Law Commons^™

Toward A Law And Politics Of Racial Solidarity, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

The killings of George Floyd, Michael Brown, Trayvon Martin, and others have occurred under different factual circumstances, in different states, at the hands of both state and private actors, and have engendered different levels of outrage on the basis of their perceived egregiousness. Collectively and cumulatively, they have forced Americans to, once again, wrestle with the visible manifestation of racism and structural inequality. This confrontation is not simply a function of the inability to avert one’s eyes when faced with incontrovertible evidence of evident inhumanity and abject degradation, though it is in part that. After all, how to justify the …

Models, Race, And The Law, Moon Duchin, Douglas M. Spencer

Publications

Capitalizing on recent advances in algorithmic sampling, The Race-Blind Future of Voting Rights explores the implications of the long-standing conservative dream of certified race neutrality in redistricting. Computers seem promising because they are excellent at not taking race into account—but computers only do what you tell them to do, and the rest of the authors’ apparatus for measuring minority electoral opportunity failed every check of robustness and numerical stability that we applied. How many opportunity districts are there in the current Texas state House plan? Their methods can give any answer from thirty-four to fifty-one, depending on invisible settings. But …

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.

What The Marriage Equality Cases Tell Us About Voter Id, Ellen D. Katz

Articles

Two years ago, United States u. Windsor tossed out the Defense of Marriage Act ("DOMA"). Thereafter, proponents of marriage equality secured dozens of notable victories in the lower courts, a smattering of setbacks, and last June, the victory they sought in Obergefell v. Hodges. During this same period, opponents of electoral restrictions such as voter identification have seen far less sustained success. Decided the day before Windsor, Shelby County v. Holder scrapped a key provision of the Voting Rights Act ("VRA") while making clear that plaintiffs might still challenge disputed voting regulations under Section 2 of the VRA and the …

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

Race, Federalism, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

No abstract provided.

Still Fighting After All These Years: Minority Voting Rights 50 Years After The March On Washington, Deborah N. Archer

Articles & Chapters

No abstract provided.

Justice Ginsburg's Umbrella, Ellen D. Katz

Book Chapters

Near the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Dismissing Deterrence, Ellen D. Katz

Articles

The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

Lining Up: Ensuring Equal Access To Vote, Gilda R. Daniels

All Faculty Scholarship

This booklet ( a joint project of the Advancement Project and the Lawyer's Committee for Civil Rights Under Law) provides an extensive overview of restrictive voting laws, especially concerning minority voters. Daniels begins with a summary of voter obstructions and intimidation in the 2012 election, and then places that within the context of the history of voting and race in America.

Most recently, the Section 5 protections of the Voting Rights Act of 1965 were effectively removed by the Shelby County v. Holder Supreme Court decision. Daniels then explains what this means practically and legally for minority voters and how …

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Journal Articles

The Voting Rights Act of 1965 has been described as the "crown jewel" of the Civil Rights Movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the President Bush's Justice Department to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to explain how this …

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee

Publications

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz

Articles

In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election …

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin

Articles

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

Not Like The South? Regional Variation And Political Participation Through The Lens Of Section 2, Ellen D. Katz

Book Chapters

Congress voted last summer to reauthorize the expiring provisions of the Voting Rights Act. Among the reauthorized provisions is the Section 5 preclearance process, which requires "covered" jurisdictions to obtain federal approval before implementing changes to their voting laws. It is widely assumed that the reauthorization of Section 5 will survive constitutional scrutiny only if the record Congress amassed to support the statute documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. This paper takes issue with that assumption, arguing that precedent requiring such a record for new congressional legislation enforcing civil rights ought not apply …

Mission Accomplished?, Ellen D. Katz

Articles

My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz

Articles

Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, …

Documenting Discrimination In Voting: Judicial Findings Under Section 2 Of The Voting Rights Act Since 1982, Ellen D. Katz, Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, Anna Weisbrodt

Other Publications

The Voting Rights Initiative ("VRI") at the University of Michigan Law School was created during the winter of 2005 to help inform [...] the debates that led to this latest congressional reauthorization and the legal challenge to it that is certain to follow. A cooperative research venture involving 100 students working under faculty direction set out to produce a detailed portrait of litigation brought since 1982 under Section 2. This Report evaluates the results of that survey. The comprehensive data set may be found in a searchable form at http://www.votingreport.org or http://www.sitemaker.umich.edu/votingrights. The aim of this report and the accompanying …

From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz

Articles

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …

Documenting Discrimination In Voting: Judicial Findings Under Section 2 Of The Voting Rights Act Since 1982, Ellen D. Katz, Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, Anna Weisbrodt

Other Publications

This year marks the fortieth anniversary of one of the most remarkable and consequential pieces of congressional legislation ever enacted. The Voting Rights Act of 1965 ("the VRA") targeted massive disfranchisement of African-American citizens in numerous Southern states. It imposed measures drastic in scope and extraordinary in effect. The VRA eliminated the use of literacy tests and other "devices" that Southern jurisdictions had long employed to prevent black residents from registering and voting. The VRA imposed on these jurisdictions onerous obligations to prove to federal officials that proposed changes to their electoral system would not discriminate against minority voters. Resistance …

After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang

Faculty Articles and Other Publications

This Note argues that the majority in Ashcroft have left courts with an unadministerable standard-not so much for reasons that Justice Souter articulated in his dissent, but rather because the Court provided no guidance on navigating around the myriad of factors in the convoluted totality analyses. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. Hazeltine and Session v. Perry. Through other post-Ashcroft cases, Part II teases out the differences (i) between influence districts as injury and remedy and (ii) between a jurisdiction's Section 5 and Section 2 obligations--details closely related …