Election Law Commons^™

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 …

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.

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 …

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

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 …

A Wolf In Sheep's Clothing: Gaffney And The Improper Role Of Politics In The Districting Process, Robert A. Koch

University of Michigan Journal of Law Reform

The Supreme Court unanimously agrees that excessive partisan gerrymandering is unconstitutional. A plurality of the Court, however, would hold partisan gerrymandering claims to be nonjusticiable due to the lack of a judicially manageable standard. This Note synthesizes the opinions of a majority of the Court in Vieth v. Jubelirer on the precise harms of partisan gerrymandering and argues that excessive partisan gerrymandering unconstitutionally burdens the representational rights of individual voters. This Note proposes a judicially manageable standard to address that representational harm based on the Court's standard in Shaw v. Reno.

Refocusing On Race, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This paper, prepared for a symposium on voting rights in the George Washington Law Review, is a call to refocus attention on the role of race in politics. In recent years, many voting rights scholars have shifted their attention away from the plight of minority voters. Indeed, the issue of race came up in this symposium only obliquely, if at all, as part of a discussion of other issues. And this is more than a bit unusual, for race has been a driving force in the development of much of the law of democracy over the last several decades.

Of …

Johnson V. Degrandy, Henry L. Chambers, Jr.

Law Faculty Publications

512 U.S. 997 (1994), argued 4 OCT. 1993, decided 30 June 1994 by vote of 7 to 2 Souter for the Court, O'Connor concurring, Kennedy concurring in part and concurring in the judgment, Thomas and Scalia in dissent.

Wiley Austin Branton And The Voting Rights Struggle, Judith Kilpatrick

University of Arkansas at Little Rock Law Review

No abstract provided.

Resolving The Dilemma Of Minority Representation, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This article proposes that recent work in philosophy on the issue of interpersonal utility comparisons may be used to help resolve a significant problem in minority representation. The creation of majority-minority districts has had the unintended consequence of forcing minority voting rights advocates to choose between increasing the number of minority officeholders and increasing the number of Democrats. This dilemma is, in part, due to the strict application of the one person, one vote standard. But work on the issue of interpersonal utility comparisons tells us that the one person, one vote standard is not the objective standard it purports …

The False Promise Of One Person, One Vote, Grant M. Hayden

Michigan Law Review

It has now been four decades since the Supreme Court stepped into the political thicket with its groundbreaking series of reapportionment cases. Those cases rather quickly brought about radical changes in the structure of our national, state, and local governments and, in so doing, reshaped the political landscape of the country in many, mostly beneficial, ways. The reapportionment cases also signaled the beginning of a revolution in the way we view the rights associated with meaningful participation in a democratic society, a revolution that continues to this day. We now enjoy a right to vote that is much more comprehensive …

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 …

The Supreme Court's Misplaced Concern With Selective Fairness: Bush V. Gore And Three Analogies To Grading Dilemmas, William K.S. Wang

Journal of Legal Education

No abstract provided.

What Bush V. Gore Means For Elections In The 21st Century, Helen Norton

Publications

No abstract provided.

A Funny Thing Happened On The Way To The Multiple-Choice Exam: Or, The Schoolroom Lessons From Bush V. Gore, Marcella David

Journal of Legal Education

No abstract provided.

Race And The Right To Vote After Rice V. Cayetano, Ellen D. Katz

Articles

Last Term, the Supreme Court relied on Gomillion [v. Lightfoot] to hold that Hawaii, like Alabama before it, had segregated voters by race in violation of the Fifteenth Amendment. The state law at issue in Rice v. Cayetano provided that only "Hawaiians" could vote for the trustees of the state's Office of Hawaiian Affairs ("OHA"), a public agency that oversees programs designed to benefit the State's native people. Rice holds that restricting the OHA electorate to descendants of the 1778 inhabitants of the Hawaiian Islands embodied a racial classification that effectively "fenc[ed] out whole classes of ...ci tizens from decisionmaking …

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 …

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 …

Race, Redistricting And A Republican Poll Tax: The Supreme Court's Voting Rights Decisions Of The 1995-96 Term, Frank Parker

Touro Law Review

No abstract provided.

United States V. Hays: A Winnowing Of Standing To Sue In Racial Gerrymandering Claims, Jack Pritchard

Mercer Law Review

In United States v. Hays, the United States Supreme Court addressed the issue of whether individuals who reside outside racially gerrymandered districts have standing to sue on racial gerrymandering claims. In May 1992, Louisiana passed Act 42 of its Regular Session, which redrew its district boundaries to form two majority-minority districts -Districts 4 and 2. District 4 was a "Z-shaped creature" that zigzagged through twenty-eight parishes and five major cities, yet the Act was precleared by the United States Attorney General. The plaintiffs, Hays et al., were residents of Lincoln Parish, which was located in the newly formed District …

Heading Back To The Thicket, Richard C. Reuben

Faculty Publications

No abstract provided.

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 V …

The Holding Of Free And Fair Elections In Cambodia: The Achievement Of The United Nations' Impossible Mission, Nhan T. Vu

Michigan Journal of International Law

Part II of this paper will chart the historical background of the process that led up to the cease-fire and elections agreement. Part III will study various international instruments which guarantee the right to free and fair elections in order to determine the contours of the right as it exists today. In Part IV, this paper will look at the existing academic literature to give a more complete understanding of the requirements for a free and fair election. Part V of the paper will apply these standards to the elections in Cambodia and conclude that they were, in fact, free …

The Pale Impact Of Recent Case Law On The Ascendancy Of The Voting Rights Act, Frank N. Schellace

Touro Law Review

No abstract provided.

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. …

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

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 law …

Shaw V. Reno: On The Borderline, Emily Calhoun

Publications

No abstract provided.

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 …

"We Are The People": Alien Suffrage In German And American Perspective, Gerald L. Neuman

Michigan Journal of International Law

This article will explore the constitutional debate over alien suffrage in the FRG, both for its own interest and in order to compare it with understandings of alien suffrage in the United States. As the interdependence of national economies deepens and regional "common market" arrangements multiply, more nations (including the United States) may be called upon to rethink the question of alien suffrage. The thoroughness and the explicitness with which the German legal community has debated this issue has brought to the surface arguments and assumptions that remain latent in U.S. commentary on the political status of aliens. Thus, the …