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Full-Text Articles in Law
Is Groton The Next Evenwel?, Paul H. Edelman
Is Groton The Next Evenwel?, Paul H. Edelman
Michigan Law Review Online
In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of "one person, one vote" (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior were known. That belief was mistaken. In this Essay I report on the Town of Groton, Connecticut, which uses registered voter data to apportion seats in its Representative Town Meeting and has done so since its incorporation in 1957. …
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Michigan Law Review
This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …
Justice Ginsburg's Umbrella, Ellen D. Katz
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.”
Enforcing The Fifteenth Amendment, Ellen D. Katz
Enforcing The Fifteenth Amendment, Ellen D. Katz
Book Chapters
This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, …
Dismissing Deterrence, Ellen D. Katz
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.
Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos
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 …
Election Law's Lochnerian Turn, Ellen D. Katz
Election Law's Lochnerian Turn, Ellen D. Katz
Articles
This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.
South Carolina's 'Evolutionary Process', Ellen D. Katz
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.” …
A Cure Worse Than The Disease?, Ellen D. Katz
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
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.
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
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.
On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz
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 …
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Articles
Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by …
Equal Voice By Half Measures, John Mark Hansen
Equal Voice By Half Measures, John Mark Hansen
Michigan Law Review First Impressions
In democratic theory, the ballot is the most perfect expression of the democratic commitment to the moral equality of persons. Every citizen, whether old or young, rich or poor, sophisticated or simple, enjoys the same endowment in an election: a single vote. The ballot not only gives citizens their voice in government, it also makes their voices equal. In practice, however, democracies have erected all sorts of impediments to the ideal of equal voice, such as restrictions on suffrage, legislative malapportionments, and discriminatory gerrymanders. Among the most egregious impediments, however, are surely the systems of indirect election purported to filter …
The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky
The Good, The Bad, And The Ugly: Three Proposals To Introduce The Nationwide Popular Vote In U.S. Presidential Elections, Alexander S. Belenky
Michigan Law Review First Impressions
The idea of reforming the Electoral College recurs each time a presidential election nears. Polls show that an overwhelming majority of respondents support abolishing the Electoral College in favor of direct popular election of the President. Yet, it is doubtful whether these polls really imply that such a move would be best for the country. Despite the seeming simplicity of direct popular presidential election, its introduction in the United States—a country in which the clear separation of powers between the states and the federal government has existed for more than two centuries—would have hidden drawbacks that the media and pollsters …
Reforming The Electorial College One State At A Time, Thomas W. Hiltachk
Reforming The Electorial College One State At A Time, Thomas W. Hiltachk
Michigan Law Review First Impressions
The genius of our United States Constitution is the delicate balance our Founding Fathers struck between empowering a national government and preserving the inherent sovereignty of individual states. Any proposed governmental reform that would interfere with that balance should be looked upon skeptically. Recent proposals to do away with the Electoral College in favor of a national popular vote for President deserve such careful examination. But that does not mean that reform is out of reach. We have only to look to the Constitution itself to find that the answer lies in the self-interest of each state. I am an …
An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji
An Unsafe Harbor: Recounts, Contests, And The Electoral College, Daniel P. Tokaji
Michigan Law Review First Impressions
Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election. This …
Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch
Awarding Presidential Electors By Congressional District: Wrong For California, Wrong For The Nation, Sam Hirsch
Michigan Law Review First Impressions
The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-takeall system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act …
Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun
Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun
Michigan Law Review First Impressions
The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …
Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark
Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark
Michigan Law Review First Impressions
The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these statebased reform options. Categorically rejecting all state-based reform is …
Reviving The Right To Vote, Ellen D. Katz
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 …
Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz
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
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 …
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
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 …
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Morgan Kousser's Noble Dream, Heather K. Gerken
Morgan Kousser's Noble Dream, Heather K. Gerken
Michigan Law Review
J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups - historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. Kousser has also used his historical skills …
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Articles
Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …
Lowering The Preclearance Hurdle Reno V. Bossier Parish School Board, 120 S. Ct. 866 (2000), Alaina C. Beverly
Lowering The Preclearance Hurdle Reno V. Bossier Parish School Board, 120 S. Ct. 866 (2000), Alaina C. Beverly
Michigan Journal of Race and Law
This Case Note examines a recent Supreme Court decision that collapses the purpose and effect prongs of Section 5, effectively lowering the barrier to preclearance for covered jurisdictions. In Reno v. Bossier Parish School Board II the Court determined that Section 5 disallows only voting plans that are enacted with a retrogressive purpose (i.e., with the purpose to "worsen" the position of minority voters). The Court held that Section 5 does not prohibit preclearance of a plan enacted with a discriminatory purpose but without a retrogressive effect. Evidence of a Section 2 violation alone will not be enough to prove …
Sense And Nonsense: Standing In The Racial Districting Cases As A Window On The Supreme Court's View Of The Right To Vote, Judith Reed
Michigan Journal of Race and Law
Congressional redistricting draws the lines within which battles for political power will be fought. It is no surprise, therefore, that the redistricting process has long been the subject of social debate and legal dispute. The Supreme Court has not been able to resolve this dispute, in part, because the Justices have conflicting interpretations of the right to vote. While some Justices view voting as an individual right, others maintain that voting is correctly perceived as group right. This lack of consensus regarding the definition of the right to vote has led to a confusing articulation of the harm implicated by …
Polarized Voting And The Political Process: The Transformation Of Voting Rights Jurisprudence, Samuel Issacharoff
Polarized Voting And The Political Process: The Transformation Of Voting Rights Jurisprudence, Samuel Issacharoff
Michigan Law Review
This article attempts to provide an analytic framework for the evolved voting rights law as it confronts the persistent effects of racial factionalism in the electoral arena. Insight into the corrosiveness of racially polarized voting and its frustration of minority electoral opportunity has organized and guided the new voting rights jurisprudence. This article will argue that the combination of process distortions from majority domination of electoral outcomes and substantive deprivation from minority exclusion defines this area of law and protects it against challenge from currently fashionable academic currents. The central insights gathered from the focus on polarized voting, I will …