Part Two in a Two-Part Series on What Should Happen to Same-Sex Marriage in California After Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

In the space below, I continue to analyze what will-and what should-happen to California's voter-adopted ban on same-sex marriage, Proposition 8, in the wake of the U.S. Supreme Court's ruling earlier this summer in Hollingsworth v. Perry.  Two weeks ago, in Part One of this two-part series, I argued that the request made on July 11 by the proponents of Proposition 8 to get the California Supreme Court to order County Clerks to stop granting same-sex marriage licenses-Clerks have been issuing same-sex licenses for about a month-was unlikely to be successful.  Today, after elaborating a bit more on this post-Perry litigation, I move beyond the judicial arena to the ballot box, where I think repeal of Proposition 8 by the California electorate is feasible.

A Recent Development:  The San Diego County Clerk Asks the California Supreme Court to Weigh In

Shortly after my last column was posted, the County Clerk for San Diego County filed a separate request in the California Supreme Court asking for an order declaring that Proposition 8 should continue to be enforced by County Clerks, and preventing the Governor, the Attorney General, and the State Registrar from trying to force the San Diego Clerk to issue same-sex marriage licenses.  The San Diego Clerk's arguments echoed those made to the California Supreme Court by the initiative's proponents themselves the week before.  As it did with the proponents' request, the court refused to grant the San Diego Clerk an immediate block on same-sex marriage license issuance, but set a briefing schedule so that the court could decide whether to fully address the merits of the dispute in the coming month(s).

I don't expect the California Justices to accept the San Diego County Clerk's invitation to wade into this dispute in depth, for many of the same reasons that I discussed in Part One in connection with the proponents' request:  (1) The California Supreme Court's review is discretionary; (2) The case turns largely on the best way to interpret a federal district court order, and state courts will usually refrain from getting into contested interpretations of federal court orders; (3) The federal court order, by its straightforward terms, applies broadly to the County Clerks in Los Angeles and Alameda, so that unless those two individuals challenge the federal court order, same-sex marriage licenses will continue to issue from those Counties (and thus in the State) in any event; and (4)  Even if the state law questions-about the independence of County Clerks from the Governor or State Registrar and the obligation to continue to enforce laws that have not yet been invalidated by appellate courts-are interesting and important, there will be better cases down the road in which to reach those issues.

And here's an additional reason why the San Diego Clerk's request will likely be rejected by the California Supremes:  unlike the Proposition 8 proponents, the San Diego Clerk (who is arguably subject to the federal court order) might have standing in federal court to seek a ruling-from that court itself-that he is not covered by the federal order and will not be held in federal contempt if he refuses to issue same-sex marriage licenses.  A federal court faced with such a such a case might, at that point, try to enlist the help of the California Supreme Court to answer the question whether County Clerks are subject to the "control or supervision" (the term used in the federal court order) of state-level officials.  But the California Supreme Court would seem well-advised to wait for such a request (if one ever materialized) before opining on these matters.

Moving from the Courtroom to the Ballot Box:  Repeal of a Measure No Longer Supported by the People

Based on the analysis offered above, I don't expect the issuance of same-sex marriage licenses in California to stop anytime soon.  And so, for practical purposes at least, California's ban on same-sex marriage will become a dead letter.  Is that where the Proposition 8 political-legal opera should end?  To my mind, the answer is no; I think Proposition 8's true final Act should be repeal at the ballot box.

If Proposition 8 is not, in practice, limiting gay marriage, why would repeal be necessary or helpful?  For starters, we must remember that a judicial invalidation of a law and an injunction against its enforcement aren't the same as getting rid of the law; the measure remains on the books, and conceivably could spring back to life if a different Governor or Attorney General tried to reopen the case and undo the federal court injunction by defending Proposition 8 on the merits (something Governors Schwarzenegger and Brown, and Attorneys General Brown and Harris, never did.)  Cases (like Perry) that were never actually contested on the merits between the appropriate plaintiffs and defendants are-because of the absence of a true adversarial clash in the courtroom resulting in a judgment-strong candidates for reopening, should a particular Governor or Attorney General want to do so.

But, someone might respond, the political climate in California is moving in the opposite direction-in favor of, not against, same-sex marriage.  So the likelihood of a new Governor or Attorney General trying to resurrect Proposition 8-especially after hundreds of thousands of same-sex couples in the state already get married-is very slim.  I think that's probably true.  But remember that Governors and Attorney Generals get elected based on many issues, and they may win office in spite of, rather than because of, their position on any one subject.  Moreover, after they assume office, they sometimes take actions that seem to go against the views of a majority of voters, as Schwarzenegger and Brown themselves did when they refused to defend Proposition 8 when the Perry lawsuit was filed in 2009, a time when the state's electorate may very well still have favored the measure.

But all that brings me to the second, and more important, reason to repeal Proposition 8:  It no longer reflects the views of Californians, and state law on fundamental questions like this ought to accord with the true beliefs of state voters.  Proposition 8 passed in 2008 by a 52-48 margin, and a recent LATimes opinion poll suggests that a similar measure today would be supported by only 38% of voters, with 56% favoring same-sex marriage equality-a huge change in just five years.  But the only poll with true credibility is the one at the ballot box itself, and so Californians should revisit Proposition 8 in an election the next year or so.

And having California's laws line up with California's values will matter to people outside California as well.  As is now clear, after the Supreme Court's actions earlier this summer, the struggle over same-sex marriage rights in the United States continues to be waged in many, if not most, of the 35 or so states that do not allow same-sex marriage.  Having California in the "yes" column on same-sex marriage as a result of an election, rather than as the product of the actions of a small number of persons (a Governor and Attorney General who declined to defend, and an unelected District Court judge who issued an injunction), is important for political purposes in other states and, ultimately, for constitutional purposes when the U.S. Supreme Court returns to same-sex marriage rights-as it will almost certainly have to-in the coming years.  In Perry and United States v. Windsor (the case involving the federal Defense of Marriage Act, also known as DOMA) a month ago, the Court was able to avoid the question whether there is a national constitutional right to same-sex marriage, but it will have to answer that question directly in the next decade or so.  And there is broad agreement that the Court is keenly aware of national consensuses and national trends when it decides the content and scope of national constitutional rights (whether or not such awareness ought to be relevant).  Having California (which alone houses about 12% of all Americans) join the ranks of the same-sex marriage states through an affirmative act of its electorate will maximize its clout in these national processes.

The Logistics of Repeal:  Getting a Repeal Measure on the Ballot

Many measures that (like a repeal of Proposition 8) stand a good chance of success before the voters are nonetheless never acted upon because of the cost (often about a few million dollars) and headache of gathering the signatures required to qualify an initiative for California's statewide ballot.  But signature-gathering isn't the only way to get a measure on the ballot in California; if 2/3 of each house of the state legislature votes to put a constitutional amendment on the ballot, the amendment is offered to the electorate.  For decades this route has seemed an unlikely one, because major ballot measures are often very polarizing along party lines, and neither political party has controlled 2/3 of each house of the legislature.  But today (and barring any very unusual events, for the next year at least) Democrats can be assured of occupying 2/3 of the seats of the California Assembly and Senate.  And there may very well be a number of Republican legislators who think that California voters should be given the chance to weigh in again on same-sex marriage, since the landscape has changed so much over the last half-decade.  So there seems to be a window for the California legislature to act, to let California voters speak once again on this most important of questions.  And even though some significant money may have to be spent in the ad campaign to get such a repeal enacted, I would expect-given the salience of this topic in California over the last few years and the movement reflected in recent opinion polls-the amount of money need not be that great, and in any event would be well-spent, given the alternative: months and perhaps years of technical wrangling in the state and federal courts, leading to an outcome that cannot easily to be said to derive from the California people themselves.

Cross posted from Justia's Verdict.

It was completely understandable, justifiable and even predictable that the Supreme Court would dispose of the challenge to California's voter-enacted ban on same-sex marriage, Proposition 8, by saying that the sponsors/proponents of the measure lacked legal "standing" to defend it in federal court, even when the State Governor and Attorney General failed to defend.  Given the rapidly changing legal landscape, any principled legal way to bypass until another day the big question of whether there is a national right to same-sex marriage was worth exploring, as I have argued, on this website and elsewhere, since 2010.

But while the standing route is attractive, it is also potentially hazardous.  In particular, the Court needed to steer clear of damaging the initiative device in general even as it denied standing to Proposition 8's sponsors in particular.  Although some folks disparage the initiative device, it is used in about 20 states that together contain almost 150 million Americans.   Unfortunately, Chief Justice Roberts's 5-4 majority opinion did not navigate this terrain particularly cautiously, and the integrity of direct democracy might end up being the victim.

The best argument (and it was made by Justice Kennedy's dissent) in favor of sponsor standing is that elected officials should not be able to effectively defeat initiatives by simply not defending the measures against federal court challenge. This is especially problematic because the initiative device is derived from a concern that elected officials sometimes do not act in ways that are faithful to the people's interests and desires. And while most initiatives are responses to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials represented by the initiative mechanism does not also carry over to officials like Governors and Attorneys General.

Yet granting sponsors the ability to represent the State raises its own problems.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

A majority of Justices felt they had to credit the latter arguments over the former, and so joined an opinion that could be read as suggesting that, no matter what a State's law says, under no circumstances can initiative sponsors ever step into the shoes of the State.  The problem, said the majority, was that initiative sponsors are not subject to control of the voters the way regular State officials are.  That may be true to some extent when sponsors are compared to some regular officials, but it not true categorically.  Moreover, the majority's reasoning, read broadly, could mean that nobody who isn't on the government payroll exercising full-time government power can ever defend initiatives in federal court.  And believers in the initiative often don't want to empower or create new bureaucracies.

The dissenters, by contrast, thought the first set of arguments should trump, and so would have empowered sponsors to defend all initiatives.  Yet the dissenters did not address the reality that some sponsors may be rogue.

But this framing of the issue ignores an appealing middle path: a state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see. In crafting a workable balance between the competing concerns presented by initiative-sponsor standing, federal courts should recognize the possibility of sponsor standing, but only when the grant of power to sponsors to defend is clearly provided for in state law, so that the voters have adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.  It would be sensible for such explicit deputization to address, among other things: (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4) what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways different from the litigation strategy favored by the sponsors.

In other words, the key is not whether sponsors are controlled by voters or other state authorities; it is whether the sponsors were ever selected and given a discrete power by the voters in the first place.  (That is the correct way to distinguish an initiative sponsor from an Attorney General.)

Proposition 8's sponsors would have failed this test, because nothing in California law in 2008 (when the measure was passed) told voters that by adopting the measure they were also picking the sponsors as their agents.  But, going forward, fans of the initiative device in California and elsewhere should be able to specifically deputize sponsors as backup representatives of the State by saying so in the text of specific initiatives (or through some similar device that puts voters on notice that adoption of the initiative creates agency in the sponsors), and thus should have the means to prevent elected officials from frustrating direct democracy simply by failing to defend measures that are challenged in federal court.  That this path wasn't staked out by Chief Justice Roberts's opinion is regrettable.

If the Justices in the same-sex marriage cases this year did, as a group, want to embrace a middle-of-the road outcome, they could and should have been more careful to avoid making the initiative device road kill.

Cross-posted from Justia's Verdict.

Now that the 2012 election is in the rear-view mirror and the 2016 election is still somewhat distant on the horizon, this is an appropriate time to return to the question of presidential election reform.  As I have written about many times (including here) on this and other websites, and in academic journals, one important and prominent reform effort, known as the National Popular Vote (NPV) Compact, seeks to move the country in the direction of making it ever more likely that the President who is elected is the candidate who obtains the most voter support nationwide.

Some Key Background of the NPV Concept

The essential idea (elaborated by me, my brother Akhil Amar and, independently also by Professor Robert Bennett over a decade ago) is to get various states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garners a plurality of popular votes in that state, but rather for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would generally mean that the winner of the Presidential contest would be the person who had won the largest number of votes from individual voters nationwide.  In that way, the plan would ensure that every voter-regardless of the state in which she lives-would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college-that is, states whose electoral college allotments collectively total 270 or more-ratify it.

To date, eight states (Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, Vermont and California) and the District of Columbia-comprising 132 electoral college votes altogether (almost half the needed 270 votes)-have adopted the plan.

Various policy arguments have been raised against the NPV idea, and in favor of the status quo.  More importantly for present purposes, however, in the past few years some analysts have raised constitutional objections to the NPV plan.  In the balance of this column and in a subsequent column, I will address some of these arguments.  Many of the constitutional criticisms that have been advanced relate to the compact aspect of the NPV plan, and focus on whether or not Congress would have to approve the coordinated interstate action before the current NPV plan being adopted were implemented.  I have touched on some of these criticisms before, and will return to others in a later writing.

A Challenge to the Ability of Any State, Whether Acting Alone or in Concert with Others, to Allocate Its Electors With an Eye to the National Electorate

But in the space below, I respond to a different line of constitutional challenge laid out by Willamette Law Professor Norman Williams, who wrote in a 2012 law review article that, putting aside the compact aspect of the NPV plan, it is unconstitutional for a state to pick its electors based on the national (as opposed to in-state) popularity of a candidate because such a decision by a state would violate Article II of the Constitution-the provision that tells each state to appoint its electors "in such manner as the legislature thereof may direct"-and the understanding of Article II embraced by the constitutional "framers."

Under Professor Williams' reading of the Constitution, even a state that were not coordinating with other states would be prevented, under Article II, from picking its electors with an eye towards the national vote tally.  (In an earlier law review article, to which I wrote an academic journal response, Professor Williams had suggested, completely unconvincingly to me, that a state that based its electoral college decision on the national electorate would be violating the Equal Protection Clause of the Fourteenth Amendment; this newer article relies instead on Article II and the expectations of the Framers in 1787.)

Professor Williams observes that his reading of Article II "may strike many as counterintuitive."  That may be true, but that is not necessarily fatal from a constitutional viewpoint.  To my mind, the problem with Professor Williams's line of argument is not that is it is not intuitive, but rather that it is not strong.

There are many parts and subparts of Professor Williams's claim, but his thesis can be distilled into two large pieces, each of which I treat in turn.

The Novelty of a State's Looking to the National Electorate

One thing Professor Williams points out is that, until now, no state has tried to pick its electors based upon national voter popularity.  That is true, but it is also largely beside the point.  Sometimes a device has never been tried because it is unconstitutional, but as even Chief Justice Roberts in the Obamacare ruling made clear, novelty is not itself a constitutional infirmity, because "there is a first time for everything."  Indeed, most of the aspects of the presidential election process we take for granted today would have been novel for much of America's history.  The rise of political parties; the near-automatic access that the major parties have to put their candidates on presidential ballots; the development of the "short-form" ballot - by which voters register preferences for actual Presidential candidates, rather than for individual presidential electors (the folks who make up the so-called electoral college); the requirement of many states that electors take pledges to support particular candidates, etc. were all unheard of for generations after the founding.  And yet no one thinks that any of these devices is unconstitutional simply because it was new when introduced.

Moreover, the idea that states would want to look to the national electorate at this point in history in particular is not hard to explain.  The 2000 election was the first modern presidential contest (after the country has internalized the one-person, one-vote ideal of the 1960s redistricting cases) in which the successful president candidate obtained fewer votes nationwide than his opponent.  Moreover, the country is far less divided today geographically (even as it remains sharply divided by party) than it was for most of the nation's history.  Businesses, families, and culture are much more dispersed throughout the United States.  People move around within the United States (and thus may want their vote to count equally wherever they move) much more today than in the Eighteenth, Nineteenth and early Twentieth centuries.  Political scientists have documented (and, indeed, quantified) much more carefully today than ever before how current presidential elections tend to favor a few "swing" states, such that non-swing states that are largely ignored in the presidential election have selfish reasons today for moving, either individually or by coordinated action, to a national popular vote scheme.  And so forth.  For these reasons, there is nothing constitutionally suspicious about new ideas and innovations in the voting realm generally, or about the timing or origins of this one idea in particular.

The Rejection of a Direct National Election in 1787, the Fear of Majoritarianism Embraced by the Framers, and the Problem of Who the Relevant Framers Are

The other big component of Professor Williams's argument revolves around the decision in the Philadelphia Convention, at which the Constitution (including Article II) was drafted, to reject a proposal by Connecticut delegate Gouverneur Morris that the President be elected directly by the citizens of the United States.  Because this proposal was voted down, and based on a criticism of the proposal by delegate Charles Pinckney on the ground that it would unduly favor the populous states, Professor Williams argues that the framers conceived of Article II as prohibiting any system that overly focuses on or empowers a national majority.

There are numerous problems with this argument, none of which Professor Williams adequately anticipates or addresses.  First, the evidence he advances for this "expectation" on the part of the "framers" is very thin.  He does not cite any specific discussion in the Philadelphia Convention of the limits on state legislatures to pick electors on whatever basis they choose, and analyzes no evidence from the ratification debates in the states that bears in a specific or even general way on the question.  The "framers" were not simply the men who sat in Philadelphia who had conversations to which no one else was privy; the framers who count more in constitutional interpretation are the folks who read and understood the words that emerged from Philadelphia and decided to make them the "law of the land."

And the words of Article II on their face give states broad latitude to pick any kind of electors they want.  Surely that would have been the ordinary meaning attached to the phrase "in such manner as the legislature thereof may direct."  Under any variant of Scalian textualism/originalism, these words-absent some evidence that persons outside Philadelphia would have interpreted them differently-foreclose Professor Williams's argument.  (To be sure, subsequent amendments to the Constitution, like the First and Fourteenth Amendments, might limit the kinds of criteria that states may take into account in picking electors-prohibiting, e.g., racial and religious discrimination in elector selection-but these limits do not come from Article II, the provision on which Professor Williams relies.)

The Multiple Explanations for, and Consequences of, the Rejection of a Direct National Election at the Founding

Moreover, even focusing on the Philadelphia Convention alone, Professor Williams himself cites to other reasons-besides a deep-seated rejection of national majoritarianism-that explain some delegates' aversions to Morris's plan.  Some of those in Philadelphia rejected direct election because the voters (absent modern communications, transportation, or the advent of national parties) would lack adequate information on which to base their votes.  Other delegates expressed the related fear that voters would, lacking adequate information, simply vote for local favorite-son candidates.  Yet others voiced their concern not in terms of populous versus small states, but rather in terms of Northern versus Southern states; direct election would have enabled the North, with more voters, to abolish slavery, which would have been unacceptable to Southern states and have lead them to reject constitutional ratification.

None of these three objections (each of which or all of which might account for the rejection of Morris's proposal) is relevant today in the context of the NPV plan:  Voters today all across the country have adequate information to pick a President; a state basing its Electoral College selection decisions on the nationwide electorate is not favoring local, native-son, candidates but instead is casting its gaze at a non-parochial level; and (thankfully) slavery is no longer a salient legal or political feature of America.

And even if Professor Williams could show (and he doesn't) that the biggest force shaping Article II was distrust of majoritarianism, that would still not provide much support his ultimate conclusion.  Article II's drafters did reject imposing a nationally majoritarian regime on the states, but that is a far cry from saying they foreclosed  such a regime if that is what states (acting individually or collectively) want to do.  There is a parallel here to Article III of the Constitution, which reflects a fear that lower federal courts could end up displacing state courts.  This fear didn't leave the framers to either require or foreclose the creation of lower federal courts, but instead to leave the matter up to Congress.  At most, Article II does not require or foreclose states from looking to the national electorate, but rather leaves the matter up to the states themselves.

What About Other Moves in the Past Centuries Towards Majoritarianism?

Yet another damning counterargument to Professor Williams's thesis is that if NPV is too majoritarian to survive under Article II, why aren't all the other developments in the evolution of modern presidential election mechanics that have occurred over the past two centuries also unconstitutional?  The rise of political parties, the placement of major party nominees on ballots bearing party designations, and the advent of the short-form ballot all moved the country towards a system that facilitates a national popular vote-winner becoming President.  Indeed, by making it less likely that no candidate will lack a majority of electoral college votes on the first ballot, these devices virtually eliminate the prospect of an election being thrown into the House of Representatives, which (because under Article II each state would have one vote in the House) was the most important nonmajoritarian electoral device the framers expected would come into play often.  As a result, all these innovations moved the country away from nonmajoritarianism and in the direction of majoritarianism much more than the NPV plan does, which could be seen as trying merely to narrow an already small window of nonmajoritarianism that remains.

And if Professor Williams's rejoinder to this is that closing the last open slit in a window is qualitatively different (and worse) than moving it from wide open to almost closed, I would note that the NPV idea doesn't close the window entirely, for three reasons:  First, absent coordination, a state's decision to base its electors on the nationwide vote doesn't come close to guaranteeing that the President will be the national vote winner, so an individual state's decision to use the national tally as a basis for picking its electors cannot be said to guarantee a nationally majoritarian outcome.  Second, a state that adopts an NPV stance can always change its mind in subsequent elections, so the system isn't inalterably majoritarian.  And third, since electors in the Electoral College are, strictly speaking, independent and can't be coerced into voting in any particular way-even the way they themselves have pledged-there is no plan, short of constitutional amendment, that would entirely close the window on the possibility of nonmajoritarianism.

Indeed, the essential implausibility of Professor Williams's argument can be seen simply by focusing on the independence of the electors.  Imagine that an elector today from some very closely divided state, under the way things currently work, thought that the nation would erupt into civil war if the person who won the nationwide vote tally were to be denied the presidency.  Couldn't that free-agent elector take into account, under Article II, that specter of war in deciding how to cast his electoral college vote?  And if so, then why can't a state (and its legislature and people) choose to select electors who are inclined to have that mindset?

All of this brings me to a passage in Professor Williams's article that may reflect part of the problem with his approach.  He says that each state's electors must be "accountable to the people of that state" and that the electors must "reflect directly or indirectly the choice of each state's own electorate."  The reality, however, is that NPV complies with this requirement.  The people of those states who have joined NPV have (through their legislature, which is accountable to them) made their choice to focus on national voter popularity when they select their electors.  No one is forcing them to do so; to the contrary, we are respecting their (and no one else's) desires by respecting their commitment to NPV.  (And the problem, in Professor Williams's eyes, cannot be that the legislatures are committing to NPV without the ratification of the voters of NPV states, because Professor Williams would not accept NPV any more readily if states joined it by initiative, rather than through their legislatures. And indeed, Article II's reference to "legislature" may foreclose the initiative device here.)

The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states.  The NPV states aren't delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.

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.

By Prof. Gabriel "Jack" Chin for ACSblog.

Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder. 

I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

The Court has made similar arguments with respect to the exclusionary rule, which requires the suppression of evidence seized in violation of the Constitution.  The Court noted that before the exclusionary rule, there was no other realistic alternative to judicial suppression. But now that there is judicial suppression, police agencies train their officers not to illegally search and seize.  Therefore, it is implied, perhaps it is time for the exclusionary rule to go, because the police themselves are training their officers to comply with the law.

The flaw in these arguments is that they do not account for the effects of the laws themselves.  If Section 5 works, the Court should expect it to deter improper electoral changes because they will not be precleared, and thus will never go into effect.  Similarly, an effective exclusionary rule should change police training and policy because police leaders have an interest in teaching officers to develop admissible, as opposed to inadmissible, evidence.  Only if legislators and police are invulnerable to incentives and oblivious to outcomes would they stubbornly adhere to tactics long after they are penalized under law.  

That measures designed to bring about change achieve that change says nothing about whether those measures are no longer necessary.  If burglaries decline for ten years after homeowners install good door and window locks, that does not imply that locks have become superfluous.  If speeds on a road decrease after a speed limit is set and posted, that does not imply that speeds will remain low even if the speed limit were removed.  If laws do not change behavior, there is little point in having them.  If laws do change behavior, that does not necessarily mean that the underlying motivations and values which led to the behavior no longer exist.

Accordingly, the question is not simply whether the law worked, or created incentives to which the lawbreakers responded.  One question is whether the law (or other social forces) has changed public attitudes or conditions on the ground to such a degree that the law is unnecessary.  Another is who gets to decide.     

Section 5’s validity might turn on a prediction about politics -- will jurisdictions which once discriminated leap at the first chance to discriminate again, or will they welcome minority voters with open arms?  The continued existence of racially polarized voting and the political utility to Republicans of suppressing the minority vote -- whether out of malice or simple recognition of how they are likely to cast their ballots -- precludes any confident conclusion that eliminating Section 5 would not revive the practices Section 5 was intended to suppress.  But even if the point is debatable, Congress is in a far better position than is the Court to determine facts, political realities and public attitudes relevant to a prediction about what would happen if Section 5 disappeared.   For this reason, and many others, the Court should defer to the political judgments of the political branches and leave Section 5 as it is.

Cross-posted from Justia's Verdict.

Amid all the drama surrounding the fiscal cliff negotiations of the last few weeks, there was an important, sad, and in some respects troubling development in the U.S. Senate.  Hawaii Democratic Senator Daniel K. Inouye passed away, and Hawaii Democratic Governor Neil Abercrombie appointed Democrat Brian Schatz to replace him.  Schatz was sworn in, and will serve in the Senate until Nov. 2014, when an election will be held to fill the remainder of Inouye’s six-year term, which expires in January 2017.

This development is important because all personnel changes in the Senate are significant, especially in this era in which voting margins in both Houses of Congress can be razor-thin.  (We will perhaps see another change in the Senate’s makeup if Senator John Kerry from Massachusetts leaves the Senate in the coming months to replace Hillary Clinton as Secretary of State.)  The development is sad simply because Senator Inouye, a war hero, was, by all accounts, a hard-working, honorable public servant.  And the development is troubling because the way he was replaced doesn’t seem to have been constitutionally proper.

Under Hawaii law, the Governor is empowered (indeed, directed) by the legislature to fill a U.S. Senate vacancy until an election of the people of the state is held.  So far, so good.  The Seventeenth Amendment of the Constitution provides, in crucial part:

“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

This language clearly tells state legislatures to prescribe the procedures for replacement elections and also authorizes (but does not require) state legislatures to empower their Governors to make temporary U.S. Senate appointments so that the vacancies are filled in the meantime.

But here’s the wrinkle:  the Hawaii statute (and those of a very small number of other states) limits the Governor’s choice to one of three names submitted by the political party with which the fallen Senator was affiliated, in this case the Democratic Party.  Hawaii law provides: “the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent.”  The Democratic Party in Hawaii submitted three names, one of which was Schatz’s, from which the Governor was instructed to choose.

From one perspective, it would seem to make sense to limit the Governor to picking someone who is from the same political party from which the fallen Senator came; death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the Senators.  Yet there is a very strong case to be made that the Seventeenth Amendment prevents the Hawaii legislature from substantively constraining the Governor’s choices in making a temporary appointment.

The Textual Argument Against the Hawaii Statute

Let us begin with some textual points.  The Seventeenth Amendment’s language differentiates between a state “legislature” and a state “executive” authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.”  This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy.  By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

If the drafters and ratifiers of the Amendment had expected the state legislature to have a significant role in the Governor’s execution of his appointment power with respect to temporary Senate appointments, the Amendment could very easily have included some phrase like “as the legislature has directed” or “subject to the legislature’s requirements” right after or before the clause referring to the Governor’s statutorily created power to make appointments.  Yet it does not.

It is true that the Amendment does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether.  But the power to decide whether the Governor should be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look at the Appointments Clause of the federal Constitution, in Article II.  That Clause gives Congress the power to “vest” appointment of inferior federal officers in the President alone, or in Cabinet members.  But Congress’ power to vest appointment authority in the President or a Cabinet Secretary does not give Congress the power to generate a list of three names from which the President or Secretary can be forced to choose.

Moreover, Congress should have more power in this regard than do state legislatures under the Seventeenth Amendment; Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.

The upshot, then, is that while state legislatures can deny Governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to authorize gubernatorial temporary appointments, they cannot unduly constrain Governors’ exercise of that power.

The Historical/Structural Case Against the Hawaii Approach

Disempowering the legislature and political parties to impose substantive constraints also makes a great deal of historical sense, given that the overall goal of the Seventeenth Amendment was to get state legislatures—and the party cronies who were thought to control state legislators—out of the business of deciding who should serve in the U.S. Senate.  Indeed, if the history of the Seventeenth Amendment reveals anything, it is the distrust and skepticism Progressives had concerning the influence of political parties in the legislative process.  Those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies.  This vision of party secrecy and backroom party deals cut by a few persons, who could not be counted on to represent the public’s interest, was often described in terms of party machines or party “bosses.”  As towering Senate historian George Haynes put it, “[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters.”

In 1911, Indiana Senator Beveridge, speaking on behalf of one of the many constitutional proposals of what became the Seventeenth Amendment, voiced this assessment of party influence and distortion:

Political parties . . . elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State . . . .  It must select a man of the party which elected the legislature . . . .  So it comes to pass that Senators actually have been . . . selected by the “party managers” . . . .  The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.

The part of Hawaii law that delegates to party chiefs the task of generating a short list seems to run quite counter to the historical anti-boss spirit of the direct election drive.

Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.

Some might also argue that governors today are essentially party bosses, whether we call them that or not.  But this misses the point that governors (unlike Party central committees) are elected—by the very people of the state in whom the Seventeenth Amendment vests ultimate power to select U.S. Senators. And governors—like U.S. Senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment’s textual preference for governors over state party officials and state legislators; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but malapportioned, legislatures in this context because governors are elected the exact same way in which the Seventeenth Amendment requires Senators to be picked. In short, my proffered reading of the Seventeenth Amendment’s text seeks to harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

The Interest in Promptly Filling Senate Vacancies (Which Is Even More Pressing Today) Argues Against Allowing a Legislature to Constrain the Governor’s Choices

The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate’s ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform.  It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why after the Seventeenth Amendment was enacted, almost every state has empowered its governor, on some terms or another, to make temporary appointments even before replacement elections can be promptly held.

But (as explained below) since governors under the terms of the Seventeenth Amendment can’t be forced, rather only empowered, to fill vacancies by temporary appointment, a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is the one most likely to result in the prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers that are given to them if they don’t like the constraints) could increase the likelihood that vacancies go unfilled during the period before the election is held.

Can Governors Be Forced to Make Senate Appointments?

There is another way in which the Hawaii statute likely impermissibly constrains the Governor, as well.  Not only does the statute purport to limit the Governor to three party-generated choices, but it also purports to require him to make an appointment, by its use of the word “shall.”

But this, too, seems problematic, under a careful reading of Section 2 of the Seventeenth Amendment. That provision says state legislatures “may empower” (emphasis added) governors to make temporary appointments, until the people fill the vacancies by election. “Empower” does not mean “require”; rather, it means “to create the power to do or not do something.”  The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment’s words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.

Thus, it is not at all clear that governors must exercise temporary appointment authority, even when that authority is validly created by the legislature.

The Senate Should Have Looked Into These Questions Regarding the Schatz Appointment

Some observers may argue that the federal courts, using the so-called “political question” doctrine, would be disinclined to interfere with the Senate’s decision whether or not to seat Mr. Schatz.  And perhaps this is true.  But that doesn’t mean that questions about the propriety of his appointment should have gone unexplored.

The Constitution makes each house, including the Senate, the “Judge of the . . . Qualifications of its own members.” So if a majority of Senators believe that the constitutional flaws in Hawaii’s statute that I have identified are unseverable from the part of the statute that authorizes the Governor to make temporary Senate appointments in the first place, then the Senate could have legitimately concluded that there was no valid “empower[ment]” of the Hawaii Governor under the current scheme, and could have rejected as unqualified (and therefore refused to seat) anybody the Governor appoints, including Mr. Schatz.

Under this—quite plausible—scenario, the vacancy from Hawaii would have remained unfilled until either a popular election had been held, or until the Hawaii legislature passed a new gubernatorial authorization that would be free of the impermissible restraints.

The Senate should have stepped up to its interpretive duties; alas, it does not appear to have done so, and that is unfortunate.  Happily, the Senate passed the fiscal cliff avoidance bill lopsidedly.  But if Senator Schatz’s vote had been crucial to the outcome, then a cloud surrounding his appointment could have ripened into major constitutional problems.

Cross-posted from Justia's Verdict.

With the Obama-Romney election nearly upon us, my column today updates readers on the status of various presidential election reform efforts (a topic about which I have written columns for this site in the past).

A number of initiatives that were undertaken over the last year fell apart.  The online third party effort, Americans Elect-a movement that strove to put a "nonpartisan" (or in reality, a bi-partisan) presidential/vice-presidential candidate slate, determined by citizens around the country who participate in an "online convention," on the ballot in all 50 states-fizzled.  So too did partisan efforts in Pennsylvania and Nebraska to change the way in which those two states will divvy up their blocks of electors in the so-called electoral college in the 2012 election.  And the coordinated National Popular Vote (NPV) movement about which I have written a great deal, both in academic literature and in online columns, has not picked up any new state participants since California got the plan nearly halfway to national success by adopting NPV legislation over a year ago.  (For those who are unfamiliar with the basic structure of the NPV plan, this column from 2011 should provide sufficient background.)

It is not surprising that very little election reform-or any other significant government business-gets accomplished in an election year; election years are known for legislative gridlock generally, and election reform often raises concerns about partisanship and election-result manipulation (as is true, for example, with some of state voter-ID laws that have been adopted in the last few years).

The NPV and the 2012 Election: The Election Will Surely Feature Many Ignored States, and Could Result in a Possible Inversion of 2000

But the 2012 presidential election cycle is far from irrelevant to the future of election reform.  Take the National Popular Vote movement.  The plan has two big selling points:  One is the idea that everyone's vote throughout the country should, as a formal matter, be counted equally; the other is that the way the electoral college currently operates (largely because of winner-take-all rules in most states) tends to make only "swing" or "battleground" states relevant to the two major candidates.  As a result, all the other states-and their particular needs-get very little attention during the campaign season.

This is a powerful critique of the current system in any election year, and it is especially illustrated by this year's election dynamics.  There are only roughly nine out of the 50 states where Romney and Obama have any real reason to spend time and make promises, leaving the rest of us more or less neglected by the person who will become President.  If this pattern (of the candidates' focusing on a small and/or shrinking number of battleground states) persists (and I should acknowledge that some think it might not, depending on demographics), then the incentive of the neglected states to try to tweak the present system should grow.

Perhaps even more important for the chances that the NPV coordinated-state movement will succeed is the specter that Governor Romney will, in 2012, win the national popular vote but lose in the electoral college.  A number of political analysts and pollsters say that this is quite possible (in the same way that, in 2000, George Bush (R) became President even though Al Gore (D) won more votes nationwide.)

Why might a Romney popular-vote-win/electoral-college-loss affect NPV's prospects?  Because up until now, all of the states that have adopted the NPV bill have been Blue states-states that are generally assumed to lean towards the Democratic, rather than the Republican, candidate for President.  And unless a Red state joins soon, it will become increasingly hard to debunk the (wrongheaded) fear that Red state folks have that the National Popular Vote bill is a Democratic scheme, rather than a democratic idea.

The reality is that, during this window in American history at least, a move towards a national popular vote would not benefit or hurt either party in particular.  It is true that a Democrat was stung by the conventional electoral college operation in 2000, but even in that year, things could just as easily have been the other way around (and indeed many analysts predicted before that election that they would be the other way around, with Bush winning the popular vote but losing the presidency.) And in 2004, President Bush won reelection by beating Democrat John Kerry by about 3 million votes nationwide, and yet if Kerry had won just over 60,000 more votes in Ohio away from Bush, Kerry would have prevailed under the current electoral college system.

So there is nothing inherently partisan about the modern national popular vote movement. Given the competitiveness of the two parties nationwide, and given the reality that if a national popular vote system were in place, both campaigns would build their strategies around it, there is no reason to expect that adoption of the NPV system would, if put into effect, benefit one party over the other.

But while some prominent Republicans (like Fred Thompson, a 2008 Republican Presidential candidate and former U.S. Senator; former Republican Governor Jim Edgar of Illinois; and the Republican-controlled state Senate in New York, all of whom support the NPV idea) understand all this, the compelling theoretical case that the electoral college could bite the Republican presidential candidate, just as it bit a Democrat in 2000 would be immensely buttressed by a real-world modern data point. For instance, if Romney were to suffer the same fate in 2012 that Gore did in 2000, that might be sufficient to put some Red states into the NPV column.

The Question of the Need for Congressional Approval of NPV State Coordination

If NPV does attract new states in 2013 and beyond, the question of whether Congressional approval is required before the plan goes into effect will take on greater salience.

The Constitution does require that Congress approve some interstate agreements/compacts before they go into effect, but the Court's case law is very underdeveloped in this area.  The most comprehensive analysis came in the late 1970s, in a case in which the Court held that Congressional approval was not required with respect to a multistate tax commission that made recommendations that various states could then consider adopting.  The Court there said that the two key factors in determining whether an agreement between two or more states requires Congressional approval are whether the agreement threatens (1) the supremacy of the federal government, or (2) the sovereignty of non-signatory states.  Because the tax commission at issue in the case before the Court did neither-and essentially allowed each state to accomplish no more than it could absent the agreement-no approval by Congress was required.

It could be argued, on one hand, that the coordinated NPV plan should not be subject to the Congressional approval requirement; under Article II of the Constitution, each state is free to allocate its electors however it chooses, and so states' making their allocations contingent on what other states are doing may not be objectionable, especially since the signatory states are not trying to exclude or in any way discriminate against the non-signatory states.  (It may be important in this regard that all states are welcome to join the NPV coordination, and that the national popular vote tally is based on voter preferences in all states, not just the ones that have embraced the plan.)

On the other hand, the NPV plan that states have been adopting does give signatory states the right to do something that they could not do absent the plan: enforce a right to prevent other signatory states from changing their allocation methods late in the election cycle.

Moreover, to the extent that the NPV plan is sold-and viewed-not just as a way to make everyone's vote in the nation equal (my preferred rationale), but also to enhance the attention paid to currently neglected states that are urged to join the plan for that selfish reason, the plan may begin to look like a campaign-attention power-grab by signatory states vis-à-vis the other, non-signatory states, implicating the Supreme Court's state concern about interstate federalism.

But the Supreme Court has not spoken much on these issues in over three decades, and its most recent important rulings were handed down by a Court that included none of the members of the current Court.  So the question whether the Court would find Congressional approval required for coordinated state action here is somewhat open.

Might One or More States Move to NPV Unilaterally?

Meanwhile, there is, at least in theory, the possibility that a state could consider allocating its electors to the national popular vote winner, rather than to the candidate who won the most votes in that state, regardless of whether other states are doing so.

I have speculated on this possibility in an earlier column, in which I asked whether a swing state (like Ohio) might be convinced to act selflessly in order to effectively bring about NPV.  At a recent election-reform conference I attended at M.I.T., I learned of some work that is being done by voting-method luminary Steve Brams (of N.Y.U.) and one of his colleagues, that might suggest that some states could have selfish reasons to adopt an NPV approach unilaterally, insofar as a move by a presently ignored state to allocate its electors to the national vote winner might increase that state's own campaign clout.  I hope to explore that possibility in greater detail in a future column, after next month's election.

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.

Cross-posted from Justia's Verdict.

The role of money in federal elections has never been more prominent than in this, the 2012 presidential, cycle.  It is thus quite natural that commentators these days would lavish attention on Citizens United v. Federal Election Commission, the 2010 blockbuster Supreme Court ruling saying that corporations and unions, just like individual persons, are entitled under the First Amendment to expend money to independently advocate in favor of or against candidates for elective office.

In this column, I look closely at a recent discussion of Citizens United provided by Jeffrey Toobin in The New Yorker. In the end, I conclude that while the story Toobin tells is elegant, fascinating and enlightening (as almost all of Toobin’s writing is), the analysis he offers does not fully work for me, or at least it requires a fair bit more explanation than he offers.

Background on the Citizens United Case

The Citizens United case arose under the federal McCain-Feingold campaign finance law, in which Congress tried to prohibit ads and other electioneering activities that advocate for or against any presidential candidate, that are paid for by corporate funds, and that run within 30 days of an election.  A nonprofit corporation called “Citizens United” had produced and readied for airing a cable TV video-on-demand documentary advocating against then-presidential-candidate Hillary Clinton shortly before a presidential primary.  The Federal Election Commission (FEC)—the federal agency charged with enforcement of federal election laws—ruled that the documentary movie amounted to “electioneering communication” and was thus covered under McCain-Feingold’s proscriptions.

The U.S. Court of Appeals for the D.C. Circuit agreed with the FEC, and the Citizens United organization went to the Supreme Court, arguing that the federal statute did not, and could not constitutionally, prohibit the airing of the documentary.  The case was first argued before the Supremes (with Republican loyalist and former Solicitor General Theodore Olson representing Citizens United) in March of 2009.  The federal government was represented by Deputy Solicitor General Malcolm Stewart.

More than three months after the argument, on June 29, the Justices, in an unusual move, decided not to resolve the case before their annual summer recess, but instead asked that the case be reargued the following Term (beginning in fall 2009), and that the parties focus this time on the larger questions of whether the differential treatment between corporations and individuals embodied in McCain-Feingold (and other campaign finance laws) was fundamentally inconsistent with the First Amendment, and whether past Court decisions upholding such differential treatment needed to be overruled.

The case was reargued in September 2009, and in early 2010 the Court issued its blockbuster 5-4 decision affording corporations the same First Amendment right as is enjoyed by individuals to make election-related express advocacy expenditures.

Toobin’s Take on Citizens United

Toobin, in his recent (May 21) New Yorker piece, “Money Unlimited,” provides a riveting backstory to the 2010 ruling.  A lawyer as well as a journalist, Toobin is a prominent translator of constitutional work product for lay audiences.  He has written books and dozens of articles discussing the Supreme Court, its cases, and its people.  Toobin generally does not advance or critique abstract legal theory or cutting-edge doctrinal approaches to interpreting and implementing the Constitution.  Instead, he seeks to make (and succeeds in making) legal concepts accessible to intelligent non-lawyers.  (It is because he is so successful and influential in this regard that what he writes deserves evaluation.)  In much of his work, Toobin emphasizes personal qualities and characteristics of the participants in legal episodes, and suggests how these qualities and characteristics can affect legal outcomes.  He also often explores the intellectual styles and modus operandi of decisionmakers in order to help readers make sense of the size and shape of the law.

It is thus not surprising that Toobin would tell the story of how Citizens United came to be by focusing on the personal strategic and leadership instincts of Chief Justice John Roberts, and on a dramatic (and what Toobin sees as a fundamentally game-changing) skirmish between the government’s lawyer in the first oral argument in the case, Malcolm Stewart, and the conservative Justices on the Court.

Toobin’s essay has many layers to it, but the basic suggestion he makes boils down to this:  The Citizens United case was on track to be resolved by the Court in a way that “might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law,” but that the first oral argument took the “case—and the law—in an entirely new direction,” and that, in particular, Mr. Stewart’s answer to one specific question was “an epic disaster” that “changed the case, and perhaps American history.”

Toobin’s strong implication (though he never quite says it this plainly) is that absent the transformational oral argument exchange between Mr. Stewart and the conservative Justices, the Court would likely have decided Citizens United simply by holding that the FEC and the D.C. Circuit were wrong in concluding that McCain-Feingold applied to the documentary in question; the case would thus have been resolved in terms of statutory interpretation (albeit statutory interpretation informed by the limits of the Constitution), rather than in terms of broad First Amendment first principles protecting corporations and other well-heeled interests.

But because of the fateful exchange, Toobin’s account goes, the five conservative Justices ended up reaching out and asking for new briefing and argument on the bigger constitutional issues that had theretofore been in the background.  According to Toobin, although the conservatives needed to go through the procedural hassle of waiting a year to make major constitutional change, the back-and-forth at Stewart’s oral argument set into motion the chain of events that led to a sweeping 2010 ruling in Citizens United, which in turn has opened the door to the huge infusion of money into the so-called “Super PACs” in this, the 2012, election.

What was this momentous Q & A in the first oral argument?  It was a series of queries about whether the ban on electioneering communications in McCain-Feingold could limit not just electronic media, but also books.

Justice Alito asked Stewart:  Could government limit a corporation from “providing [the same thing Citizens United provided in its documentary] in a book?  Would the Constitution permit the restriction of all those as well?”

Stewart’s response was straightforward:  “They [the limits on corporate-sponsored express advocacy pieces] could have been applied to additional media as well.”

Toobin argues that Stewart made a tactical blunder here.  According to Toobin, in the key part of his essay, “Stewart was wrong.  Congress could not ban a book.  McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life.  The influence of books operates in a completely different way.  Individuals have to make an affirmative choice to acquire and read a book.  Congress would have no reason, and no justification, to ban a book under the First Amendment.”

Assessing Toobin’s Account:  The Difficulty of His Proffered Distinction Between Books and Electronic Media

Before I explain my reaction to Toobin’s piece, let me disclose that I personally know both Toobin and Stewart.  I have met Toobin a few times, and I have exchanged a small number of emails with him.  I am a fan of his overall body of work, and I consider him a friendly acquaintance.  Mr. Stewart is someone I have known, worked with, and admired for over two decades.  He and I were classmates in law school and co-clerks in Justice Blackmun’s chambers, and I count him as a very close friend.  So while, in my discussion below, I try to analyze Toobin’s account as objectively as I possibly can, readers should be aware of potential blind spots on my part, as they think about the issues I discuss.

After digesting his essay, I remain somewhat unsatisfied by Toobin’s account in at least three ways.  Perhaps there are compelling answers to some or more of the questions I raise in these three respects, but I would need to hear them to be convinced.

First, the distinction Toobin draws between books containing advocacy (which he says cannot be regulated) and commercials that contain the same advocacy (which he suggests can be regulated) may not be easily workable in theory or in practice.

As to theory, are TV commercials really unavoidable (and for that reason regulable) in the way Toobin suggests?  Why can’t viewers change the channel or turn off the TV, just as they can decide not to purchase a book they see displayed in a bookstore window?  Putting aside truly “captive” audiences (e.g., passengers who use public transportation for their daily commute, etc.), why can’t we trust consumers of TV ads to self-screen just as we can trust consumers of books to do so?

And in practice, the line-drawing problems are formidable, perhaps even insurmountable.  If you can ban certain TV ads but not books, then what about TV ads promoting those books?  If you can ban TV ads, can you ban analogous newspaper ads?  If not, why not?  Newspaper ads are no more “avoidable” than are TV ads.  And if you can ban newspaper ads, what about pamphlets?  And if you can ban pamphlets but not books, when does a pamphlet become voluminous enough to become a book?  And what would we do with Internet ads and advocacy blogs that are financed by corporation money?

As a general matter, discriminating between different types of media has not been free from difficulty under First Amendment doctrine.  There are some older cases, most of which predate the information revolution, in which radio and TV are treated differently than print because the scarcity of airwaves historically has given government a freer hand. But that rationale has not easily been applied to cable entertainment (the context in which the Citizens United video was being offered).  More generally, airwave scarcity is not as tenable a justification for government regulation of electronic media as it once was.

The Second Problem with Toobin’s Analysis:  The Facts of the Citizens United Case Themselves

But let’s put aside the question whether, at some big-picture level, differentiation between books, on the one hand, and TV commercials, on the other, is permissible or required under the First Amendment.  There’s another serious problem here, too: On the facts of the Citizens United case, the answer that Toobin suggests that Stewart should have offered could easily have gotten him into more trouble than it might spare.

Why?  Because the Citizens United case did not involve a television commercial; it involved a feature-length 90-minute documentary movie that was available via on-demand cable!  Even if Toobin is onto something (and he may be) when he says there is a constitutionally significant difference between a 60-second TV spot “imposed” upon reluctant viewers and a book that would-be readers have to go buy or borrow in order to read, how is a 90-minute on-demand movie–that is, one that must be selected by viewers in order to be seen– any different than a book that, in Toobin’s own words, readers make an “affirmative choice to acquire and read”?  What I am saying here is that Stewart could not easily have proffered the answer Toobin suggests, because the very movie at issue in the case would have fallen on the wrong side of the constitutional line that Toobin wants to draw!

Had Stewart said, “Your Honors, books cannot be regulated because people can choose not to acquire and read them,” the Justices would have pounced on him and retorted, “Well, isn’t the same true of the 90-minute on-demand cable documentary the government seeks to regulate here?”  Perhaps Stewart could have done some fancy dancing about how Congress is entitled to draw broad categories that make general sense and then apply those categorical rules to particular instances in which the rationales for the categorical differentiation aren’t present, even in the First Amendment realm, and even where the constitutional claim challenges a particular statute’s application rather than the statute’s facial essence.  But the chances that such a tap dance would have succeeded seem exceedingly low.

In the end, then, Toobin’s gripe seems less with Stewart’s oral argument or with any of the answers Stewart gave there, but more with the government’s decision to apply McCain-Feingold in the context, not of a 60-second ad, but of a 90-minute on-demand cable movie, in the first place.

Perhaps there is a basis for criticism in the FEC’s decision to construe McCain-Feingold as applying to the documentary, and the DOJ’s strategic choice to support that decision (I express no view on those matters), but all of that was decided by the government when it decided to contest the lawsuit filed by Citizens United.  It was at that point that the die was cast, and if the conservative Justices were going to be angered by the aggressive stance taken by the government, that anger had nothing to do with oral argument, but instead with the initial decision by the government to regulate the movie in question.  And if that anger was going to cause the Court to “go big” by resolving the case in a dramatic, comprehensive First Amendment fashion, then the oral argument flashpoint Toobin highlights was neither here nor there.

My Third Reservation:  Where Is the Link Between Stewart’s Oral Argument and Justice Kennedy’s Ambition?

My third reservation about Toobin’s thesis is related to my second.  Toobin suggests, without fully explaining his reasoning, that the response Stewart gave about books is what caused the Court to call for reargument and widen the scope of the case.

Toobin recounts, seemingly based on some access to behind-the-scenes information—much of what he describes would not have been publicly accessible—that after Stewart’s argument, Chief Justice Roberts first circulated a draft opinion that would have resolved the case narrowly by simply deciding that the statute didn’t cover this film (which was Citizens United’s initial argument, on which they lost before the FEC), but that Justice Kennedy wrote a draft concurring opinion in which he indicated that the differential statutory treatment of corporations in McCain-Feingold itself violated the Constitution, and that older cases permitting discrimination against corporations should be overruled.

It was at that point, Toobin says, that Chief Justice Roberts understood that if the case were to be reargued, there would be five votes for a broad, constitutional invalidation of this major cog in the McCain-Feingold law.

So, Toobin says, Roberts got the Court to vote for reargument and, after that new argument took place, he assigned the majority opinion to Justice Kennedy, who then converted his concurrence draft into an opinion for a five-member Court majority.

But what’s missing from Toobin’s story—and this is the critical point—is any specific reason to believe that Kennedy and the other four Justices who ended up joining him were moved in any way by Stewart’s oral argument answer.

On the face of things, it seems unlikely that Stewart’s oral argument answer was a significant factor.  Remember that, according to Toobin’s own account, well after the first oral argument, Chief Justice Roberts drafted and circulated a narrow opinion resolving the case.  If Stewart’s oral argument had caused any of the conservative Justices to want to decide the case more ambitiously, wouldn’t that have been made known to the Chief Justice in the post-argument conference on which he based his decision about how to draft the opinion that he planned to circulate to garner a majority?  Why did the oral argument’s catalyst effect take weeks or months to manifest itself to the point where Chief Justice Roberts, a sharp cookie to be sure, could see it?

If Toobin has any inside information that might rebut the natural inference of non-causation based on the time lapse I describe, one might have thought that he’d be able to quote, or at least summarize, a source’s words to the effect that Stewart’s broad answer asserting regulatory powers over books is what sent Justice Kennedy or others over the cliff.  But Toobin makes no such suggestion.

Indeed, much of Toobin’s essay is devoted to explaining that Justice Kennedy has been constitutionally opposed to a great deal of campaign finance law—and the differential treatment of corporations under it—for two decades.  As Toobin puts the point, “All the Justices knew that Kennedy’s views were most extreme when it came to the First Amendment.”

This is likely true, but it undercuts, rather than supports, Toobin’s suggestion that Stewart’s argument answer had anything to do with Justice Kennedy’s (ultimately successful) gambit to use this case to remake First Amendment law.

More generally, as Toobin himself acknowledges, once Justice Alito replaced Justice O’Connor, it was clear as early as 2007 (in the Wisconsin Right to Life case) that “five Justices would soon declare the McCain-Feingold law unconstitutional.”  If astute observers (including Toobin) saw this three years before Citizens United was handed down, then why does Toobin think Stewart’s oral argument had any effect on anything?

And even if Stewart’s oral argument did make a difference in that litigation (which seems unlikely), wouldn’t it only be a matter of a short period of time before the Court found another case to use to do exactly what it did in Citizens United?  Failing to fend off the inevitable for a year or two is hardly changing the course of history.

Let me be clear:  I am not saying that oral argument never counts.  But it usually doesn’t, and in the rare case when it does, ordinarily the outside world can’t be sure of its effect.  I recognize that causation, or lack thereof, is impossible to prove in these kinds of instances.  But I think that if someone is asserting that oral argument changed the outcome or the scope of a particular case, and there is no offer of direct evidence of anything said by members of the Court or their staff in the days or weeks following the argument, notwithstanding obvious access to some “inside” sources, then he or she must do more than simply point out that the ultimate outcome surprised some early observers, and that there were some dramatic and excited moments at argument.

Here’s a good example:  Six months ago, the overwhelming majority of first-rate constitutional analysts expected that the Court would uphold Obamacare because the arguments under traditional modes of constitutional interpretation seem so one-sided.  And there is no real doubt that oral argument went poorly for Solicitor General Verrilli in March; there were clearly dramatic and difficult moments for him.  (I myself have written that he could, and should, have had much better answers to the predictable “slippery slope” questions thrown at him.)  But if the Court strikes down the mandate 5-4, we should not think that the result was caused by Verrilli’s subpar oral argument, and that if only he had been better in answering questions, the Court would then have come out the other way.  That explanation is possible, but the more likely explanation—again, assuming the Court does end up striking down Obamacare—is that five Justices had decided before argument that they didn’t think Congress had the power to create the mandate, and nothing at oral argument either way would have mattered to them.

Toobin may be correct in suggesting that Citizens United is not just a case, but rather a way of thinking about the world and the First Amendment (just as the term “PATRIOT Act” has symbolic import that goes beyond a single statute about counterterrorism).  As Toobin puts things, “[t]he Roberts Court . . . will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”

I can’t say if this is truly what Citizens United means, but if so, that legacy—much more than any personally interesting but to me largely speculative connection between an entertaining oral argument exchange and a decision by the Court to reshape the law—is the real human-interest story that is worth telling and worth hearing.  I look forward to future chapters in which Toobin conveys more of it.

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.