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After Shelby County V. Holder, Can Independent Commissions Take The Place Of Section 5 Of The Voting Rights Act?, Brittany C. Armour Jan 2017

After Shelby County V. Holder, Can Independent Commissions Take The Place Of Section 5 Of The Voting Rights Act?, Brittany C. Armour

Washington University Journal of Law & Policy

This Note traces the consequences of the Supreme Court’s decision in Shelby County v. Holder, which held unconstitutional the preclearance formula of the Voting Rights Act that required some states and counties to obtain federal authorization before changing voting procedures. Armour traces the history of the Voting Rights Act and the role independent commissions can play in ensuring that such facially neutral procedures do not have a disparate impact on minority communities. Armour advocates for independent commissions to take the place left empty by the Supreme Court’s rejection of the old preclearance formula suggesting that these commissions are ...


One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood Dec 2015

One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood

University of Michigan Journal of Law Reform

Skyrocketing rates of incarceration over the last three decades have had profound and lasting effects on the political power and engagement of local communities throughout the United States. Aggressive enforcement practices and mandatory sentencing laws have an impact beyond the individuals who are arrested, convicted, and incarcerated. These policies have wide-ranging and enduring ripple effects throughout the communities that are most heavily impacted by criminal laws, predominantly urban and minority neighborhoods. Criminal justice policies broadly impact everything from voter turnout and engagement, to serving on juries, participating in popular protests, census data, and the way officials draw legislative districts. The ...


Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz Jan 2012

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 ...


Strict In Theory, Loopy In Fact, Nathaniel Persily Jan 2006

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 ...


Cultural Compactness, Daniel R. Oritz Jan 2006

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 ...


This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman Jan 2006

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 ...


Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff Jan 2006

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 ...


Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault Jan 2006

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 ...


Self-Defeating Minimalism, Adam B. Cox Jan 2006

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 ...


From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz Jan 2006

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 ...


After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang Jan 2005

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 ...


After Georgia V. Ashcroft: The Primacy Of Proportionality, Felix B. Chang Jan 2005

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 ...


Vote Dilution And The Census Undercount: A State-By-State Remedy, Christopher M. Taylor Feb 1996

Vote Dilution And The Census Undercount: A State-By-State Remedy, Christopher M. Taylor

Michigan Law Review

This Note argues that groups seeking to correct underrepresentation caused by the differential undercount do not have standing to sue the Secretary of Commerce but that they can sue their state governments in an effort to force them to use the best population data available in the construction of congressional districts. Part I details the deeply rooted character of the differential undercount, describes statistical means that could have been employed to adjust the 1990 census, and demonstrates that the adjusted count surpasses the official census as an accurate representation of the true population. Part II examines recent litigation that has ...


Race And Place: Geographic And Transcendent Community In The Post-Shaw Era, Lisa A. Kelly Jan 1996

Race And Place: Geographic And Transcendent Community In The Post-Shaw Era, Lisa A. Kelly

Articles

Race and Place is a narrative article, both fictional and true, dedicated to exploring the dual realities of a geographic and transcendent community in the context of the Supreme Court's recent decisions in Shaw v. Reno and Miller v. Johnson. The Court has allowed and affirmed constitutional challenges to districts drawn to empower African-Americans "with nothing in common but the color of their skin." The Article draws upon history, literature, political science, and law to critique the Court's assumptions concerning the challenged districts and to demonstrate the existence of African-American communities of interest which are both geographically bounded ...


Drawing The Line On Incumbency Protection, Sally Dworak-Fisher Jan 1996

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 ...


Identifying The Harm In Racial Gerrymandering Claims, Samuel Issacharoff, Thomas C. Goldstein Jan 1996

Identifying The Harm In Racial Gerrymandering Claims, Samuel Issacharoff, Thomas C. Goldstein

Michigan Journal of Race and Law

This Article proceeds along two lines. First, it reviews the theories of harm set forth in the Justices' various opinions, i.e., the articulated risks to individual rights that may or may not be presented by racial gerrymandering. What is learned from this survey is that Shaw and its progeny serve different purposes for different members of the Court. Four members of the Shaw, Miller v. Johnson, and United States v. Hays majorities-Chief Justice Rehnquist, along with Justices Scalia, Kennedy, and Thomas- are far more concerned with "race" than "gerrymandering." In particular, they consider all race-based government classifications to be ...


Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald Jan 1996

Can Minority Voting Rights Survive Miller V. Johnson, Laughlin Mcdonald

Michigan Journal of Race and Law

Part I of this Article reviews the congressional redistricting process in Georgia, particularly the State's efforts to comply with the Voting Rights Act and avoid the dilution of minority voting strength. Part II describes the plaintiffs' constitutional challenge and the State's asserted defenses, or more accurately its lack of asserted defenses. Part III argues that the decision of the majority rests upon wholly false assumptions about the colorblindness of the political process and the harm caused by remedial redistricting. Part IV notes the expansion in Miller of the cause of action first recognized in Shaw v. Reno. Part ...


Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi Dec 1993

Expressive Harms, "Bizarre Districts," And Voting Rights: Evaluating Election-District Appearances After Shaw V. Reno, Richard H. Pildes, Richard G. Niemi

Michigan Law Review

This article attempts to define the constitutional principles that characterize Shaw and to suggest how those principles might be applied in a consistent, meaningful way. Part I, in which we argue that Shaw must be understood to rest on a distinctive conception of the kinds of harms against which the Constitution protects, is the theoretical heart of the article. We call these expressive harms, as opposed to more familiar, material harms. In Part II, we briefly survey the history of previous, largely unsuccessful, efforts in other legal contexts to give principled content to these kinds of harms in redistricting. Parts ...


Ugly: An Inquiry Into The Problem Of Racial Gerrymandering Under The Voting Rights Act, Daniel D. Polsby, Robert D. Popper Dec 1993

Ugly: An Inquiry Into The Problem Of Racial Gerrymandering Under The Voting Rights Act, Daniel D. Polsby, Robert D. Popper

Michigan Law Review

In the discussion that follows, we focus on the case of congressional districting rather than on districting in general. Although we proceed in this manner for the sake of clarity, it is also true that no single, all-purpose normative theory of electoral mechanics will cover every case of democratic representation, from county commissions to mosquito control districts to sovereign legislatures. We do not claim that one can generalize our argument to every sort of election to which the VRA might apply. Yet we think our argument does approximate a theory of general application.


Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, T. Alexander Aleinikoff, Samuel Isaacharoff Dec 1993

Race And Redistricting: Drawing Constitutional Lines After Shaw V. Reno, T. Alexander Aleinikoff, Samuel Isaacharoff

Michigan Law Review

Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realignment of electoral configurations that have given meaning to the voting rights reforms of the past two decades. In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court's latest confrontation with the ...


Proportional Representation By Race: The Constitutionality Of Benign Racial Redistricting, Michigan Law Review Jan 1976

Proportional Representation By Race: The Constitutionality Of Benign Racial Redistricting, Michigan Law Review

Michigan Law Review

Wilson raises two questions that are basic to the use of "benign" racial classifications in drawing legislative districts. First, is there a constitutional right to proportional representation and, second, if there is no such right, are there circumstances under which a scheme devised to provide proportional representation is constitutionally permissible. This Note will demonstrate that, while the Supreme Court recognizes the constitutional right of each individual to participate on an equal basis in the community's political process and to enjoy an undiluted vote, it denies any constitutional right of groups to proportional political representation. It will then show that ...