s determinations of housing need belongs to the Legislature, not the courts. 

For a fully footnoted version of this piece, please click here.

March 6, 2013

Are the Covered States “More Racist” than Other States?

By Chris Elmendorf and Doug Spencer. Cross-posted from the Election Law Blog.

During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”

This post offers a preliminary answer to the Chief Justice’s question, using recent data. Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.

There are essentially three schools of thought about how best to measure racial prejudice using survey questions. Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.” Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.” Still others favor measures of implicit or subconscious bias. For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.

We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans. Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100. On average respondents ranked their own group about 15 points above blacks on each trait. We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait. To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean. Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.[1]

To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced. But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.

We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.” The first is based on simple disaggregation of the large NAES dataset (N=19,325). This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample. For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion. We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).

Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:

The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation. The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).

We wish to emphasize that these are preliminary results only. Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice). We will present additional results at the Midwest Political Science Association conference in April.

Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning. Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”

Elmendorf is Professor of Law at UC Davis. Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley. Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.

July 2, 2012

Googling the Future of the Voting Rights Act

Cross-posted from JURIST.

Enacted in 1965 and reauthorized several times since, the Voting Rights Act (VRA) has long been regarded as the capstone of our nation's civil rights architecture. The VRA's core provisions have, however, come under sharp criticism from commentators and jurists who consider them outmoded or even unconstitutional in a society that is far more racially tolerant than it was in 1965. Defenders of the VRA argue that it remains necessary because contemporary racial prejudices or the lingering effects of past discrimination represent ongoing barriers to the political aspirations of minority voters and candidates.

Beyond riling up the already converted, neither side has made much headway in this debate. Progress has been slowed by difficulties in measuring the severity and geography of contemporary racial prejudices, and the extent to which they shape voters' decisions. Most scholars believe that survey-based measures of overt racial prejudice underestimate contemporary prejudice, because survey respondents do not want to be seen as racist or to see themselves as racist. Psychologists have developed alternative measures of "implicit bias" or "racial resentment" that do not require survey respondents to cop to being racist, but other scholars dispute the scientific [PDF] or normative [PDF] validity of these metrics. And whatever one makes of the metrics, they have not yet yielded a fine-grained picture of the geography of racial discrimination, which is necessary to resolve current controversies about the VRA.

My purpose in writing this commentary is not to describe the contours of seemingly intractable debate, but to argue that answers are finally at hand — thanks to path-breaking new research on the geography of discrimination. Seth Stephens-Davidowitz, a doctoral student in economics at Harvard, is deploying publicly available information to measure the frequency with which Google searches use the "n-word" in each of the nation's 210 media markets. (It turns out that most searchers who used the n-word were looking for derogatory jokes about black people.) He shows [PDF] that in relatively prejudiced regions, then-candidate for president Barack Obama substantially underperformed relative to his expected vote share.

I argue here that Stephens-Davidowitz's research is likely to be the nail in the coffin of Section 5 of the VRA, which requires jurisdictions in certain regions of the country to "pre-clear" changes to their election laws with the US Department of Justice or the District Court of the District of Columbia. But even as it hastens the demise of Section 5, Stephens-Davidowitz's work should greatly strengthen Section 2 of the Act, which applies nationally and which prohibits election laws that "result" in minority voters having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

The Coming Demise of Section 5

Section 5 of the VRA requires so-called "covered jurisdictions" — mostly states in the Deep South, plus a few states and localities elsewhere — to obtain the federal government's approval before implementing changes to their election laws. The feds must deny approval if the change would make minority voters worse off, or if it was motivated by a discriminatory purpose. The burden of proof is on the jurisdiction seeking pre-clearance. Section 5 was originally a temporary measure but it has been extended several times, most recently in 2006 for another 25 years.

The constitutionality of the latest extension first reached the US Supreme Court in 2009. The Court used some interpretive acrobatics to avoid the constitutional question for the time being — while signaling that Section 5 may well be struck down as an improper exercise of congressional enforcement authority under the Fourteenth and Fifteenth Amendments unless Congress takes steps to improve the fit between Section 5's reach and the occurrence of actual constitutional violations.

The problem, as some judges and commentators see it, is that Congress in extending Section 5 did not even try to improve its constitutional fit. The "coverage formula" for determining which jurisdictions are subject to Section 5 continues to be based on election returns from the 1970s and state practices in the 1960s and 1970s. Nor did Congress update the "bailout provisions," which determine whether a jurisdiction may escape from Section 5's coverage.

Defenders of Section 5 argue that the coverage formula is constitutionally adequate because it captures most of the former Jim Crow South, where intentional racial discrimination in the electoral process is likely to be worse than in other states. They also point out that adjudicated Section 2 violations have disproportionately occurred in covered jurisdictions, as have judicial findings concerning racial appeals in campaigns and related indicia of intentional discrimination by the electorate as a whole. But there are deep and, among empiricists, widely appreciated problems with drawing inferences about the extent of legally proscribed behavior from plaintiff success rates.

Enter the Stephens-Davidowitz study. With his Google-based measure of discrimination in hand, it is a trifling task to rank states or media markets by the resident population's animosity toward African Americans. Moreover, the powerful linkage between discrimination so measured and voting behavior means that a Voting Rights Act which targeted the worst-offending regions could be defended as a permissible response to the problem of election outcomes that are unconstitutional because of the racial basis for the electorate's verdict. (Elsewhere I have explained at length why election outcomes are unconstitutional if the winning candidate would not have prevailed but for racially biased votes. For a variety of reasons such constitutional violations cannot be remedied by the courts in litigation about a particular election, but they can, and should, be tackled by Congress through prophylactic legislation such as the VRA.) Also, racially discriminatory shenanigans by elected officials — the type of behavior that Section 5 was clearly meant to stop — are no doubt more likely to occur where the electorate is especially prejudiced.

A quick glance at Stephens-Davidowitz's ranking of the states reveals that there is, in fact, a positive correlation between covered status and anti-black prejudice. But the correlation is not impressive. West Virginia ranks first by racial animus but is not covered. Indeed, six of the top ten states by racially charged Google searches fall outside the reach of Section 5. In addition to West Virginia, the uncovered states of Pennsylvania, Kentucky, Michigan, Ohio and New Jersey have the dishonor of placing in the top 10.

But the more fundamental point is this: Congress can only be expected to craft a coverage formula tailored to the incidence of intentional discrimination if there exists a normatively acceptable and reliable method of ranking geographic regions by their residents' propensity to discriminate. This undertaking, which not long ago seemed nearly impossible, is now within easy reach of the concerned legislator. (To be sure, the relevant congressional subcommittee would have to commission additional work by Stephens-Davidowitz or others to obtain Google-metrics of discrimination against non-black minorities.)

This past May, the US Court of Appeals for the District of Columbia Circuit rejected the latest constitutional challenge to Section 5 on a 2-1 vote. Judge Stephen Williams, dissenting, would have enjoined the states from enforcing Section 5 unless or until Congress revises the coverage formula. The DC Circuit gave no indication that it was familiar with Stephens-Davidowitz's work (which was featured in the New York Times shortly after the court's decision). But I have little doubt that the Supreme Court will take the case and adopt Judge Williams's position, and I fully expect that at least some of the Justices in the majority will rest their argument on Google. It's conceivable that portions of Section 5 will be left operable, but I am no longer optimistic.

Should the Supreme Court demand that Congress update the coverage formula, this will be tantamount to invalidating Section 5 outright. In the current political environment, it's hard to imagine the necessary bipartisan coalition agreeing to a fix.

The Revitalization of Section 2

The implications of Stephens-Davidowitz's work for Section 2 of the VRA are much brighter. To repeat, Section 2 applies nationally, and requires minority plaintiffs to prove that the challenged electoral structures prevent them from "participat[ing] in the political process and elect[ing] candidates of their choice" on equal terms with other voters. What it means for an electoral structure to have this effect is not entirely clear, and in recent years Section 2 has suffered a string of narrowing interpretations at the hands of an increasingly conservative Supreme Court. The constitutional avoidance canon has been a mainstay of these decisions.

Most Section 2 cases have been brought by plaintiffs seeking the creation of electoral districts in which minority voters would have more influence or representation than they do under the status quo. As a threshold matter, such plaintiffs must show that voting is "racially polarized," meaning that members of the plaintiffs' racial group tend to prefer different candidates than do members of other racial groups. However, Section 2 does not require plaintiffs to demonstrate a recent history of unconstitutional racial discrimination by the government so elected, or that the remedy they seek would undo unconstitutionally discriminatory state action or prevent new instances of governmental discrimination going forward. Courts and commentators have therefore doubted whether Section 2 is a "congruent and proportional" response to constitutional violations (the legal standard for enforcement legislation under the Fourteenth Amendment and probably the Fifteenth Amendment).

Stephens-Davidowitz's work is incredibly important to the future of Section 2, for a couple of reasons. First, it establishes that anti-black animus remains a powerful force in the voting booth today. Across the nation as a whole, "between 6.7 and 10.7 percent of white Democrats did not support Obama because he was black." This is a shocking finding. In a high-profile presidential election, in which voters have vastly more information about the candidates' nonracial attributes and policy positions than they do in congressional, state and local elections, and in which voters are cued to rely on their partisan identities by the ballot itself, roughly 10 percent of white Democrats defected from their party's candidate. The effect of racial animus on support for black candidates in down-ballot races is almost surely greater. Insofar as Section 2's constitutional justification lies in racial discrimination by the electorate, as I have argued, the findings of Stephens-Davidowitz show that Section 2 responds to a real and substantial constitutional problem.

Stephens-Davidowitz's research will also help to solve one of the central doctrinal and practical difficulties in litigating Section 2 cases: establishing a nexus between "subjective discrimination" — i.e., decisions that would have been different had the race of persons considered by the decisionmaker been different — and the barrier to minority political participation that's at issue in the case.

The circuit courts have split on whether Section 2 plaintiffs must trace the electoral inequality at issue to subjective racial discrimination, either by conventional state actors or by the majority-group electorate. Most courts nominally adhere to the causation requirement, but as Professor Jim Greiner observes [PDF], they often subvert it in practice through aberrational burden-shifting rules. In a recent article I argued that Section 2 plaintiffs should be required to make the causation showing, albeit subject to a relaxed evidentiary standard. But, as several readers pointed out, I didn't say much about what kinds of evidence ought to suffice or how that evidence might be obtained.

The Holy Grail for implementing the causation requirement is a measure of societal discrimination that's reliable, tied to voter behavior, geographically specific and low-cost for plaintiffs to produce. With such a measure in hand, the courts could create truly sensible evidentiary presumptions and burden-shifting rules. For example, they might presume that racially polarized voting is caused by racial prejudice in locales that rate "worse than average" on the measure of societal discrimination, but by socioeconomic differences in other areas. (Such presumptions should be rebuttable.)

Stephens-Davidowitz's Google-based metric of anti-black discrimination fits the bill precisely. It is replicable, it explains otherwise puzzling disparities in voter behavior, it is specific to each of 210 geographic regions, and it appears to be cheap to produce and update. To be sure, there is a lot of additional work that could be done to validate the measure vis-à-vis non-presidential elections, and to create and validate analogous measures of anti-Latino, anti-Native American and anti-Asian sentiment. Nor is Stephens-Davidowitz's approach the only promising way to measure or proxy voter discrimination. But his work represents a huge leap forward, and has genuine potential to revolutionize Section 2 litigation.


May 24, 2012

The Voting Rights Act: Limiting Partisan Barriers to Voter Participation

Cross-posted from JURIST.

The national Democratic and Republican parties are today both highly polarized and evenly matched. Elections have become pitched battles for control of government, and the candidates who lead the charge for each party have dramatically different ideas about what the government should do. Under these conditions, small turnout swings within each party's base can have very large consequences for the course of public policy.

It is probably not coincidental that in recent years Republican-controlled state legislatures have enacted numerous anti-fraud regulations of the voting process, such as photo ID requirements, or that Democrats have portrayed these measures as disingenuous schemes to reduce participation among likely Democratic voters. When political parties are evenly matched and the policy stakes are high, the parties and their interest-group supporters can be expected to try to shape the electorate to their advantage — and to try to delegitimize the other side's program of electoral reform.

Not all states enjoy the same latitude to enact barriers to participation, however. The Voting Rights Act (VRA) obligates the so-called "covered jurisdictions," which include most of the former Jim Crow states, to "preclear" new regulations of the electoral process with the US Department of Justice (DOJ) or the US District Court for the District of Columbia. Under Section 5 of the VRA, a state seeking preclearance must show that the requirement it wishes to implement was not adopted with a discriminatory purpose, and will not have a retrogressive effect on racial minorities' political participation. The burden of proof is on the state.

The DOJ recently relied on the "effects" prong of Section 5 to deny preclearance to voter ID requirements adopted in South Carolina and Texas. The DOJ has also interposed effect- and purpose-based objections to several Florida reforms that are currently before the US District Court of the District of Columbia. At a time when African Americans and Latinos overwhelmingly vote for Democrats it is easy to see why the Section 5 retrogression test complicates Republican efforts to reshape the electorate. A law that disproportionately burdens Democratic participation (relative to the status quo) is likely to burden racial minorities more than whites. If that is the case, the law is "retrogressive" on the standard understanding of Section 5.

This commentary argues, however, that the purpose rather than the effects prong of Section 5 likely represents the greater (or at least the more enduring) barrier to Republican efforts to limit participation by Democratic voters. The effects prong will probably be whittled away or invalidated by the US Supreme Court. The purpose prong has a somewhat firmer constitutional footing, since regulations of the voting process meant to disadvantage a class of voters defined by race violate the Fourteenth and Fifteenth Amendments.

To be sure, there is scant evidence that Republican legislators in Florida, Texas, or South Carolina had a racial purpose in mind when adopting the voting requirements to which the DOJ now objects. But if these states stipulate that their requirements were adopted for partisan purposes, they risk a public backlash that could tarnish the Republican brand, and they may inadvertently strengthen the hand of plaintiffs in subsequent constitutional litigation. On the other hand, if they stipulate that their requirements were not adopted for partisan reasons, they may have a hard time carrying their burden to prove the absence of a discriminatory purpose, because there is evidence that these measures will have a racially disparate impact but do little to combat fraud.

The Voting Rights Act in Covered Jurisdictions

The Voting Rights Act contains two principal provisions. Section 2, which applies nationally, establishes an uncertain barrier to election laws that prevent minority voters from participating in the political process and electing candidates of their choice on equal terms with others. Section 5, by contrast, applies only to certain states and localities with a history of discrimination, and is conceptually more straightforward. An electoral reform that makes minority voters worse off relative to the status quo violates the effects prong of Section 5. Preclearance must also be denied if the measure at issue was motivated by "any discriminatory purpose" with respect to race or color.

Section 5 rests, however, on precarious constitutional footings. The Voting Rights Act originally provided that Section 5 would sunset after five years. The provision was re-enacted on a temporary basis in 1970, 1975, 1982, and, most recently, 2006 (for another 25 years). In hearings before the 2006 reenactment, legal scholars warned that Section 5 would be at risk of judicial invalidation unless the US Congress updated the "coverage formula," which establishes the geographic reach of the preclearance requirement, or the "bailout provisions," which enable jurisdictions that have not discriminated recently to escape coverage. But Congress did neither. It modified the statute only to extend it, and to overrule a pair of Supreme Court decisions that had given covered jurisdictions a little more room to maneuver.

In Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court heard arguments regarding the constitutionality of amended and extended Section 5. The Court ended up deciding the case on statutory grounds, using the constitutional avoidance canon to engineer a surprising and contra-textual reading of the bailout provisions. Along the way the Court signaled grave doubts about the constitutionality of the 2006 extension, emphasizing:

  • (1) that the preclearance requirement imposes substantial "federalism costs," and differentiates between the states "despite our historic tradition that all states enjoy 'equal sovereignty'";
  • (2) that the preclearance requirement forces states to engage in race-minded decisionmaking that would otherwise violate the Equal Protection Clause; and
  • (3) that the coverage formula "is based on data . . . more than 35 years old, and there is considerable evidence that it fails to account for current political conditions."

NAMUDNO is just the latest in a long line of cases in which the Court has relied on the constitutional avoidance canon to narrow the reach of the VRA without actually holding it unconstitutional. Many observers, myself among them, expect this pattern to continue. The constitutional avoidance strategy has both political and doctrinal benefits for a strategic Court. It allows the Court to pare back the VRA without receiving all the media and political attention that would follow outright constitutional invalidation. And it saves the Court from having to explain exactly why the VRA violates the US Constitution, which in turn helps the justices to sidestep questions about whether their constitutional reasoning is faithful to precedent.

Constitutional Avoidance and the Two Prongs of Section 5

It can certainly be argued that the coverage formula is so outdated as to render Section 5 constitutionally unenforceable. Esteemed DC Circuit Judge Stephen Williams advanced this position in his dissenting opinion in Shelby County v. Holder, a case decided just last Friday. Yet, whether Section 5 is a "congruent and proportional" remedy for constitutional violations — the constitutional standard for Fourteenth and probably Fifteenth Amendment enforcement legislation — depends not on the coverage formula alone, but on the interplay among the coverage formula, the preclearance standard and the bailout provisions. A coverage formula that is grossly overbroad on its face could prove to be very well tailored in application, if it were easy for "innocent" jurisdictions to bail out of coverage. Similarly, a VRA with an overbroad coverage formula could do a very good job intercepting unconstitutional state action while minimally burdening the states in other respects if preclearance proceedings were low-cost, accurate and tightly focused on the question of whether the measure submitted for preclearance was designed to discriminate on the basis of race.

Seen in this light, the constitutional problem with Section 5 would be substantially alleviated if the courts eliminated or scaled back the "no retrogressive effect" condition for preclearance, while leaving in place "no discriminatory purpose." The effects prong of Section 5 bears only an attenuated relationship to constitutional violations, whereas the purpose prong targets them directly as voting requirements adopted for racially discriminatory reasons face strict scrutiny under the Fourteenth and Fifteenth Amendments.

To see the potential mismatch between the effects prong and the Constitution, imagine a covered jurisdiction that allows on-demand absentee voting. Anyone may vote absentee, irrespective of whether his or her personal circumstances make it difficult to vote in person. Further assume that minority citizens disproportionately vote absentee, and that, as experts generally believe, most voting fraud occurs in connection with absentee voting. If the state passed a law limiting absentee voting to citizens for whom in-person voting represents a hardship, there would be scant basis for suspecting a racially discriminatory purpose. Yet, this entirely conventional and innocently motivated reform would probably have a retrogressive effect on minority political participation.

The able lawyers representing Texas, Florida, and South Carolina in preclearance proceedings now before the US District Court for the District of Columbia have laid out a smorgasbord of options for curtailing the effects prong of Section 5 in ways that would permit the covered jurisdictions to introduce photo ID requirements for voting, to change the time period for voting and to restrict voter-registration drives by nongovernmental organizations. The courts have been invited to hold, for example, that the retrogression test is specific to redistricting; that the effects prong reaches only substantially or materially burdensome laws; or that a voting requirement is retrogressive only if it actually reduces the number of ideally preferred "candidates of choice" whom the minority community can elect, given the state's system of legislative districts. These litigating positions find little support in the text and legislative history of Section 5 viewed as a whole, but they will pass some observers' laugh tests. And, as NAMUDNO indicates, the Court seems happy to blast away at the VRA with the constitutional avoidance canon whenever a thin veneer of conventional legal argumentation can also be adduced to support a narrowing interpretation.

Section 5 may or may not be invalidated outright, but I would be quite surprised if the retrogression test persists for very long as an independently forceful counterpart to the "purpose" prong. The purpose test has problems of its own, but at least it remains closely tethered to state action that violates the Constitution.

The Status of Partisan Barriers to Voting Under the Purpose Prong of Section 5

The Voting Rights Act was not designed to counteract partisan, as opposed to racial, discrimination. One might suppose, then, that a covered jurisdiction could carry its burden under the purpose prong of Section 5 by showing that the voting requirement at issue was well-tailored to a partisan purpose — such as to reduce turnout among Democratic voters. Similar arguments are regularly made by state defendants in constitutional challenges to the design of legislative districts. The Supreme Court has applied strict scrutiny to legislative districts whose "predominant purpose" was to facilitate the election of a candidate of a particular race. But where race and partisanship are highly correlated, state defendants have successfully argued that districts that appear racially designed were actually intended to advance a partisan agenda.

There are two problems with making this "partisan purpose" move in preclearance proceedings that concern barriers to voting, as opposed to maps of legislative districts. One is constitutional. It is well settled that redistricters may design legislative districts for partisan advantage. There may exist an outer limit, some point at which constitutionally acceptable partisanship becomes constitutionally excessive, but the Supreme Court has shown no interest in drawing this line.

The permissibility of partisan efforts to gerrymander the electorate itself is much less certain. Back in the 1960s, the Supreme Court held in Carrington v. Rash that "[f]encing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." On the other hand, the lead opinion in Crawford v. Marion County Election Board states:

[I]f a nondiscriminatory law [such as a voter ID requirement] is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.

To see the delicate problem facing covered jurisdictions, recall that the party seeking preclearance bears the burden of proof that "any" racially discriminatory purpose precludes preclearance and that covered jurisdictions have a history of discrimination (most are former Jim Crow states). Now, consider a voting requirement that has a racially discriminatory impact and that addresses a "problem," such as fraud by third-party voter registration groups, for which there is little evidence. To avoid the inference that racially discriminatory motives played some part in the adoption of this measure, the state seeking preclearance might have to admit that the voting requirement's predominant or overriding purpose was to reduce turnout by the other party's supporters, and to show that the requirement was fairly well tailored to this purpose.

These concessions could, however, prove fatal in subsequent constitutional litigation. Although after Crawford partisanship appears permissible when it represents but one of many rationales for a voting requirement, there are strong arguments that partisanship may not predominate over other considerations in the design of such requirements — particularly if the partisan objective is not to prevent fraud by the other side but rather to discourage participation by eligible voters who happen to support the other party's candidates.

Even if the constitutional challenge were to fail, a state's concession that voting requirements adopted on a party-line vote were mainly intended to hinder voting by the other party's supporters could be quite damaging politically. The gerrymandering of legislative districts for political advantage is a time-honored, bipartisan tradition and the architects of partisan gerrymanders do not hide their ambitions. But recent restrictions on voting and voter registration do not have a similar pedigree. Republicans have been pushing all the restrictions. Democrats have been consistently fighting back. Republicans have adamantly denied that their motive is to prevent Democrats from getting to the polls. Rather, they have argued that the new requirements are reasonable, nondiscriminatory responses to the threat of fraud and that it is Democrats who would jeopardize the integrity of the electoral process by opposing these measures for base political reasons.

The political rhetoric suggests that the actors who are closest to the ground believe that voters may punish the Republican Party if they believe that Republicans have been jiggering the voting process to keep Democrats away from the polls. To concede in legal briefs what the party has been adamantly denying in the court of public opinion may well debase the party's brand in the eye of independents. At a time of political equipoise, that's a serious risk indeed.

So it is that, in a strange and ironic turn, the Section 5 prohibition on racially discriminatory voting requirements could end up defanging politically discriminatory requirements that have nothing to do with race — even if the Supreme Court neuters the effects prong of Section 5, as I and many others expect.

None of this is certain. The Supreme Court might invalidate Section 5 altogether. It might establish evidentiary presumptions under the purpose prong that insulate covered jurisdictions in the absence of direct, "smoking gun" evidence of intentional racial discrimination. It might reject the argument that voting requirements adopted for predominantly partisan purposes violate the Constitution, even if those purposes are conceded. But I suspect that Justice Kennedy and his liberal colleagues will successfully resist the gutting of the purpose prong of Section 5, and will reject the view that states may enact voting requirements primarily to reduce voting by the minority party's supporters. If I am right, the purpose prong of Section 5 will probably operate as an unintended limitation on partisan gerrymanders of the electorate itself.

December 17, 2010

Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part Two in a Two-Part Series

Cross-posted from

My prior column, Part One in this two-part series, introduced readers to Proposition 26, a state constitutional amendment adopted by California voters in November that (1) reclassifies many regulatory fees as taxes, thereby subjecting them to supermajority- and referendum-vote requirements under the California Constitution, and (2) changes the trigger for supermajority and referendum votes on tax increases.

Previously, only measures that would increase public revenues faced this high hurdle; following Prop. 26, a bill that increases taxes on any person (or corporation) must pass by supermajority and/or referendum vote, even if the bill reduces taxes overall.

Prop. 26, I explained, may be challenged on the ground that it violates the state constitution's "single-subject rule"--a rule meant to protect voters from "be[ing] misled as to the overall effect of [a] proposed amendment" by "improper emphasis . . . placed upon one feature."

In their arguments in the ballot pamphlet, and in the "Statement of Findings and Purposes" included into the text of the proposition, proponents of Prop. 26 highlighted the first reform (reclassifying "fees" as "taxes") and entirely ignored the second (changing the supermajority/referendum trigger).

Yet my last column concluded that a single-subject challenge to Prop. 26 would most likely fail under the law as it stands today. California courts have applied the prevailing test for single-subject violations leniently, mostly insensitive to the risk of voter confusion.

In this column, which concludes the series, I will explain how the courts may refine the test for violations so as to better realize the purpose of California's single-subject rule: to prevent initiative proponents from duping the electorate into adopting reforms that voters do not understand and would not support.

"Purpose" as Represented to the Electorate

The black-letter test for single-subject violations requires that "all of the parts" of a challenged initiative be "reasonably germane to each other, and to the general purpose or object of the initiative." There remains considerable ambiguity, however, about how judges should go about identifying a measure's "general purpose or object" -- as I explained in my last column.

Given the original rationale for California's single-subject rule, the courts should hold that the "general purpose or object" of a ballot initiative is the measure's central, public purpose as represented by proponents to the electorateand understood by ordinary voters.

So long as the principal components of a ballot proposition reasonably advance the measure's public purpose as ordinary voters understand it, the measure's adoption is unlikely to result from voters being misled as to the initiative's "overall effect" by "improper emphasis . . . placed upon one feature."

To be sure, there will often be doubt about what voters understand to be the public purpose of a ballot initiative. And different voters may see the same measure rather differently. But it would be easy enough for courts to implement the proposed approach using an objective "ordinary reasonable voter" standard, and guided by appropriate presumptions.

For example, the courts could hold that the purpose stated by the initiative's proponents in the ballot pamphlet is rebuttably presumed to be the public purpose as conveyed to and understood by voters. (Research by political scientists shows that many voters peruse the ballot pamphlet to get the gist of proponents' and opponents' arguments, and to see who supports and opposes the measure, although very few read and assimilate the detailed legislative analyst reports.)

That presumption might be rebutted with evidence of purpose as conveyed by proponents' mass-media advertising, or, less probatively, by purpose as discussed in news coverage. Opinion polls could furnish evidence of public understandings.

"Reasonable Germaneness" as Contextual: Preferences and Politics Matter

One more step is necessary to realize the original purpose of the single-subject rule. The courts actually have two options; either would suffice (the difference is mostly rhetorical).

One option is to interpret the reasonable-germaneness test not as a requirement of minimal means/ends fit, akin to the rational basis test familiar from equal protection jurisprudence, but as a contextual inquiry under which the "reasonableness" of a given level of "germaneness" varies with the nature of proposition at issue, the campaign for and against it, the preferences of the voters who supported it, and the proposition's margin of victory.

The second option is take the minimal approach to "reasonable germaneness," while expressly recognizing an alternative basis for single-subject invalidation--to wit, a showing that an electorally decisive number of the measure's supporters were confused about one of its component parts, and that once informed, they object to that part being included in the proposition.

A Hypothetical Illustrates the Problem with the Minimal Approach

Imagine that firms utilizing certain hazardous substances in the workplace are required to file detailed emergency-response plans with the state occupational safety agency. Following a horrific and widely-publicized accident, petitions are circulated for a ballot initiative that would require these companies to file emergency response plans with local governments as well, and that spells out in enormous and largely redundant detail precisely what must be included in the emergency response plan. (Assume that, prior to the initiative, it was open to local governments to request and receive firms' emergency response plans from the state agency.) The initiative establishes a modest penalty for noncompliance.

Buried in the measure's fine print is an exemption from all state taxation for the next one-hundred years for firms that meet two conditions: (1) the firm employs hazardous materials in the workplace; (2) during the last ten years or during the next ten years, the firm won (wins) an award from a named industry trade group for "outstanding safety practices."

There is little organized opposition to the measure, but the "Yes" campaign is pretty well funded--by a handful of corporations that recently won the award in question. The measure passes easily, on the strength of support from voters who still have terrifying images of the recent accident seared into their brains.

Does this initiative run afoul of the single-subject rule, thanks to the tax exemption? It certainly should.

The exemption does relate to the initiative's public purpose as understood by voters. (The public purpose is to prepare local governments to deal with industrial accidents, and the tax break arguably incentivizes firms to improve the plans they file with local governments.) But there can be little doubt that average voters who discerned and understood the tax exemption detested it, and that the exemption was not remotely necessary to achieve the initiative's public purpose.

Indeed, in light of the funders of the "yes" campaign, the fact that the bestower of the award (with its related tax break) is an industry trade group, and the doubtful relationship between the initiative as a whole and its public purpose, the initiative seems a paradigm case of "the potentially deceptive combination of unrelated provisions at which the [single-subject rule] is aimed."

Lessons for the Courts

This hypothetical suggests that courts concerned with voter bamboozlement should apply the "reasonable germaneness" test in a relatively stringent fashion where (1) the allegedly "separate" subpart of the proposition is substantively objectionable for well-informed voters who support the rest of the measure; and (2) the "No" campaign was poorly funded, or there is other evidence indicating that many "Yes" voters misunderstood or were unaware of the objectionable subpart.

Other circumstances will call for relatively lax applications of the reasonable-germaneness test. For example, if the allegedly separate subpart is found in a comprehensive, complex initiative that responds to a large, difficult problem, the courts should treat it gently (other things equal). Inevitable imperfections of drafting and judgment should not lead to the invalidation of reasonable efforts to use the initiative as a battering ram against social and political problems that the legislature won't touch. (See the concurrence of Justice Werdegar in Manduley.)

Nor should ballot initiatives be invalidated simply because they contain a section which, though functional vis-à-vis the measure's purpose and other parts, lacks independent majority support. (A point recognized in Brosnahan v. Brown.)

And courts should be more lenient whenever the proposition's description on the ballot itself fairly discloses the putatively "separate" part at which the single-subject challenge aims. (Recent work by political scientists indicates that ballot-level descriptions of initiative measures have a substantial effect on vote choice.)

Implications for Proposition 26

How does Prop. 26 fare under the framework I have sketched? Not well.

The first and potentially decisive point is that the public purpose of Prop. 26 was to close the loophole that enabled state and local lawmakers using clever nomenclature (labeling taxes "fees") to end-run the California Constitution's supermajority- and referendum-vote requirements.

Subjecting so-called "hidden taxes" to "the same vote requirements" that apply to regular taxes was the only objective stated in the proponents' argument in the voter guide, and in the findings-and-purposes section of the proposition itself. No doubt it was also the purpose conveyed to the electorate through mass-media advertising.

If "purpose" within the meaning of single-subject doctrine is purpose as represented to the electorate and understood by ordinary voters, then Prop. 26 looks quite vulnerable. Changing the existing trigger for a supermajority or referendum vote is not even rationally related to the stated objective of subjecting "fees" to the trigger that had applied to taxes.

This, arguably, is the end of the matter. A court ruling on Prop. 26 need not reach the question of whether "reasonable germaneness" is properly understood as a contextual inquiry that accounts for the likelihood of electorally decisive voter confusion, or whether the single-subject clause supports a separate, stand-alone test--a supplement to the "reasonable germaneness" inquiry--for claims predicated on voter confusion about subparts to which well-informed voters object.

But if the courts were to look further, they would discover additional reasons to invalidate Prop. 26--if, as the California Supreme Court has said, the "principal purpose" of the single-subject rule is "to avoid confusion of . . . voters . . . and to prevent the subversion of the electorate's will."

Most importantly, as my prior column explained, conservatives, liberals, and moderates alike who understand the new trigger are likely to find it objectionable on the policy merits. It will benefit the tobacco, oil, and alcohol interests that funded the Yes-on-26 campaign, but not ordinary taxpayers or principled ideologues. In the scholarly lingo, the new trigger is a rider, a disfavored public policy piggybacking on an otherwise popular reform.

It is one thing for voters to be confused about a matter to which they are indifferent on the merits; it is quite another for them to be misled about a reform to which they would object.

Also significant is that the election was very close. A vote swing of 2.5 percentage points would have changed the outcome. Given that most "Yes" voters likely would disfavor the new supermajority/referendum trigger in a world of full information, voter confusion probably determined the election outcome. This assumes, of course, that a significant share of "Yes" voters were obtuse to the trigger issue.

Prop. 26's Supporters Have Some Arguments to Raise -- But None Is Persuasive

Defenders of Prop. 26 have a couple of cards they could play in response (accepting for now the doctrine I have urged). One, they might point to the legislative analyst's statement in the voter guide, which clearly explains the change to the supermajority/referendum trigger.

But as I argued earlier, legal analysis under the single-subject rule should reflect the practices and capacities of "ordinary reasonable voters," and few propositions would command wider assent among political scientists than that ordinary voters do not read and assimilate the legislative analyst reports in California's mammoth voter guides.

Second, Prop. 26 defenders could point to the financial resources of the "No on 26" campaign. While the "Yes on 26" campaigns raised nearly five times as much money as the "No" campaign, the "No" campaign did amass several million dollars. Whether opponents had enough money to reasonably inform the electorate about the new trigger is doubtful, however, given that the issue is technical and not amenable to catchy sound-bite advertising, and given the expense of mass-media advertising in California.

Needless to say, anyone thinking of bringing a single-subject challenge to Prop. 26 would do well to conduct opinion and knowledge surveys of California voters posthaste, so as to better understand what "Yes on 26" voters knew about the reforms they wrought.

Larger Objections, Briefly Answered

There are at least two substantial objections to my confusion-centric approach to the single-subject inquiry. One is that, as an interpretive matter, it is too far removed from the text and history of the California Constitution.

Professor Daniel Lowenstein maintains that the drafters of the 1948 single-subject amendment meant to apply to constitutional ballot initiatives the same standard that had long been applied to legislation. This plausible understanding was accepted in a contemporaneous decision of the California Supreme Court.

Moreover, the "plain meaning" of the constitutional text arguably calls for an abstract inquiry into the "subject(s)" of a challenged measure, not an assessment of voter beliefs and political context. (But my approach does not flaunt the text. It requires, among other things, that the initiative contain a discrete "part" about which voters were confused.)

Whether one sides with Lowenstein's approach or my own probably boils down to essentially unarguable differences of jurisprudential disposition. If you believe, as I do, that constitutional provisions should be read flexibly, in light of changed conditions, to realize the ratifiers' purposes, then you'll favor my approach. (Consider the role of the initiated constitutional amendment in California governance circa 1948, and circa 2010.) If you don't, you won't.

The other objection is that my approach would politicize single-subject adjudication. Professors Rick Hasen and John Matsusaka have provided evidence that judicial application of the single-subject rule is heavily influenced by judges' partisan affiliations in states with demanding single-subject tests, but not in states like California with deferential doctrines.

I have three responses to the politicization worry. First, as many scholars have noted, the conventional "demanding" approach to the single-subject rule consists of a subjective inquiry into whether the parts of a ballot measure have something in common.

My approach provides vastly more guidance to judges. It centers the "purpose" inquiry on what the initiative proponents represented to the electorate, and it ultimately resolves into a question that can be answered more or less objectively: Did the initiative contain a discrete subpart that a decisive number of "Yes" voters did not understand and (once they understand it) do not like? There would be hard cases from time to time, but this is true of most areas of law.

Second, it would be a mistake to characterize single-subject adjudication as predominantly partisan or ideological. Professor Michael Gilbert's ingenious empirical research shows that legal variables (both express and implicit) explain much more of the variation in single-subject decisions than do ideological variables, even under the current mushy standard. To the extent that the legal test can be focused and refined, extra-legal considerations are likely to have even less sway.

Finally, if the California Supreme Court becomes anxious about judicial partisanship in single-subject adjudication, it is open to the Court, as a prudential matter, to bar voter-confusion/single-subject invalidations except in cases where the "secondary part" of the proposition is substantively undesirable from both liberal and conservative perspectives. This would make the doctrine harder to apply, with a straight face, in a manner that narrowly advances judges' personal political preferences. But it would not save Proposition 26.

December 16, 2010

Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part One in a Two-Part Series

Cross-posted from FindLaw.

In 1948, the people of California amended their constitution to establish a "single-subject rule" for constitutional amendments enacted by ballot initiative. Writing in the official ballot pamphlet, proponents argued that "[t]he busy voter does not have the time to devote to the study of long, wordy propositions and must rely upon such sketchy information as may be received through the press, radio, or picked up in general conversation."

The single-subject rule was necessary, proponents said, lest voters "be misled as to the over-all effect of [a] proposed amendment" by "improper emphasis . . . placed upon one feature . . . ."

Last month, the people of California narrowly adopted little-noticed Proposition 26, an initiated constitutional amendment whose fate will tell us much about whether the original, animating purpose of California's single-subject rule lives on today.

The Effect of Proposition 26

Prop. 26 does two things. First, it reclassifies many so-called regulatory fees as taxes, bringing them within the coverage of California's legendary Proposition 13 (which established supermajority-vote requirements for state and some local tax increases) and Proposition 218 (which established referendum and supermajority requirements for many local taxes).

Second, Prop. 26 changes the trigger for the supermajority/referendum requirement. Previously, a tax bill only faced this hurdle if it would result in a net increase in government revenues. Prop. 26 specifies, however, that a bill that increases taxes on even a single taxpayer must clear the hurdle, whatever its net effect.

So does Proposition 26 have two "subjects" or one? The standard doctrinal test for single-subject violations holds that a challenged initiative is permissible only if "all of its parts are reasonably germane to each other, and to the general purpose or object of the initiative."

If the courts may infer a "general purpose or object" from the substance of the measure, then Prop. 26 should pass this test with ease. Both of its parts cohere with the common purpose of protecting the reliance interests that some taxpayers may have in not being burdened with additional fiscal obligations to the state.

Yet this was not the purpose sold to the electorate, or stated in the proposition's "Findings and Declarations of Purpose." Prop. 26 was plainly and simply marketed as a loophole-closing measure, one which would stop politicians from evading Prop. 13 with revenue measures labeled "fees."

Not once does the proponents' argument in the ballot pamphlet even mention the new trigger for supermajority and referendum votes ("higher taxes on anyone, regardless of net revenue effects"). In all likelihood, the vast majority of Californians who voted "Yes" on Prop. 26 had no idea they were changing the trigger. And, importantly, they might well have reconsidered their vote had they understood it.

Conservatives should hate the new trigger because it subjects revenue-reducing and revenue-neutral bills to the supermajority/referendum requirement (insofar as the bill raises taxes on anyone). This will make it harder to reduce the overall size of government and to substitute new sources of revenue for the most incentive-destroying taxes presently found in the code.

Liberals should hate the new trigger because it makes it harder to achieve their public health, safety, and environmental goals (by replacing existing taxes with fees on pollution and unhealthful products).

And voters in the middle should hate the new trigger because they are the likely beneficiaries of any legislation that reallocates burdens across taxpayers without increasing taxes overall.

The only interests that stand to benefit from the new trigger are the oil, tobacco, and alcohol groups that funded the "Yes on 26" campaign. If the single-subject rule aims to thwart the bamboozlement of voters, Prop. 26 looks like a ripe target indeed.

In the remainder of this column, I'll assess the vulnerability of Prop. 26 under current law. In a companion piece to be published tomorrow, as Part Two in this series, I'll offer some doctrinal refinements that would better mesh California's single-subject jurisprudence with the purpose of the rule.

"Reasonably Germane" . . . to What?

As noted above, the California Supreme Court has implemented the single-subject requirement by assessing whether "all of the parts" of a challenged measure are "reasonably germane to each other, and to [the measure's] general purpose or object."

This test is conventionally lax. Dozens of initiatives were challenged unsuccessfully before, in Senate v. Jones (1999), the California Supreme Court finally vindicated a single-subject claim.

Jones, for present purposes, is less important for its holding than for what the Court said about voter confusion and how the Court conducted the reasonable-germaneness inquiry. Oddly enough, what the Jones Court said and what it did have strikingly different implications for Prop. 26.

Begin with voter confusion. Citing the 1948 ballot pamphlet, Jones explains that the "principal purpose of the [single-subject rule] was . . . to avoid confusion of either voters or petition signers and to prevent the subversion of the electorate's will." Jones then offers a lengthy and approving discussion of California Trial Lawyers Association v. Eu (1988), in which the intermediate court of appeals struck down a no-fault insurance proposition that included a suspiciously inconspicuous section. That section insulated the insurance industry against targeted campaign-finance regulations, and declared that legislators who receive lawful campaign contributions from insurers (among others) shall not be disqualified from participating in donor-affecting decisions.

Because there was neither a "reasonably discernable nexus between thestated object of the initiative[, lowering the cost of auto insurance,] and the campaign-finance and conflict-of-interest provisions," nor "any reference to those provisions in the initiative's ballot title and summary, or its statement of findings and purposes," the California Trial Lawyers Court concluded that the initiative at issue was an exemplar of "the potentially deceptive combination of unrelated provisions at which the [single-subject rule] is aimed."

Though it lauds California Trial Lawyers, Jones leaves some doubt about whether the "purpose" that grounds the reasonable germaneness inquiry must be the same purpose that the measure's proponents represented to the voting public. Jones evaluates the challenged initiative in terms of several hypothetical purposes advanced by proponents' lawyers, without stopping to consider which purposes actually informed voters' understanding of the proposition. In leading cases upholding ballot initiatives against single-subject challenges, however, the California Supreme Court has relied on purposes stated in or readily inferable from the measure's title and ballot summary.

In light of that practice, and of Jones's celebration of California Trial Lawyers, it is entirely possible the discussion of hypothetical purposes in Jones served only to illustrate just how badly the challenged initiative ran afoul of the single-subject rule. But Jones does give defendants an opening to argue that single-subject challenges may be met and defeated by showing that the component parts of a proposition are reasonably germane to a hypothetical purpose. Under that test, a single-subject challenge to Prop. 26 would, as noted above, almost surely be a loser--subject to one important caveat.

A Separate Test for Voter Confusion?

The caveat is this: it's not settled that a finding of "reasonable germaneness" necessarily ends the single-subject inquiry. In several cases, the California Supreme Court has considered (and rejected on the merits) plaintiffs' voter-confusion arguments after having concluded that the germaneness test was satisfied.

These precedents give plaintiffs a doctrinal toehold to argue that irrespective of "reasonable germaneness," a single-subject violation may be found in certain cases where voters were substantially confused about an important subpart of the proposition.

Alas, what the California Supreme Court has actually said in response to voter-confusion arguments flies in the face of everything that political scientists now understand--and that proponents of the single-subject rule intuited back in 1948--about how ordinary citizens vote on ballot propositions.

In Manduley v. Superior Court (2002), for example, the majority stressed that an allegedly obscure and confusing subpart of the ballot initiative had been carefully explained in the legislative analyst's report found in the voter guide. "We must assume," the majority wrote, that "the voters duly considered and comprehended these materials."

Justice Carlos Moreno, concurring, challenged this assumption: "[W]hile it is to be hoped that voters carefully study their ballot guides, the realistic premise behind the single-subject rule is that many voters do not . . . ."

The Bottom Line

Where does this leave Proposition 26? On one hand, the story of Prop. 26 resembles in important respects the story of the proposition invalidated in California Trial Lawyers. Prop. 26 includes a peculiar provision (the new trigger for supermajority/referendum votes) that has no "reasonably discernable nexus" to the purpose declared in the text of the measure and represented by its proponents to the electorate (to wit, closing the "fee label" loophole). And, as in California Trial Lawyers, the secondary provision was not noted in the description of Prop. 26 on the ballot.

On the other hand, the history of single-subject adjudication in California has been a history of judicial laxity, and the courts certainly could impute a purpose to Prop. 26 that would encompass all of its provisions, or naively conclude that both the hidden and the overt components of Prop. 26 relate to the subject of "tax limitations."

As for the risk of voter confusion, the courts could say that this is not an independent basis for single-subject invalidation, or, if it is, that the legislative analyst's careful explanation of Prop. 26, coupled with Manduley's presumption that voters "duly consider and comprehend" the analyst's report, vitiates the plaintiffs' argument.

If I were a betting man, I'd bet against a single-subject challenge to Prop. 26. But by trade I'm a law professor, not a gambler--and I'm a professor who shares Justice Moreno's conviction that the single-subject jurisprudence has too often drifted from the original purpose of the single-subject rule.

So in my next column, Part Two in this series -- which will appear tomorrow on FindLaw -- I will offer some thoughts on how to make single-subject doctrine responsive to the risk of voter confusion, and what this implies for Prop. 26.