Law Commons^™

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.

Civil Rights Ecosystems, Joanna C. Schwartz

Michigan Law Review

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil …

Government Misconduct And Convicting The Innocent: The Role Of Prosecutors, Police And Other Law Enforcement, Samuel R. Gross, Maurice J. Possley, Kaitlin Jackson Roll, Klara Huber Stephens

Other Publications

This is a report about the role of official misconduct in the conviction of innocent people. We discuss cases that are listed in the National Registry of Exonerations, an ongoing online archive that includes all known exonerations in the United States since 1989, 2,663 as of this writing. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019.

In general, we classify a case as an “exoneration” if a person who was convicted of a crime is officially and completely cleared based on new evidence of innocence.

The Report is …

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.

The Ohio Model For Combatting Debtors' Prisons, Jocelyn Rosnick, Mike Brickner

Michigan Journal of Race and Law

In 2013, the ACLU of Ohio released a report titled The Outskirts of Hope: How Ohio’s Debtors’ Prisons Are Ruining Lives and Costing Communities. The report exposed the blatantly unconstitutional practice in courts across Ohio of jailing people who were too poor to pay their court fines and fees, and along with our ongoing advocacy efforts, resulted in sweeping change across the state. This Essay looks at the destruction modern debtors’ prisons have on individuals, families, and communities and overviews the research, advocacy, and communications tools the ACLU of Ohio has used to successfully combat debtors’ prisons. The goal is …

Functionally Suspect: Reconceptualizing "Race" As A Suspect Classification, Lauren Sudeall Lucas

Michigan Journal of Race and Law

In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For …

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

Articles

This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …

A Nation Of Widening Opportunities: The Civil Rights Act At 50, Ellen D. Katz, Samuel R. Bagenstos

Books

The Civil Rights Act of 1964 was an extraordinary achievement of law, politics, and human rights. On the fiftieth anniversary of the Act's passage, it is appropriate to reflect on the successes and failures of the civil rights project reflected in the statute, as well as on its future directions. This volume represents an attempt to assess the Civil Rights Act's legacy.

On October 11, 2013, a diverse group of civil rights scholars met at the University of Michigan Law School in Ann Arbor to assess the interpretation, development, and administration of civil rights law in the five decades since …

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 Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

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 …

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.

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.” …

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.

"One Of The Dirty Secrets Of American Corrections": Retaliation, Surplus Power, And Whistleblowing Inmates, James E. Robertson

University of Michigan Journal of Law Reform

Retaliation is deeply engrained in the correctional office subculture; it may well be in the normative response when an inmate files a grievance, a statutory precondition for filing a civil rights action. This Article, the first to address comprehensively the sociological and constitutional aspects of retaliation, argues for protecting grievants through safeguards much like those accorded whistleblowers. Part I of the Article provides a socio-legal primer on correctional officer retaliation by addressing the frequency of retaliation, its causes, and its constitutional taxonomy. Part II describes the elements of a prima facie case of unconstitutional retaliation under § 1983. Part III …

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

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 …

Jail Strip-Search Cases: Patterns And Participants, Margo Schlanger

Articles

Among Marc Galanter’s many important insights is that understanding litigation requires understanding its participants. In his most-cited work, Why the “Haves” Come Out Ahead, Galanter pioneered a somersault in the typical approach to legal institutions and legal change: Most analyses of the legal system start at the rules end and work down through institutional facilities to see what effect the rules have on the parties. I would like to reverse that procedure and look through the other end of the telescope. Let’s think about the different kinds of parties and the effect these differences might have on the way the …

Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay

Articles

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons—closed institutions holding an ever-growing disempowered population—most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which …

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 …

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 …

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, …

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.

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 …

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 …

Civil Rights Injunctions Over Time: A Case Study Of Jail And Prison Court Orders, Margo Schlanger

Articles

Lawyers obtained the first federal court orders governing prison and jail conditions in the 1960s. This and other types of civil rights injunctive practice flourished in the 1970s and early 1980s. But a conventional wisdom has developed that such institutional reform litigation peaked long ago and is now moribund. This Article's longitudinal account of jail and prison court-order litigation establishes that, to the contrary, correctional court-order litigation did not decline in the late 1980s and early 1990s. Rather, there was essential continuity from the early 1980s until1996, when enactment of the Prison Litigation Reform Act (PLRA) reduced both the stock …

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 …

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 …