Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
- Publication Type
Articles 1 - 24 of 24
Full-Text Articles in Law and Race
Eight Months Later, Ellen D. Katz
Eight Months Later, Ellen D. Katz
Reviews
Rick Hasen’s Election Meltdown provides a concise and scathing analysis of what ails the American electoral process. Rick identifies four “principal dangers”—namely, voter suppression, “pockets of incompetence” in election administration, “dirty tricks,” and “incendiary rhetoric” about stolen or rigged elections. He argues that these dangers have contributed to past dysfunctional elections and are sure to infect future ones. Election Meltdown closes with some proposals to temper the identified dangers so as to make voting less difficult and restore confidence in the electoral process.
Judicial Diversity After Shelby County V. Holder, William Roth
Judicial Diversity After Shelby County V. Holder, William Roth
Michigan Law Review First Impressions
In 2014, voters in ten of the fifteen states previously covered by the Voting Rights Act ("VRA") preclearance formula-including six of the nine states covered in their entirety-will go to the polls to elect or retain state supreme court justices. Yet despite the endemic underrepresentation of minorities on state benches and the judiciary's traditional role in fighting discrimination, scholars have seemingly paid little attention to how Shelby County v. Holder's suspension of the coverage formula in section 4(b) has left racial minorities vulnerable to retrogressive changes to judicial-election laws. The first election year following Shelby County thus provides a compelling …
Poll Workers, Election Administration, And The Problem Of Implicit Bias, Antony Page, Michael J. Pitts
Poll Workers, Election Administration, And The Problem Of Implicit Bias, Antony Page, Michael J. Pitts
Michigan Journal of Race and Law
Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law …
Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum
Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum
Michigan Journal of Race and Law
Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …
Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin
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 …
The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker
The Power Of Observation: The Role Of Federal Observers Under The Voting Rights Act, James Thomas Tucker
Michigan Journal of Race and Law
The Voting Rights Act of 1965 (VRA) is one of the most successful civil rights laws ever enacted. Following its passage, the promise of the Fifteenth Amendment has become a reality for millions of Americans. Black voters in the South register to vote without being subjected to discriminatory tests or devices. Minority citizens can cast ballots free of intimidation and violence. Barriers posed by English-only elections have been removed for many language minority voters. Voters are permitted to receive assistance from the person of their choice. Federal observers play an indispensable role in serving as the eyes and ears of …
The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles
Michigan Journal of Race and Law
This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …
This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman
This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman
Michigan Law Review First Impressions
After winning control of both houses of the legislature and the governorship, Texas Republicans eventually succeeded in redistricting Texas’s congressional seats in 2003, replacing a 2001 court-drawn plan. LULAC v. Perry reviewed a number of challenges to that second redistricting. The decision deals with a multiplicity of issues, including, most importantly, the standard for violations of Section 2 of the Voting Rights Act and the nature of tests for unconstitutional partisan gerrymandering. While there are some clear holdings in the case, several of them reflect different combinations of Justices in the majority and, since there are six different opinions, it …
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault
Michigan Law Review First Impressions
In League of United Latin American Citizens (“LULAC”) v. Perry, the Supreme Court, for the second time in two years, agonized over partisan gerrymandering. LULAC’s rejection of a Democratic challenge to the Texas legislature’s mid-decade pro-Republican congressional redistricting resembles the Court’s 2004 dismissal of a Democratic gerrymandering suit against Pennsylvania’s pro-Republican congressional redistricting plan in Vieth v. Jubelirer. As in Vieth, the Justices wrangled over justiciability, the substantive standard for assessing the constitutionality of partisan gerrymandering claims, and the interplay of justiciability and constitutionality. As in Vieth, the Court was highly fragmented: Vieth produced five separate opinions, while LULAC took …
Self-Defeating Minimalism, Adam B. Cox
Self-Defeating Minimalism, Adam B. Cox
Michigan Law Review First Impressions
Everyone wants a piece of Tom DeLay. The former majority leader is under investigation and indictment, and even the Supreme Court threatened last Term to undo one of his signal achievements. In 2003, DeLay orchestrated a highly unusual mid-decade revision of Texas’s congressional map. The revised map was a boon to Republicans, shifting the Texas congressional delegation from 15 Republicans and 17 Democrats to 21 Republicans and 11 Democrats. The map was attacked as an unconstitutional partisan gerrymander and a violation of the Voting Rights Act. When the Supreme Court agreed to hear those challenges in LULAC v. Perry, many …
Cultural Compactness, Daniel R. Oritz
Cultural Compactness, Daniel R. Oritz
Michigan Law Review First Impressions
The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC …
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly
Michigan Journal of Race and Law
This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …
Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff
Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff
Michigan Law Review First Impressions
League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far superior tests were offered …
Strict In Theory, Loopy In Fact, Nathaniel Persily
Strict In Theory, Loopy In Fact, Nathaniel Persily
Michigan Law Review First Impressions
Most Supreme Court-watchers find the decision in LULAC v. Perry notable for the ground it breaks concerning Section 2 of the Voting Rights Act and the ground it refuses to break on the topic of partisan gerrymandering. I tend to think the Court’s patchwork application of Section 2 to strike down a district on vote dilution grounds is not all that dramatic, nor is its resolution of the partisan gerrymandering claims all that surprising. The truly unprecedented development in the case for me was Justice Scalia’s vote to uphold what he considered a racial classification under the Equal Protection Clause, …
Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn
Felon Disenfrachisement Laws: Partisan Politics In The Legislatures, Jason Belmont Conn
Michigan Journal of Race and Law
This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.
After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang
After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang
Michigan Journal of Race and Law
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. In the face of this uncertainty, lower courts will rely increasingly on the proportionality standard of Johnson v. De Grandy, which marked the midpoint in the judicial shift from Justice Brennan's worldview to Justice O'Connor's world-view. Part I examines two cases after Ashcroft which represent different degrees of racial vote dilution: Shirt v. …
Resurrecting The White Primary, Ellen D. Katz
Resurrecting The White Primary, Ellen D. Katz
Articles
An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the …
Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett
Strategic Voting And African-Americans: True Vote, True Representation, True Power For The Black Community, Maxine Burkett
Michigan Journal of Race and Law
As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.
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 …
Ua Mau Ke Ea O Ka Aina I Ka Pono:Voting Rights And The Native Hawaiian Sovereignty Plebiscite, Troy M. Yoshino
Ua Mau Ke Ea O Ka Aina I Ka Pono:Voting Rights And The Native Hawaiian Sovereignty Plebiscite, Troy M. Yoshino
Michigan Journal of Race and Law
Using the Native Hawaiian Sovereignty Plebiscite to investigate the complex interplay between race, nationalism, and the special purpose district exception, this Note chronicles the development of relevant legal doctrines and the history of the Native Hawaiians' quest for self-government in an attempt to untangle those issues. In doing so, this Note concludes that the Native Hawaiian Sovereignty Plebiscite was an unconstitutional method of securing sovereign rights for Native Hawaiians, but that a Native Hawaiian claim to at least some form of self-government is justified. As a result, this Note searches for a method that will guarantee self-government as well as …
The Fallacy Of Neutrality: Diary Of An Election Observer, Jeanne M. Woods
The Fallacy Of Neutrality: Diary Of An Election Observer, Jeanne M. Woods
Michigan Journal of International Law
Neutrality is one of many conceptual fictions of liberal discourse. A legal fiction is "contrived by the law" to facilitate adjudication of issues. Such fictions may serve as symbols, to make abstract concepts tangible or, they may be myths designed to promote some normative principle or goal. The problem arises when these fictions cease to be recognized as inventions, or as "presumptions about reality," and are believed to have an independent existence in reality. Then, they "purport to provide us with an objective and impersonal criterion, but they do not." According to the philosopher Alasdair MacIntyre, a fiction is "a …
The Empitness Of Majority Rule, Luis Fuentes-Rohwer
The Empitness Of Majority Rule, Luis Fuentes-Rohwer
Michigan Journal of Race and Law
In this Note, the author steers away from the current substantive debates surrounding the Voting Rights Act, its various amendments, and the "correct" way of interpreting its intended benefits and constitutionally accepted mandates. Instead, indirectly joins the many "radical" voices advocating for a departure from the majoritarian stranglehold-the decision-making process where fifty percent plus one of the voting population carry the election. The author does so not by suggesting yet another mechanism by which representatives may be elected, but by critiquing the perceived underpinnings of our democratic system of government. The author does not profess to delineate a definitive interpretation …
Drawing The Line On Incumbency Protection, Sally Dworak-Fisher
Drawing The Line On Incumbency Protection, Sally Dworak-Fisher
Michigan Journal of Race and Law
In an effort to fill the void in scholarly debate and legal analysis, this Note evaluates incumbency protection as a redistricting principle and analyzes its treatment in various court opinions. After arguing that protecting incumbents is not a legitimate redistricting objective, this Note illustrates how the Supreme Court and lower federal courts have been reluctant to pass judgment on incumbency protection. This Note contrasts this "hands-off" approach to the strict scrutiny afforded claims of racial gerrymandering and argues that such an approach enables incumbents to manipulate the Voting Rights Act for their self-interest. Additionally, this Note argues that incumbents, a …
The Triumph Of Tokenism: The Voting Rights Act And The Theory Of Black Electoral Success, Lani Guinier
The Triumph Of Tokenism: The Voting Rights Act And The Theory Of Black Electoral Success, Lani Guinier
Michigan Law Review
In this article, my goal is to organize the divergent themes of black electoral success strategy within one conceptual framework in order to give the themes more cogency and attention. Having exposed the existence of a coherent theory, I then argue that the theory posits many of the correct goals but fails to provide a realistic mechanism for achieving them. The article proceeds in three Parts. In Part I, I develop the ideological and statutory roots of black electoral success theory. In Part II, I analyze the inadequacies of current voting rights litigation and its failure to realize the statute's …