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Intro

Monday, September 03, 2012 4:04 PM

Logistics Ctools Assignments posted weekly Syllabus Don't hold her to it Things will be added Statutory law course Remember con law Teirs of scrutiny Equal protection clause Requirements Come to class Send e-mail if you're not going to be here. Come in with assumption you're going to participate You will be called on Starting next week, no brining laptops When assignments are posted- two names will be posted Those people are official note takers Posted on ctools Final exam Typical

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Right to Participate
Monday, August 20, 2012 2:41 PM

Tuesday, Sept. 4, pp. 16-30 Wednesday, Sept. 5, pp. 30-36, 41-54 Thursday, Sept. 6, pp. 54-68, 114-119
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Ch. 2: The Right to Participate Constitutional Text Constitution 14th ammendment - Section 2 Apportionment provision 17th ammendment Direct election of senators Note: Today we've flipped the framers contention b/c of reps jerrymandering, stae legislators now pick reps 15th-- ammendment No denying ranchise based on race -Republican form of government 19th ammendment Women can vote 24th amendment No poll tax 26th 18 year olds can vote Note that congress tried to change this but court overturned 23rd ammendment Dc voters kinda get to vote 12th ammendment Preisdent/ vice-preisdential election Article one section two and four If can vote for state house of reps can vote for congress (four) (two) time place and manner of hodling elections shall be prescribed by the state legislators (federal elections) But congress, may at any time, alter such regulation Note: These provisions will harldy be touched on Mostly we deal with section one of 14th ammendment Equal Protection Clause Framers had no intention of this provision doing this work
Get rid of privileiges and Immunities today Note: cosntiution doesn't give you the right to vote

Minor v. Happersett (1874, Waite)- not all citizens have right to vote - voting not a privilege or immunity of citizenship; not required by a republican form of goernemnt Why were suffragist disspoitned by 14th Word "male" introduced into constiution for the first time 14th ammendemtn Apportion seats in congress based on number of people But if you don't let 21 year old men vote, unless invovled in rebellion or crime, approtionement reduced by direct number of disenfranchsied peoples 3million more sourtherners b/c of enfranchsiemnt But then if not allowed to vote- they'd get more reprsentetation (the white soutehrn democrats) So section 2: You let the 4 million male slave population vote But if you don't let them vote (and we know you're not going to) So if you deny people

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So if you deny people Male inhabitants 21 years old Citizens of the united states You lose seats in congress Why male inhabitants So you can disenfranchise women all you want Or at least penalty only kicks in if disenfranchsing women happenign then Women's suffragist movemnet So wanted to be clear only talking about men. Repeals 3/5th clasue
Woman- citizen of missouri, is she a voter in that state, nowithstanding provision of the constiution and laws of the state which confine right to vote to men alone. Idea behind law: Women don't need to vote - women adequately represented by husbands and fathers Women lack the capacity - no freedome of will, like insane people Options for Virginia Minor if she wants to vote Go to Legislature and get them to change law But legislature all men And if you can't vote, who are they going to listen to. Pursue a Constituional Ammendment Sue on Constituional Grounds Says 14th ammendment offers this Privileges and Immunity of Citizenship Katz: one thing she could have done- could have gone to congress Section 5 of the 14th Pass a law under enformcent powers of 14th giving women the right to vote Some suffragist did this, but unsuccessful Went this first b/c of abolitionist experience finding courts not sympathetic F: Minor goes in to register, denied Then she gets husband to co-sign on law suit Note: Susan b anthony did vote then charged under Ku Klux Klan law Law makes it a penalty to vote if not entitled to Between Susan B Anthony's arrest and this decision: Slaughter house cases Gutted privileges and Immunities clause Dealt with whether governemtn could create a monopoly on slaughter houses Upheld because: did not deny anyone any privilgegs and immunity of citizen Right to slaughter not a privilege Right to economic freedom, pursuing vocation not a privilege and immunity of citizenship Privileges and immunities are _________ who knows Something about 'the slave race' and the war, not econoimic freedom Privileges and Immunity of citizenship Navigable water Interstate travel Habeaus corpus Bradwell v. Illionois Bravel wants to sit fo rthe bar in Illinois, not allowed b/c law saying women can't be attorney's Court: see slaughterhosue, privileges and immunities not this broad category of pursuing vocation Justice Bradley (dissenter from slaughter house): Mira can't be an attorney, women can't do this Repuganant Unfit for civil life So P and I cabined to very narrow class of cases

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So P and I cabined to very narrow class of cases Waite's reasosn why Minor Loses Minor's theory: Voting bar denies the a privilege and immunity of citizenship, the right ot vote Thus state law unconstiutional Is Virgina Minor a Citizen Yes! Common/natural law (idea of political community) makes them citizen, consotuion didn't do it Just Is the right to vote a privilege and immunity of citizens of the US? If right of women to vote is a privilege and immunity, they would have been doing it But lots of citizens weren't able to vote in 1789 The originalist claim No new rights created by 14th, additional layer of protection to rights that already existed At the founding, only NJ let owmen votes (they took it away) Kept admitting new states, that had disenfranchsied lots of people And never any problems under republican form of govenrment or anything else Structural argument Adoption of the 15th ammendment If Minor is right, all citizens have right to vote, why ratify 15th? 15th can't deny right of vote based on race Textual argument 14th amendment section 2 Penalty only for disencranchsing men If a privilege and immunity incldued right to vote, why does the cosntituion impsoe this penalty only for the disenfranchsiement of men State legislature has power to disenfranchise even men But penalty (lesser paporitonemnt) So you can do it, just penalty So if you can disenfranchsie men, then franchisemnt isn't a p and I This provision says explicilty that states can disenfranchise citizens So right to vote is not a P & I i Foreigners Citizenship not a condition to voting in some states Institutional capacity argument Talk to missouri Note: what arguments are missing here; what should Virginia's Minors Leaves out women lack capacity to vote argument His wife was a suffragist No Equal Protection Argument You'd win this one easy But back then Equal Protection is just about race/slavery/civil war See Slaughter House Note: one more word about originalist claim Did Virginia Minor not know that women weren't allowed to vote? Guys who wrote the 14th ammendment were right fuckign there, and they weren't thinking what viriginai minor was thinking Evolution Don't care what you were thinking when you said 'Privileges and Immunities' You were defining something that has evolved Rights of women have evolved since founding Married women could own property in own name Lots of things like this Minor: P and I captures these evolving things Women stand ready ow to accept privilieges and immunities not avialble at founding Framers used concepts broad enough to bring in other ideas over time

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Notes and Questions Richardson v. Ramirez (1974 Rehnquist)- convicted felons disenfranchised, uses section 2 (14th amendment- "other crimes", textual argument) F: Cali passes law sayign former felons can't vote Section 2 of the 14th Reduction in apportinment didn't kick in if disenfranchised people participating in 'other crimes' "other crimes" Section 1 can't possibly provide for what section 2 says isn't a problem Katz: there's a lot of history that has happens Harper, Lassiter But here- text on his side, 'other crimes Orgiingalist argument This was happening at time of framing',
Why does the constitutional challenge fail "particiaption in other crimes' = no decrease in disporotionment If states were prohbited from disenfrancshing former felosn, why isn't their delegation size being penalized Argument should have been made: Section two is about something else - rebellion, civil war Rehnquist repsonse: 'that's the revellion part' no evidence 'other crimes' relted to that sort of stuff Katz: if no section 2, how would this have been examined Strict scrutiny

Marshall's dissent That section wan't meant to limit the evolution of Equal Protection Clause KATZ: what changes with EPC Baker vs. Carr 1962 One person one vote doctrine Reads disporpotionate voting denying equal protection Get voting as fundemental right Section 2 is about one problem at one specific time But now that we've been finding these rights (this right finding project), Note: Rehnquist doesn't' make an originalist claim, or a structural claim Only goes with the Text here This continues to be the law on felon disenfranchsiment

Felony disenfranchisement American exceptionalism Europe - people think its crazy people currently in prision can't vote 5.85 million disenfrachised for former covnictions 4.6% of population 1 in every 13 african americans of voting age are disenfrachsied 4x greater rate than non-african americans Varies signifcantly by state In kentucky, flroirda, one other- 1 in 5 african americans disenfrachised as ex-felons Why do we do this Civil contract theory Corruption Vote for someone who is likely to be lax on criminals or some shit Katz: isvoting to change drug policy a corrupt vote Community values being shared Protect republicans Race discrimination?

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Notes and Questions (pg 30) Hunter v. Underwood (1985 Rehnquist) - discriminatory inent in disenfranchisning individuals of "any crime involving moral turpitude" - records show intended to disenfranchise blacks Does Rehnquist change his mind? Holding: Blatant discriminatory intent-> not okay F: Alabama adopted constitution in 1901 Sought to disenfranchise as many black people as possible Cam up with crimes more likely to be committed by black folk Discriminatory intent "we're here to entrench white supremacy" Katz: this is why its hard to show discrimiantory intent now, because these examples were so egregious Katz: why did this disnfrachisment happen in the south Pushing back agaisnt active participation by black people and white people agreeing with them These conventions help create the one party south Prior, the white voting block didn't exist, corss-racial coaltiions helped This was an effort by the democratic party to unify white people Hunter compared to Richardson Difference: Not california, here, alabama If you are people just thinking about excluding people from social contract, etc, that's okay (see Richardson) But if you say "entrenching white supremacy" -> unanimous court But Alabama could renact it the next day, just not say anything Katz: could Congress pass aa law prohibiting felon disenfrachinsement (pursuant to section 5 of the 14th or section 2of the 15th Argument they can't do this: City of Berme vs. Flores Needs to be congruent and proportional to the unconstiutional conduct (for section 5 and section 2) Problem: felon disenfranchsiment isn't unconsitutional Where is the cosntiutional violation? Need to find a practice on its face is constiutional but is getting close Most powerful constiutional violation: Criminal justice system filled with uncosnitouoanl racial basias And constiouion could get at those biases by prhobitiing felon disenfranchsiment Katz: this argument still hasn't gone anywhere But note, could pass this law just for federal elections Congress can make

Green v. Board of Elections (2d Cir 1967)


The Constituional Framework The Rise of Strict Scrutiny for Restrictions on Citizens' Eligibility to Vote Katz: what's up with Douglas Upholds literacy test Strikes down poll tax Note: Katz: this isn't the constoiuional framework today She'll talk about more soon

Lassiter v. Northhampton County Board of Elections (Douglas 1959) F: Lassiter refused to take literacy test, denied registration Test not facially discriminatory Is this consistent with 14th and 17th Equal protection claim 17th direct election claim Argument Literacy tied to voting

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Literacy tied to voting Legitimate state in terest Informed voters "some relation to intelligent use o fballot"
States have borad power to regulate elections Rational Basis test Goal must be rationally related to legitimate state interest Not looking for a close fit Katz: does this mean congress can't ban the literacy test No, Cognress does ban literacy test in voting rights act Why isn't this a race case? Davis v. Schness - > great discretion made clear device to make racial discrimiatnion easy But no such allegations here. Why not?

Harper v. Virginia State Board of Elections (Douglas 1966) What changes for Douglas: Distingusihed form Lassiter Connection with literacy test to intelligent use of the vote not here Katz: I don't buy that Voting is a fundamental right in a free and democratic society Note: 2 strands to equal prtoection clause Strict scrutiny for suspect classifcaitons Strict scrutiny for infirinign on fundamental rights Rigorous exacting scrutiny Poll taxes effect poor people Lines drawn on the basis of wealth, like race, creed, or color, is not germane to one's ability to particpate intelligently in the lecotrate process Note: said in later cases didn't care about poor people; this isn't the law anymore But here they're considering it i.e. maybe being poor is corresponding with race So both lines of equal proteciton strict scrutiny Suspect classifcaiton Fundamental right Lochner (Holmes dissent) Like Du Process, Equal Protection Clause is not shcakled ot the political theory of aparticual era Douglas is saying that the EPC not limited to racial categories, other cateogires as well Unlike Slaughterhosue - about slaves and civil war But: point of that is saying that legislatorues get to do what they want That's what holmes was saying So this is weird to say virignia can't choose anoth cateogry Black Dissent Originalism Long have wealth based determiantions This is enshrining a particular poltical theory That poor people should get to vote Rational basis review Justificatiosn for poll tax Make sure they care enough Raise funds Harlan dissent
Given tension between these two cases, why doesn't go with race? Avoid the requiremtn of intetnional discriminatory intent Broader holding

Why do these cases come out differently

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Why do these cases come out differently Level of scrutiny moves Katz: Doesn't think literacy tax differnet than poll tax- all race cases Court is coming up with a difference conception of political participation Why does standard of review change? Transformation in what Douglas and the court think about political participation Lassiter Instrumental view of the right to vote Looking for a good outcome States can shape electorate to get good outcomes Harper Outcome independent Voting about constituting self, buidling idnetiy Objective is not good policy, but rather inclusion Pluralistic view of political participation So Douglas doesn't' go with race to get to this new view of political particpiation Shaped by the sixties!
Kramer v. Union Free School District No. 15 (Warren 1969) F: Kramer lives at home while commuting into the city as a stockbroker Bonafide resident Really lives there Of age (31) Nonfelon i.e. a member of the core electorate New York section 2012 (state law) - otherwise eligible voters inelligle to vote for school board elections if 1) no kids in school, or 2) no taxable property owned or leased

Kramer: Restriction violates the 14th ammendment (equal protection clause) Strict Scrutiny emerges full scale Reynolds - the right to exercise the franchise in a free and unimapired manner is preserative of other basic civil and politcal rights, any allged infringement of the right of citizens to vote must be carefully and meticulously scrutinized Compelling interest Want to restrict vote in school board electiosn to those most interested Property tax payers Parents of students Court: no ruling if this is compelling b/c clearly not narrowly tailored enough "classification must be necessary" Narrowly tailored No - also disenfranchises: Senior citizens, othes livign with children, clergy, military perosnal, boarders and lodgers, parents with children Classficatiosn permit icnlusion of many people with remote and indirect interst, and exlcudes those who have distinct and direct interest in the school meeting decisions Katz: Karmer is interested because he's interested Our unemployed person renting is Key here: Kramer is in core electorate but excluded Bona fide resident Of age Nonfelon Statute struck down because it disenfracnhsied Kreamer as a member of the core elctorate with an interest in the otucome Katz: unclear exactly what Kramer's interest is, but Warren thinks this is important here (Katz seems to indicate not important otherwhere)

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important here (Katz seems to indicate not important otherwhere) Will revisit this problem Notion you can exclude members of school electorate from schools doesn't fly But maybe for utilities Framework Assume represenative instiutions acceptable = rational basis Based on assumption state gov't representas all people But in voting cases that assumption is what is challenged Note: the state body that Kramer could vote for is what passed this Warren: this doesn't mean we don't still suspect this So still replace the presumption of constijonality Stewart: c'mon dawg- > he was represented in the body that made this Katz: look how far we are from Lassiter Lassiter- > legislature can shape the electorate to be what it wants Literacy Here: Kramer has very tangential interest, but that interest is great enough that the state can't shape the electorate for school board elections as it sees fit Note: New York State doesn't have to have school board elecitons at all "once the franchsie is gratned to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Calsue of the 14th" - Harper v. Virginia Board of Elections But see Ball Diffence - this is traditoinal governemtn interest Stewart dissent
Katz: Core Electorate Components If you look at these, they don't clearly survive strict scrutiny Bona Fide Residency Just because you live soewhere, do you have the requisitie interest, that other people don't clearly have Citizenship

Notes and questions (pg 54) Katz: Politicak community Is not People who don't live there

Harman v. Forsenius (1965) Oregon v. Mitchell (1970) Breedlove v. Sutles (1937)- overturned by Harper Dunn v. Blumsetin (1972)- overturned durational residence requirment An approprirately defiend and uniform requirement of bona fide resident necessary to perseve the basic conception of political community Thus survivies close scrutiny Compelling interest to create community Katz: What is a polticial community, what does the court understand What it is not f: Need to be in state for 3 years and county for 3 months Interst Preventing voting fraud through coloniztion and inability to identifyign persons offering to vote Making sure that a voter has "in fact, become a member of the community and that as such, he has a common interest in all tmatters pertaining to its governemtn and is, therefore, more likley to exercise his right more intelligently Court: Better ways to prevent fraud than this (i.e. good interest, not narrow) Court rejects premises of second interest:Exercising voting rights intelligently, member of community (i.e. this is not a compelling interest) Allsuive, subejct ot abuse

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Allsuive, subejct ot abuse More natioanl outlook, or retaining viewpoint of origin, hta's okay basically Carrington v. Rash(1965)- categoraical bar on serviceman = not bona fide residencts f: Remove members of armed forces movign to texas from voting Interest: Bona fide residents Worried military people will have different points of view Worried about block voting Court: Yes, bona fide residents is compelling interest Problem: irrebutable presumption: can't make categorical bars voting Think differently not a compelling interest-this is what the court is protecting from Brown v. Chattanooga Board of Comissioners (ED Tenn 1989) Holt Civic Club v. City of Tuscaloosa (1978) F: People of Holt live outside corproate limits of Tuscaloosa But within 3 mile band of police jurisdiction Subject to police and sanitary reuglation But not vote in Tuscaloosa P: EPC violated by no vote despite subjection to munipal powers Kramer versus Plaintiffs here: Katz: here, p's have clearer interest and effect Police and shit Garbage and what not Probabably water too Court: does not violate EPC Line marked by Court's voting qualifcatiosn decisions coincides with the geogrpahic boundary of the governmental unit at issue Rational basis test: ("stripped of voting rights attire") Governemtn may legiimately restric right to vote of governemtn units to those within its boundaries People otuside geography always effected by municipal policies Can't give them all a right to vote Have to draw lines somewhere Brennan dissent: Here: direct regualtory authority, and that should be the geographical line Direct exercise of regualtory authority Katz: this is irrefutable if you operate with a particualr conception of what the right to vote is about If vote is about exercise of instrumental power They're regulating you, you get a say But Rehnquist's conception of what voting is Decision to live in Chevy Chase versus DC has ramifications less about outcome and more about community, opportunities for civic dialogue About meaning instead of power Shared understanding to common good It's a matter of choice: can't remain aloof from processes, and claim status of enfranchised Katz: it matters who lives in Holt and who lives outside the city limits So not about right to vote, no claim to right to vote, because not part of the community Stewart's concurrence Go to the state where you are fully represented The Struggle for Black Enfranchisement United States v. Alabama (M D Ala 1961) Aff'd US 1962

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Gomillion v. Lightfoot (Frankfurter 1960) F: Tuskegee Initial black populaiton 4:1 white After WWII african american residents are tryign to register 1954: Jess Guzman ran for scchool board Loses 600:400 White people pissed about 400 votes for black owman Realize difficulty administering literacy test because everyone here is all educated from tuskegee insitute 1957: Alabama legislature redraws boudanries of tuskegee - > removes all but 5 African American residents, but no white residents African Americans organize boycott Charles Gamillion files suit seeking delcaration its uncosnituioanl -> vioatlion of 14th and 15th State never offers reason for this Tremendous discretion for states to draw lines however they feel Court: Unanimous Factors Can't Deprive them of pre-existing right to vote Vast number of people i.e. see one person one vote Katz: shouldn't matter Evil effect / race Strange shape Katz: ansswer should be no regarding shpae thing; Katz: thinks 15th ammendment in play States have discretion to draw lines, gets rational basis review And when excluded no right to view States can create political communities in all sorts of ways Voting in community is a constiutuetive process not insturmental process But Gomillion distingusihed from Holt State has endess discretionto create communities Except cannot form communities based on race Racial classifcation doesn't just heigten review, trasnsforms into elevation of process-they're not just making administratie decision that says this is the kind of politcal community we want Can't do that along racial lines Race is not a permissible basis upon which to define a poltical community But Katz says this sisn't really what frankfurter was saying, he wanted to dissent in Baker v. Carr.
Colegrove v. Green f: State of illinois draws congessional plan Then does nothing for 50 years Populations explode in certain districts So some areas get much less representation per person then others

14th ammendment claim, republican form of govenremtn? Court: can't touch this; this is a political question, lines, what ahppens if we declare it unconsituional, illinois has no districts, we can't draw these lines Whatever wrong is suffered by the people of illinois, they should fix it or congress can fix it Lines are beyond judicial competence Judges have no way to decide where the boudnaries of cities, electoral distericts outhg tto be Katz: later, courts get into this business, but in Gomillion - Alabama thought they'd nail this
Colegrove versus : Gomillion Colegrove voters complaining about dillution rather than disenfranchisement Gomillion can pass a ballot, but not in Tuskegee This is a city he was a risdent in before Colegrove: lines are untouchable

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Colegrove: lines are untouchable Dillution versus disenfrachisment Action versus inaction Note: Colegrove overturned by Baker v. Carr Two years after Colegrove Was Gomillion key in overtunring colegrove Colegrove not clearly about race Gomillion about 15th amendment Frankfurter does not idenitfy 14th amendment problem Discrimination based on race denying right to vote Katz: wants to limit this to 15th so he can stick withColegrove and say courts can't draw up districts, except in race-voting cases

Whitaker, concurring 14th instead of 15th No one has right to vote in jurisdiction they don't live in But state of alabama can't do this because they're engaging in racial segregration (see Brown vs. Borad of Ed and Cooper v. Aaron. The Articulation of a Sliding Scale for Other Restrictions on a Citizen's Vote Burdick v. Takushi (White 1992) Kennedy Dissent

Kennedy dissent: says not applying strict scrutiny but clearly giving the prohibition on write-ins a hard look o Katz: Kennedy is saying this fails any level of review, but actually raising the level Compare poll tax vs. Tuesday voting Tuesday voting just doesnt seem like a constitutional issue the way a poll tax does o Takeaway: some circumstances invite skepticism (i.e. oneparty system) When the elections looks like its doing something like fixing the system/entrenchment/anti-competitive maybe that demands more scrutiny
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Crawford V. Marion County Election Bd (Stevens 2008) F: Argument Election Modernization Voter Fraud Safeguarding Voter Confidence

Burdens o Stevens 2 classes of people Those with ID or who could/should have ID (like people who just leave it at home) o Lifes vagaries happens o Not worried about these people who usually have ID Other group: elderly people born out of state, the poor, the homeless, religious (but really the religious are a whole different thing) o Theres a different/special burden on them P. 84: perform a unique balancing analysis Small number of voters who are specially burdened vs. states board interests o Souter concurrence Gives numbers p. 89 6-10% of Americans without ID

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43,000 Katz: Him and Stevens are talking past each other Souter has number of people without ID but still dont know whether they can get one or whether theyll actually be unable to vote because of the law Role of facial vs. as-applied o A facial challenge must fail where it has a legitimate reach for most people o Q: Why does Stevens find the evidence lacking as to that group of people? Burden is unclear and record doesnt tell us how many Q: What fact is Stevens missing? What does he need? Poor/homeless/elderly who cant vote because dont have ID and cant get one NEEDS somebody alleging a personal inability to vote Q: Is Stevens right? Would a better record have made the case come out a different way? o Compare to Harper (poll tax) Did Harper have $1.50? Was she able to get that money? Was the poll tax struck down only for those people who could not get that amount of money no matter what? It was a FACIAL attack she wants it off the books for everybody and she wins Stevens is dis-aggregating voters and this is different Stevens: There are a lot of people affected and for most of them I dont care (people who have ID/can have ID); and I dont have enough evidence about the other small group; and even so, I dont care about them because this is generally applied and for the most part not a problem so go find an as-applied challenge Harper was a facial challenge: even if you have $100 and willing to pay, still unconstitutional as applied to everybody For most of us its not a problem to have ID; only a small group of people affected (Harper is not a race case case) o Scalia: when you talk do balancing, its not about the individual case-by-case analysis its about collective burden Katz: analytically this is immensely different from Stevens Scalia thinks this is constitutional as applied to anybody Scalia: we never talked about these cases in an asapplied way; its always been about the collective burden o Compare Souter and Scalia Scalia: burdens are trivial Souter: there is a burden on everybody Both are looking at the collective burden o Compare to Stevens hes doing something else Disaggregates different burdens Unless I can say all of you are burdened, you all lose Q: Did the lawyers screw up? Who should the plaintiff be? What would Stevens do in the as-applied case? o Katz: once you find someone who doesnt have ID and start talking to them and helping them, chances are they can get an ID Katz: I think the as-applied challenge is completely fictitious Issue: making voting harder for a discrete class of people o Katz: Stevens opinion says its OK to make voting harder for a discrete class of people; thats fine as long as no personal inability to vote Katz: State shouldnt be in the business of making it harder for certain people to vote or at least not for these weak reasons

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these weak reasons o Katz: getting ID isnt just about the money, its about legal literacy You have to know how to work within the bureaucracy and legal system So now were requiring legal literacy and diligence (So maybe the distinction with Harper could be the money to state component of a poll tax and that would be sad) o Katz: The group of people who wont vote because of this law is bigger than those who would be unable to get ID/vote Steven says its OK to require diligence and hoopjumping Leaves open question are we disaggregating voters? How do you do burden balancing now? Bottom line: As-applied constitutional challenge isnt capturing the problem Katz: Scalia is right that this is a very weird jurisprudence to sustain Katz: as-applied challenge is very narrow
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Scalia Concurrence Souter Dissent Breyer Dissent Notes and Questions Purcell v. Gonzalez (2006)

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The Reapportionment Revolution


Wednesday, September 12, 2012 9:57 AM

Wednesday, 9/12: pp. 127-144, 147-156 Notes: Rachel Braver, Jennifer Bronson Thursday, 9/13: pp. 176-181, 187-194, 210-212 Notes: Erik Choisy, Allison Comizio
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The Political Thicket

History o Use to apportion Congress based on the census and states would do whatever they wanted o 1840: Act that tells states to draw districts which have to be compact, contiguous and as close to population as possible o 1920s: population shift form rural to urban o 1929: Congress eliminates compact, contiguous o 1930s: Mississippi gets rid of its district lines to turn 2 districts into one and Court says thats fine o State after state had districting plans, leading to massive malapportionment
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Colegrove v. Green (Frankfurter 1946)

o Colgrove: malapportionment is no problem o Frankfurter: we will not enter the political thicket This is beyond the courts ability to remedy Cant draw Illinoiss districts Let Congress or state fix this o Dissent: This is justiciable The remedies you offer arent really available People in charge of re-apportionment are the ones elected due to that apportionment (Lucas Colorado case apportionment via referendum that underweights urban votes to rural votes) o Curious because no entrenchment o By the time this comes before the Warren Court, they dont care because the individual right has crystallized
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Black Dissenting
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Black Dissenting Notes and Questions Baker v. Carr (Brennan 1962) Clark Concurring Stewart Concurring

Looming over Baker is school desegregation and experience of courts in that arena (Brown v. Board) o Lawyers know that they have to reassure the Court that the remedy is something more discrete than desegregation/integration Katz: This is the case that Warren says is the most important of his tenure Facts o TN hasnt reapportioned since 1901 despite massive population shifts Malapportioned: lots of people in one district get one representation and few people in another district also get one representative No redress at state level entrenchment District Court: no relief can be granted Political Question o P. 134: facts/checklist of political question o Why does Brennan say malapportionment is NOT a political question? Not a separation of powers issues About states vs. federal courts, not co-equal branches No embarrassment aboard No policy commitment for which there are no manageable standards Guaranty Clause: o One argument that this is a guaranty clause case and thats not justiciable (Luther) o Court response: we dont have to go there EPC which weve been litigating for a long time We have workable standards We are open for business o Katz: Is this the right outcome? o Not articulating a remedy yet; were just open to talk about this problem Clark concurrence: this is irrational o Katz: No, there are reasons to keep it this way; stability Claim: Nobody has been denied the right to vote the claim is dilution of your vote o Frankfurter: we dont know what vote should be worth Sees 1person/1vote but thats just an idea so debasement argument is circular because theres no set value to a vote Geography vs. population and EPC doesnt mandate one over the other
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Frankfurter Dissenting Frankfurter is clearly right about all of this, Katz will asks us to defend what the Court does in Baker and Reynolds and the cases since Understand that these lines of cases are revolutionary The one person one vote conept seems obvious to us, but it was a big deal Idea first articulated in Reynolds But the idea is hanging over Baker
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But the idea is hanging over Baker Echos Withaker dissent in Gomillion - Circularity Argument This was a 15th case and not a 14th But no one was denied any right to vote, just dilution This was about how much each vote should count, but that's political theory Judges aren't political theorist, no ability to choose amongst them Equal Protection Clause doesn't empower judges to choose one sort of political theory Constitution doesn't bar this type apportionment State can chose how to do it Arguments raised against Frankfurter (in Class): Someone had to do it - because the legislatures benefited from entrenchment b/c of this apportionment scheme Equal Protection Clause To effectuate the mandate of equality everyone agrees lives int eh Equal Protection Clause - need to intervene on apportionment Because no equality if this is what our democracy looks like Courts Arguments addressing Frankfurter EPC does some work - we make stuff up under it So We're using it now Even though the framers of the 14th clearly didn't think it was about this at all This is the first movement that leads to Harper and Kramer Saying EPC mandates better apportionment Katz: Hypo - what if Brennan thought minorities needed to be protected via Proportional Representation Would it be strange fro the court to say the Constitution mandates Proportional Representation Would that be any analytical difference with what the court does in Reynolds with one-person, one-vote Remember Justice Altio's confirmation Job application to justice department said he was inspired to go to law school b/c of overreaches of warren court in Criminal procedure Apportionment Biden: Judge Alito's observation on the reapportionment cases increases odds of a filibuster One-Person, One-Vote concept more important than abortion Why is the Federal Senate okay Political History and compromise Compromise embedded in constitution Should Alito have been given more slack? Katz doesn't think he really wants to overturn one-person, one-vote Probably thinks now that it's done shouldn't be changed Katz thinks part of the outrage against Alito, isthat its one thing to say that the apportionment cases are a tough sell as a matter of constitutional interpretation, it's another thing to say you wanted to be a lawyer because of this move You're the sort of person who thinks this move was ill advised So on similar issues, I'll be cutting the other way Gerrymandering not unconstitutional- even though carving up district so you'll continue to be reelected And yet entrenchment Problem: can't figure out what rule should apply here Also legacy of this being Judicial Activism
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Also legacy of this being Judicial Activism Overview: if you're not aggravated about this case, at least understand why someone concerned about the courts making up would have issues with this case. Looked into the EPC and found voting Then they keep going on that Not saying Voting must mean something, or that entrenchment requires them to do it Harlan Dissent One-Person, one-Vote Jurisprudence "one-person, one-vote" What does it mean Population Number of voters? Often very different numbers (number of children, non-citizens, etc) Generally go with general population Sometimes use voting age popultion Sometimes citizen voting age population

Reynolds v. Sims (Warren 1964) Decision leaves virtually all electoral districts in the country unconstiutional One person, one vote Harlan dissenting

Baker v. Carr and Reynolds are revolutionary. Baker opens the door to federal claims of malaportionment, but one person one vote not articulated until Reynolds. The school integration cases were in the pipeline and the court wanted a more workable principle here. Left 90% of the congressional districts unconstitutional and all state districts. Was this a good idea? Frankfurter says no one was denied the right to vote here. This is just vote debasement/dilution. No standard of what a vote should normatively be worth, and this is asking us to pick a political theory of representation, which he thinks isnt the role of the judiciary. The EP clause doesnt give a way to choose a theory. This is rational, stable, achieves balance between geographic interests. Frankfurter says that the dilution argument is circular. The other side: Theres not legislative or executive remedy here because of entrenchment, so have to take extraordinary measures in order to protect constitutional rights. Someone has to step in. How can we trust the states to give people the equal protection of the laws if their vote doesnt count as much? They wont be protected. Without one person one vote, the original intent of the EP clause cannot be carried out/cant achieve equality. Majority instead says that under EP theyve made stuff up and theyre going to do it again. This wasnt the intent of those who passed EP, but this is the first move toward the modern era. They dont talk about entrenchment or say voting has to have weight, but say EP clause, through constitutional interpretation, mandates this move. Concern that one person one vote doesnt give enough power to minorities, could say that dont have districts at all and everybody gets on the ballot and you get seats based on the percentage of the vote you get. Ensures better representation of minority interests in the
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percentage of the vote you get. Ensures better representation of minority interests in the way other countries do. Can the S Ct say that the constitution says this and demands a change? Is that different than what the court did, analytically, in Reynolds? Both were made up. Is that ok?

Now that its done, cant displace it (where Rehnquist came down), which is why people got upset with Alito saying it was an overreach of the Court that prompted him to go to law school. Difference between saying it was wrong then and its wrong now so should be overturned. What substantive rule to use to get at entrenchment? There isnt really one. Also, maybe more cautious because of judicial activism of moving to one person one vote. Districts were roughly equal when made and have changed because of inertia on the part of legislatures, so potentially could argue that theres a historical basis for equality of votes. (Prof doubts they were worried about it at the time) If we dont like the rules of political participation, change the rules through the political process. Baker leads to the other cases weve read because this is where they see voting in the EP clause. One person one vote gets applied relentlessly. What does it mean? One person based on population or number of voters? General rule is to go with raw population. For Congressional districts, cannot move at all from equality based on population (Karcher v. Daggett). In PA they strike down reapportionment because of a deviation of 19 people. For state districts, theyre allowed to have 10% wiggle room. This leads to gerrymandering.
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Karcher v. Daggett (Brennan 1983) How far can you move from 100% equality If it's a congressional district, almost none at all Penn case overturned because of 19 person deviation State districts get more wiggle room: 10% deviation Most populated district can have 10% more population than the least populated This leads to shennagins - see Georgia case F: New Jersey redistricting Difference between most and least populated district less than 1%, or 3, 674 Had some proposals with smaller differences NJ wants to say per se good-faith effort to achieve population equality because deviation so small Court: The census isn't perfect, don't really know how many people live here And american people restless Court: Violates EPC Katz: only person crazier than Brennan is the Plaintiff What is going on here? Republicans Fighting the political Gerrymander This plan maximizes Democratic results

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This plan maximizes Democratic results There's another plan that wouldn't be as good for Dems So the Repubs are using this as their only option to prevent it the Dem plan There was some hope when 1person, 1vote came about it could be used to stop Gerrymandering Brennan: this is no good, not because there's another plan they might have chosen with a smaller deviation Lots of reasons to choose one plan over the other: Making districts compact Respecting municipal boundaries Preserving the cores of prior districts Avoiding contests between incumbent Reps Can deviate a little more if you're trying to avoid Reasons for states to keep senior reps - they have committee chairmanships and things Katz: we'll read later cases where the court says that We have traditional districting pricniples Including protecting incumbents They cite Karcher But this is not what Karcher says Karcher says avoiding contests between incumbents, not protecting incumbents Katz: Idea of 10% for State Districts was designed to give states more room to experiment with other voting procedures and things Katz: maybe we should be talking about what sorts of representation we want What is the one person, one vote doctrine trying to do? Katz thinks what the court is doing is silly, formal and mechanical; and to what end? Basing it on population instead of voters is to go to the idea that the Reps stand for everyone in the district, not just voters But places with prisons, or large non-citizen populations lead to some voters getting more representation

White Dissenting One Person, One Vote invites those who have lost in the political arena to fight their battles in the federal courts Here: no one cares about one person, one vote

Local Governance As we look into local cases we see one person, one vote applied to certain government structures and not others Lots of weird things Special Utility Districts See Office of Hawiian Affiars Only Native Hawiaans can vote Violated 14th ammendment
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Violated 14th ammendment Court is looking at powers of these local entities Why apply less vigoursly? Locals can go to the state and have them reorganize it Cases informed by the ability of people to do it When does one perosn one vote apply Texas Commissioners Court Exercising a mix of administrative and executive fucntions, and some legislative fucnitons Sufficeint to say 1p1v applies NY: 1 Borough 1 Vote Struck down, needs to be 1 Perosn 1 Vote Does not apply State judicial elections Judges don't represent us (Wells v. Edwards) they serve Elected represetnatives do what electorate want, Judges don't Katz: why are we voting for them if they're not doing what we want Katz: shouldn't be electing judges anyway Salt Rive District in Arizona Ball v. James (stewart 1981) F: Salt River District Water and Electric power in Pheonix Sells power to 100's of thousands Exempt from state and local taxes Can issue tax exempt debt Exempt from state oversight Because overviewed by voters Sets electric rates calibrated to produce a surplus Can only vote for managmetn if you're a property owner Court: Not bound by 1p1v Are we applying strict scrutiny? No Stripped of it's voting rights attire Something that looks like an election Property owners 1 acre 1 vote

Why? Don't exercise the sort of bgovernmental powers that invoke Reynolds Katz: these all go with Kramer- when is something a real governemtn No Taxes Enacting regulations Running schools, providing health and welfare Conceived as private entity Limited to what they can do with the water Relationship of users to District are like relationship of consumer and business Provision of Electricty wasn't a traditional function of government Not an element of sovereignty Not the sort of function that triggers strict scrutinty You'd have to conldue it was voting
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You'd have to conldue it was voting Court looks at it like this is osmething different from voting More like management

Counter arguments Everyone uses water, and water is especially important in Arizona Everyone who doesn't own property is voiceless Rates just went up, to benefit the voting class One of the reasons this is exempted from the reuglations Arizona would otherwise put in place is because its meant to be representative Powell Concurring Legislature invented this, if you don't like it, go to the legislature and fix it Katz Summary: EPC doesn't mandate voting here But started class saying 1P1V was crazy judicail activism, why does she hate this case? Compare with Kramer: Karmer- schools - traditional government function Katz: why is the test "what sort of things is the entity doing, the power of the entiteis and decide if this what should involve voting?" Dissent (missing from casebook) EPC violated by this voting system See Holt dissent - (Brennan) - right to vote implied by direct regulatory power Electricity users directly effected by this One person one vote should apply here because the direct authority of the entity over the citizens Every voter has an interest in the polciy, and rate setting Decisions to generate surplusses should not be totally in the hands of the people who depend on it Hard to see why this case, Holt, isn't about voting if you care about direct regulatory power Katz: the premise here is that this is the kind of thing where voters aren't gettign together to make the crucial dcisions of self-governemtn, something else is going on here, that is beneath the heroic purposes of voting Like vitamins, get it from some things but not others Katz: hey're wrong on the merits here Because in Arizona, this water stuff is what matters to people The idea that some things lie outside of voting type things is why they're focuses on the powers of these entities Rice case- Office of Hawaiian Affairs F: Agency set up to protect native Hawaiians and providescholarships and things Only native Hawaiians can vote Overturned Hawaiia's arugmetns It's a special use district like Ball v. James Not general governemtnal powers, specialized things Court: Not going to decide if you're right about the powers But we never said you could restrict voting to one of these things to a particualr race Said you could do it for property owners But not based on race; This is a vioaltion of the 15th- denied right to vote based on race
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This is a vioaltion of the 15th- denied right to vote based on race Because Hawaiia is exercising the kind of powers governemtns do - protecting a certain race By using the race based classifcation, transfomred what the sort of thins were doing This implicated the right to vote Notes and Questions The Senate, Republican Theory, and Interest Representation Gray v. Sanders (Douglas 1963) Notes and Questions

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The Role of Political Parties


Wednesday, September 19, 2012 9:12 AM

Wednesday, 9/19: pp. 214-220, 250-254 Notes: Max Czernlawski, Sean Dickson Thursday, 9/20: pp. 254-261, pp. 278-79 (note 8), pp 261-274 Notes: Malissa Durham, Joe Gallagher
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Tuesday, 9/25, pp. 265-266, 268-274, 280-286, Notes: Jeremy Garson, Noah Goodman Wednesday, 9/26: No class

Thursday, 9/27: pp 308-314, 97-100 Notes: Eric Jarrett, Jeff Klein


Wednesday, October 3: pp. 98-100, 514-526 Notes: Danny Lewin, Dana Lovisolo Thursday, October 4: pp. 528-534, 535 (starting at note 8) - 541, 546-557 Notes: Alex Malson, Christy Martenson

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Introduction An Historical Note on Political Parties Political Parties and State Action The Ballot and State Gatekeeping

Political Parties Sometimes political parties will be seen as state actors and regulated under the 15 th Amendment, whereas other times states are able to enforce laws against them. Who do we understand as the party? Members of the electorate, officials in public office, or the party organizational structure (officials, employees, etc.). What happens when the party electorate fights with the party organization? White primary cases led to the passing of the Voting Rights Act because constitutional provisions failed to be sufficient to stop these actions. Nixon v. Herndon Texas state law excludes Black Americans from participating in political primaries. This case and related cases use the 14th Amendment rather than the 15th because the case law of the time did not understand primary voting as part of the Constitutional right to vote. Explicitly avoids dealing with the 15th Amendment question because of the clearly discriminatory nature of the statute at issue. After Nixon v. Herndon, Texas legislature passes a law saying that the executive committees of the political parties get to decide who can vote in their primaries. Texas Democratic Party officials only allow white voters. Struck down by Justice Cardozo, Nixon
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Democratic Party officials only allow white voters. Struck down by Justice Cardozo, Nixon v. Condon, as a violation of Equal Protection clause. Dissent argues that the party officials are not state actors and therefore the 14th Amendment is not applicable no state action. Cardozo argues that the state gave the officials the power to make these decisions under the law, this delegation counts as state action the state committees become state actor by designation, but party organizations are not state actors without this vesting. After Nixon v. Condon, Texas Democratic Party votes to limit primary to white voters, found to be constitutional because a purely private action (Grovey v. Townsend). Supreme Court argues that even though the state requires the primaries, parties are free to engage in this private expressive association. Smith v. Allwright Court flips from Nixon v. Condon (unanimous for Black exclusion) to 8-1 against exclusion, post-WWII. State requirement of a primary procedure requires that it be consistent with the 14 th Amendment. Dissent argues that this decision is motivated by war-time, anti-communist sentiments. US v. Classic Ballot box stuffing in a primary denies some voters the right to vote. Constitutional right to choose a Congressman includes the right to vote and have it counted, and voters in a primary also have the right to have their vote counted as a right and privilege of the Constitution where the state law makes the primary integral to the procedure of choice for the election or when the outcome of the primary is decisive for the general election. Art. 1 Sec. 4, authorizing Congress to regulate elections, applies to the primary when the primary is essential to the election. Does not overrule Grovey, but sets the stage for demonstrating the relationship between state actors and the party. Smith v. Allwright Same practice as in Grovey, overrules Grovey. State authorizes party election, runs poll tax, makes qualifications for primary elections, directs the selectino of party officers makes the primary part of state action. Uses the 15th Amendment because once understood primary voting as state action, implicates the right to vote. State of Texas violates the 15th Amendment by setting up the primary system in a way that authorizes a private organization to engage in discriminatory practice the highly regulated nature of the primary except for the delegation of the discriminatory procedure makes it a state action. Terry v. Adams In Texas, a group called the Jaybirds hold a creed primary a self-governing club that bans Black Americans. Every winner of the Jaybird primary then goes on to run in the Democratic primary, even though they are not required to. Court finds a violation of the 15th Amendment. Hard to find a state actor in this process, particularly in light of privacy concerns. Blacks opinion Jaybird primary brings into being precisely the same type of election that would happen if the county had held it, violates the 15 th Amendment. The jaybirds have become an integral part of the election. Immaterieal that the state does not control the process because the de facto election, of which Black Americans are entirely excluded. Note does not announce who violated the 15th Amendment, but argues that the states inaction in permitting this primary violates the 15th Amendment by giving up their control over the election. Frankfurter Concurrence Vital requirement of state responsibility requires the infusion of state officials into scheme that prevents Black Americans from voting. Finds the infusion in the participation of county officials as voters in the primary the sherriff votes as a Jaybird, upholds the election, counts as state action. Clark Concurrence Not all political organizations count, but what the Jaybirds are doing
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Jaybird, upholds the election, counts as state action. Clark Concurrence Not all political organizations count, but what the Jaybirds are doing makes them into a political parties, the members are chosen from state voting lists (excepting Black Americans), all those elected go on to be the sole member in the Democratic primary and excludes any ability for Black Americans to vote, locus of effective political choice. Minton dissent Cannot find state action As a clerk for Jackson, Rehnquist argues that Court should not be fighting the right of association and leave it for the legislature, cannot find state action in the Jaybirds activities. Modern court rejects this type of reasoning, tends more towards 14th EP rather than 15th Amendment voting. Crux of white primary issue is that white voters are not a unified mass that would vote together having an open primary would allow black and white voters to band together. In particular, no one white response to the New Deal. This process led to the one-party south, in large part by eliminating third parties.
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Who can Participate in a Party's Activities? Lecture Topic: The White Primary Cases

We have to come to terms with what these cases held:

1. If a state passes a law restricting the ability to vote in a primary based on race, it is unconstitutional. 2. If a state gives executive committees of political parties delegated power, and then the committees discriminate with that power, it is unconstitutional.

3. Smith & Terry hurt our heads: Smith lacks a state law at issue--simply the Democratic Party (a private entity) saying it is a whites-only primary party, and the Court says it cannot do that. The Court in these cases jumps from the 14th to the 15th Amendment, saying that the right to vote has been impaired based on race. What is the participatory right here? It seems to go beyond mere race. Is the Court here protecting a right to vote at the "critical juncture" of a party's primary?

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Individual Rights of Participation Lecture Topic: Nader, Duke, TX Republican Party

These cases deal with participatory and associational interests. They recognize that state primary laws or internal policies may discriminate based on viewpoint characteristics of individuals who wish to associate with the parties. Essentially, parties have associational rights, but individuals do not have a right to associate with those parties. Tashjian switched things up!

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Nader v. Schaffer (D. Conn 1976) Notes and Questions Duke v. Massey (11th 1996) Republican Party of Texas v. Dietz (Tex. Sup. Ct 1997) Notes and questions P 278 (note 8) The associational Rights of political parties Tashjian v. Republican Party of Connecticut (marshall 1986)

Scalia, dissenting, says that there is no association happening when you let independent voters participate in a party's primary --the independents are not associated with the Republican Party here! And they can easily become a part of the party by registering the day before the primary. Scalia scoffs at the majority's paternalistic view of the state "protecting the party from itself." The state here is imposing its own view of what the Republican Party wants, rather than letting the party --which knows its interests best--to decide what is best for itself internally.

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knows its interests best--to decide what is best for itself internally.

Even if the Republicans themselves really did want to open its primaries to independents, Scalia says that Connecticut doesn't have to honor the wishes of the party in this regard: it is the state's role to run elections, and Connecticut has a compelling interest in primaries. If the situation was flipped--Connecticut Republicans want closed conventions, and the state orders open primaries--should the analysis change? Katz doesn't think so, but that feels like it impinges more upon associational interests of the Connecticut Republicans. Does Tashjian overrule Nader? There independents wanted into the Republican Primary and the Republican Party didn't want them in, and the Court held that the Republicans could exclude them. It seems like the rule, thus far, might be that the party always gets its way.
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Scalia dissenting Notes and questions Rosario v. Rockefeller (1973) California Democratic Party v. Jones (Scalia 2000)
In blanket primaries, the primary ballot was the same for every voter--there were not separate Democratic and Republican primaries. This meant that Democrats could pick Republican or Democratic candidates for any office in the primary, and vice-versa. The motivation of CA's change to a blanket primary was "expanding candidate choice" to better the chances of electing moderate/centrist folks. It seems like our notion of "who makes up the party" is important here--is it the party hacks (who dislike blanket primaries), or those voters who are registered with the party (who, in each large party in CA, favored blanket primaries as indicated by the outcome of the ballot initiative)? Scalia says that state regulation of primaries is subject to the limits of the First Amendment; forced association violates that Amendment. Scalia seems to have a conception of "the party" as being the party's hardline core; he stresses associational rights of the parties here, including the right of the party to set the party's agenda during primary elections--something which is compromised by "forc[ing] political parties to associate withthose who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival."

How can this be squared with Tashjian?! The state wins in Tashjian but loses here. For Scalia, "the party" (whose associational interests are at stake) seems to be the group asserting the right in court. On both sides there is a vision of who makes up the party --hardliners or registered party members or the general electorate--which is unsatisfying. California asserted seven state interests: (1) producing more moderate officials (impermissible--not a state interest); (2) better representing the electorate (same); (3) ensuring that "disenfranchised" voters are guaranteed an effective vote (no one is disenfranchised here--independents just aren't associated with either of the two biggest parties); (4) - (7) fairness, greater choice, increased participation, greater privacy (all legitimate interests, but Prop 198 is not narrowly tailored to achieving them).
Katz is interested in #3. She thinks the majority is effectively saying that the associational interest is "bigger" than the "disenfranchisement" that results from members of the other party in a "safe" district not being able to effectively pick a candidate. Good point from a student: M aybe the difference between these cases and the White Primary cases is that in these cases, one could simply register with the other party to vote in their primary, whereas in the latter non-whites could not overcome the exclusion--immutable characteristic!
Katz says we can't dismiss the burden of just saying "shut up and be a Republican for a day!"; there is a First Amendment issue here. There is a portion of the opinion not included here wherein Scalia says that it "can't be correct" that the right to cast a meaningful ballot is not at issue here because states don't even have to conduct primaries--so how could there be a meaningful right to cast such a ballot?
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Stevens dissent Washington State Grange v. Washington State Republican Party( Thomas 2008) Washington state used the blanket primary for a long time, but then they lost in at after Jones. Washington voters passed Initiative 872 (I-872) which was designed to be a nonpartisan blanket primary as was reflected in the dicta in Jones. o But theres a wrinkle: candidates get to state a party preference. Unclear what this is going to look like. [Student with how the ballot looks today: it just says R and D. EK
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o
going to look like. [Student with how the ballot looks today: it just says R and D. EK finds this interesting b/c its not how she thought it played out.] District Court strikes it down because it suggests a party endorsement. 9th Circuit affirms. 9th Circuit judge acknowledges it is different from the blanket primary from Jones. But nonetheless finds that this places a significant burden on the party to have an unwanted candidate as their standard-bearer. SCOTUS reverses 7-2. This came before Crawford and was seen as the writing on the wall for Crawford. Many thought it was designed to help the outcome of Crawford by creating a new standard for discouraging facial challenges in election law. Thomas writes for the court thinking that this is facially fine. He can imagine a way for it to be okay: disclaimers, etc. Since this hasnt gone into effect yet, no way to say how it will be implemented. o No patience for the argument that voters will be confused. He argues that we should have more confidence in the voting public. Voters will know whats going on. Why speculate that they would be confused? This was the beginning of the Courts shift to discouraging facial challenges. And Scalia is screaming about this in dissent. The as-applied challenge may well be impossible. o How to demonstrate confusion? The Wash. Secretary of State explains the system, the parties identify their candidates. What would the study look like? The counterargument to the as-applied challenge may just be that the parties didnt do enough off-ballot work. Since the state will implement with Washington State Grange in mind, it will do whats needed to avoid the ballot being struck down. o Besides, Scalia argues the study is unnecessary. There is a reason I prefer R/D is there. Its designed to influence voters. Think about David Duke. The party does not get a place on the ballot to repudiate the fringe/unwanted candidate. Since the parties have no opportunity for counterspeech, it seems like this is designed to suppress the ability of parties to establish bright-color partisanship. The state is attempting to push a moderating influence which for Scalia is not a valid interest. He thinks they are trying to blunt the effectiveness of parties. Student question: What about the fact that in the partisan blanket primary you will only get one candidate per party? Here you can get 2 from the same party. EK: It would be an interesting distinction. It would certainly complicate matters. Student comment: This does weaken the party; moves power away from it. EK: Yes. This is the point of the Washington ballot. This is what Scalia dislikes. In most elections, the centrists will advance out of the primary. o This is a form of political stability. Do we want that? Scalia doesnt. Student comment: How about we view this as a counterweight to the safe-districting effect of getting more extreme candidates. How to decide between the state action of fostering partisanship or fostering moderation? Summary: Scalia thinks the burden on the party is big. This will shape how voters view the parties and takes this out of their control. The candidate gets to hijack the goodwill/brand of the party. o EK: there is something confusing about the trajectory of Scalia through these cases. This can be reconciled with Jones. But how do we explain Tashjian where he doesnt find a party interest?
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Roberts Concurrence Scalia Dissent The Existing Two-Party System The interaction of Ballot Access and other Electoral Regulations in Perpetuating the Two-Party System Timmons v. Twin Cities Area New Party (Rehnquist 1997)
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Timmons v. Twin Cities Area New Party (Rehnquist 1997) Minnesota has an anti-fusion law. Fusion occurs where more than one party selects a candidate to represent them. Minority parties support fusion because it allows for the possibility for a third-party candidate to win. It also helps to organize dissent against the major parties and influence the main party platforms. o They also aid with the longevity of third parties. Makes the barriers election to election less imposing. Why would minority parties support the anti-fusion law? Because it helps to channel dissent into the minority party (e.g. Democrats) rather than let third parties flourish. In the long-run they think that this will be more helpful. o Vote for anti-fusion by the major parties is a precommitment strategy. Prevents them from appealing to third parties in election cycles where it may otherwise be attractive to do so. Preserves long-term dominant party strength. In Timmons, Dawkins is the incumbent state senator and is a member of the majority party. He then reserves the endorsement from the New Party. Neither Dawkins nor his party (DFL) objects. [Continued next class.]

Timmons v. Twin Cities Area New Party (1997) (p. 308) anti-fusion measure adopted by state of Minnesota in 1901 to (suppress third parties) enhance political stability. New Party wants to nominate candidate whos already the DFL candidate. The candidate, New Party, and DFL are all okay with it. But MN state govt is against it. REHNQUISTAnti- fusion rule doesnt prevent the party from organizing, endorsing who they like, etc.
Ct. App. Found that the burden on minor parties was severe. Stopped them from (1) Developing alliances; (2) Broadening their electoral appeal. Rehnquist responds: You can still organize and participate in the political process! o PROFESSOR SAYS: This is pretty formalistic. Chief Justice says you can still organize, but its obvious that they cant have a meaningful participation in the election without fusion. Besides, many features of our political system put burdens on third parties, so how can they be entitled to fusion where theyre not entitled to, say, proportional representation [i.e., dont elect congresspeople at large]? o First-past-the-post o High costs of campaigning

What do we think about this argument? Against Rehnquist o Big difference between proportional rep. & fusion ASSOCIATIONAL RIGHTDistrict elections doesnt prevent third parties from naming their candidate. Anti-fusion directly stops third parties from putting their standard-bearers name on the ballot. o All Rehnquists other examples have valid (like, actually valid) other purposes. The primary purpose of anti-fusion is to crush third parties. Justice STEVENS picks up on this. Single- member districts help represent each district more closely Interests for fusion are crappy at bestvoter confusion, candidate competition For Rehnquist
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For Rehnquist o Theres clearly no Constitutional obligation for states to promote third parties interests. And the claim in this case is that anti-fusion burdens third parties. Beyond this, Rehnquist also comes up with his own state interest: a healthy two-party system. Political stability is good, and two parties foster political stability. Arguments for why hes right o [we did not advance any reasons why hes right] Arguments for why hes wrong o For one, no self-respecting lawyer would stand up in court and say your honor, we want to get rid of third parties! o STEVENS points out that insulation of two parties should count against o Where does political stability even come from? Its just kinda a trope in the Rehnquist court. o Isnt the logical result a one-party system? If 2 is more stable than 3, isnt 1 more stable than 2? PROFESSOR: Well no. Not really. What level of review do we see in Timmons? Extremely low. So low that this provision is getting validated by a reason that Minnesota didnt even advance
Also, shouldnt we see a fussy Scalia opinion here? Dont we want to protect the right of a party to be crazy? On the other hand, maybe this opinion protects party purity and precommits parties against making deals with third parties
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Stevens dissent Souter dissenting

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Preclearance and the Voting Rights Act


Tuesday, October 02, 2012 6:50 PM Wednesday, October 3: pp. 98-100, 514-526 Notes: Danny Lewin, Dana Lovisolo Thursday, October 4: pp. 528-534, 535 (starting at note 8) - 541, 546-557 Notes: Alex Malson, Christy Martenson

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week, I'd like to begin by wrapping up our discussion of the retrogression standard under Section 5, and thought we would take a look at Texas v. Holder, a recent decision denying preclearance to the Texas Voter ID measure. I have not edited the decision and please feel free to skim and skip parts (Parts III A & B in particular). Then, I'd like to discuss the constitutionality of Section 5 of the VRA, pp. 559-573, 573-584, p. 12 of the attached excerpt from City of Boerne; and the Shelby County decision. I have not edited Shelby County and here too you should feel free to skim or skip parts that do not interest you. I expect to begin the constititutional discussion on Tuesday, and don't think we'll reach Shelby County until Thursday.
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(The struggle for Black Enfranchsiemnt pg 97) Giles v. Harris (Holmes 1903)

Background: Explosion of black political participation in the Deep South after the Civil War through the 1890s. One jurisdiction: 127,000 voters in 1890. By 1910, there are about 700. Largely because of the Constitutional conventions in these states designed to disenfranchise black voters. Giles v. Harris, however, is an enormous part of this. Mr. Giles shows up to register in 1902 and is denied. Hes a literate black man Hes a janitor in a federal courthouse o So it wont be taken away from him for bringing this case He has been a registered voter in Montgomery from 18711901. Hes been voting for 30 years. In 1902, Alabama writes a new constitution: If you register before 1903, youre forever registered. If not, you have to take really tough tests that will essentially never allow blacks to vote. Registrars intentionally stop blacks from registering before the 1903 cutoff.
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cutoff.
So Giles brings the case (and Booker T. Washington secretly paid for it). PROBLEM IN THE CASE: This is a suit in equity, and Giles prays for (1) An order requiring the registrars to put him on the voter rolls; OR (2) Declare the entire system unconstitutional.

Justice Holmes says this relief is impossible! We cant add you to the rolls if we declare the system unconstitutional! But if we say the rules are unconstitutional, that doesnt put you on the rolls!
Um but the constitutional defect is that black people arent on the rolls. Granting #1 solves #2. Cmon. Holmes is obviously wrong / showing desperate lack of creativity

MORE FUNDAMENTAL PROBLEM: Even if we issue a declaratory judgment, we wont be able to enforce it. Wed have to re-institute Reconstruction. Equity cant enforce political rights. The state itself or the U.S. political departments must rectify this wrong.
He knows full well that SCOTUS cant make this happen, and that if SCOTUS makes a ruling, Congress wont back him up (because were amassing an empire and dont want to let people in the Philippines vote).

PROFESSOR: Is there a parallel to Lochner here? Legislatures do things we dont like, and just because we dont like them doesnt mean that we strike them down And then, why is this nothing like Lochner? Because the 14th and 15th Amendments are SO CLEAR that this is not allowed Plus, here the legislatures are elected undemocratically because so many people were disenfranchised
[NOTE: The exact same result happened when Giles tried bringing the suit at law seeking damages, rather than in equity seeking an injunction.]

AFTER THIS CASE: House elections committee says its no longer in the business of reviewing discriminatory state election registration. This Committee says that citizens wanting to challenge these disenfranchising constitutional conventions can (1) Try to vote, and if that doesnt work, (2) Appeal to the courts. The doors are now closed EVERYWHERE.
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The doors are now closed EVERYWHERE. So everyone is acting as though White Supremacy is so entrenched that nobody in the federal government can touch it. But thats not right! These are White Supremacy Entrepreneurs, who sprung up and took radical action at the turn of the century. So in 1903, when Justice Holmes said (in so many words) we could never challenge white supremacy in the Deep South black voters had been voting for decades!!! Disenfranchisement was not monolithic o Constitutional convention failed in Maryland o It barely passed in North Carolina o Black/white coalitions all over the place o Well educated, thriving, black middle class o 54 of 66 counties in Alabama voted against And the margin of victory clearly came from voter fraud (i.e., the Black Belt came out most in support of disenfranchisement) UPSHOT: A different outcome in Giles v. Harris was possible, probably couldve been enforced, and might have changed the course of history! By saying it, he makes it true. EXAMPLE: Grandfather Clause in Oklahoma (saying you can vote if you or your ancestors couldve voted in 1866obviously excluding black people) struck down under 15th Amendment. Then, Oklahoma changes its system and re-does it with the starting date at 1916, and anyone else has to register in a 12-day window. SCOTUS strikes that down again.
Justice Frankfurter argues that 12 days isnt enough of a window because were dealing with a population that isnt accustomed to political participation and isnt motivated enough to get going within 12 days. Justice Holmes probably made that so.
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AND NOW! THE FIVE-MINUTE INTRO TO THE VOTING RIGHTS ACT


Voting Rights Act of 1965 (p. 1287) There has been a slow crawl toward creating voting rights, with acts in the late 50s, early 60s, and a little bit of voting rights stuff in the Civil Rights Act. DoJ is bringing lawsuits against voting rights violations, and even though theyre winning, its not proving effective at all.
In Selma, there are 156 African American voters registered, out of a possible 15,000. So theres a peaceful march across the bridge, and its met with extreme violenceand the whole experience is broadcast on national TV. Then we get the VOTING RIGHTS ACT.
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Then we get the VOTING RIGHTS ACT. 4Suspends Tests or Devices in states that meet certain qualifications (covered areas) Cant use literacy or comprehension tests (p. 1291) Cant use a literacy test if the following is true about your jurisdiction: State in which AG determines that on 11/1/64, you were using a device; AND <50% of your potential voters were registered on 11/1/64; OR <50% of your voters voted in the presidential election of 64.
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Review of last week

- two kinds of 5 suits o 1. Coverage suitsis it a change with respect to voting for which
preclearance is required? Allen changespreclearance is required. By 1991: less commitment to giving act its broadest possible construction. Draws a line and says the county commissioner budge change isnt a change with respect to voting o 2. Preclearance retrogression: need to show it doesnt make thing worse NOLAno chance of electing a minority, moving to the chance of electing one minority, is not retrogressive Complaint: How do you know what makes things worse? Bad standardshould be talking about fairness. This isnt clear. Abrams v. Johnson: from 1/10 to 1/11 majority African American majority districts. Kennedy said not retrogressive. o What would the alternative be if 1/10 and 1/11 were different? What would you do?
The Backdrop and Structure of Section 5 Georgia v. Ashcroft - Dems took black majority districts and put black people in other districts to give Dems more power - Does that make things worse for black voters? - Black Dems drawing districting plans. They can do thatprogress! Then John Ashcroft comes to the defense of black voters not being represented by black representatives saying voting dilution. - Notion of what makes things worse for black voters is a hard question. Who speaks for the interests? Whos the best speaker for the interests?

City of Richmond v. United States - What makes things worse when a city annexes more territory? - White city council sees growing black population, so they annex territory w/ white voters. Is that retrogressive? - Court says its ok. If we understood that as retrogression, youd never be able to annex land.
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able to annex land. Bossier Parish cases (late 90s/early 2000) - School boardcovered jurisdiction. 12 seats on the board. Needs new plan. - NAACP has plan which would elect 2 black people. In the record the Board says no b/c wed elect black people. - Janet Reno wont preclear police plan (precleared for police) when its adopted for school board use b/c theres another plan that would get two black people on the board. - This plan is dilutivebut you never gave them anything. So do you preclear? - Should a plan thats dilutive under 2 be rejected under 5? No. - Does 2 violation show discriminatory intent? - retrogressive intent: o retrogression limiting effect prong also limit purpose prong? If so, board could act with discriminatory intent as long as its not worse discriminatory intent than before. o Cabining discriminatory intent to retrogressive discriminatory intenthappens in Bossier II o What about 14A here? Not brought, so doesnt matter. o In 2006, Congress overrules it: discriminatory intent doesnt mean retrogressive discriminatory intent, means discriminatory intent. o Does Congress have the power to set up this kind of regimeto go after purposeful discrimination thats not retrogressive? The decision showed lots of hostility to VRA. Theres traditional discrimination and they still ignore it. A sign of dislike of VRA

Texas v. Holder (D.C. Dist. Ct.) - TX enacts a voter ID law. Its harsh. Indiana looks like nothing in comparison. - Can get an ID to vote. No fee, but its not costless. Need to go to office, it has to be open, and 81 counties dont even have an office. Need to present ID to get an IDneed a document that will cost as low as $22 (birth certificate) to much more. Exceptions for elderly and disabled, but only if they vote absentee. - The fight: who doesnt have ID, and how do we know. - Complaints with litigation strategy o TX is being difficult. Miss deadlines, not following through on things. o Why do that? Maybe you know its unconstitutionalthe statutes going down, so lets push it. o If you bring a modest case, you can get preclearance and then probably get VRA struck down in the process. But this case might be too extreme. o Why have an egregious law and then push so hard? - 3 panel judges said TX acted with discriminatory intent - Theres an effects prong! Facially neutral provisions with discriminatory effects are barred! Texas has to show it doesnt have those effects. Texas argued that this should be litigated like Crawfordpurpose only, poverty irrelevant. But thats not how the law works. - What does this case say? o A covered jurisdiction going to get preclearance to show no discriminatory purpose or effect in the change in respect to voting. This is a change in respect to voting. This is a device. o The questions in the case: retrogressive in effect? Discriminatory intent?

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Case says yes, theres retrogressive effect on account of


race.

diminishing the ability of any citizens on account of race. Doesnt have to be purpose to discriminate on race, but it has an effect on people based on race. Tatel notices that the law makes it harder for poor people to vote, and minorities are disproportionately represented in poverty. Racial minorities less likely to own cars than white peoplethis burdens poor people. Constitution and VRA dont care about poor people, but VRA is about discriminatory effects based on race, and those are here b/c its discriminatory against poor people. o So what does this case stand for? What if you enacted all the suggestions at the end of the opinion? Doesnt voter ID still make things worse for poor people? Isnt anything youre going to ask going to be harder for poor people. Maybe Texas is saying even a modest provision runs afoul of the standard. Maybe DOJ was right to preclear GA, b/c thats a bad case to keep VRA up, but this is better. What if TX had done early voting, and after a few election cycles said no b/c expensive and fraud, so they want to switch back. Can they step back from that? It makes it harder for poor thus minorities to vote if they do that. So at some level this case is an outrage. TX said we dont have to follow rules. Enacted radical provision w/o regard for VRA, litigated it hard and implausibly so long as the VRA is constitutional. In making these claims they make the case for why we still need VRA. Premise of VRA: minority voters cant fend for themselves in covered jurisdiction b/c normal political process not open to their needs. See TX rejecting the moderating amendments, and we can point to TX for why VRA is still required. This is exactly what the statute was meant to get at. By not presenting a more modest case, TX went way over the line of whats permissible. In more modest cases, DOJ will preclear itwill allow burdens, just not this extreme. Effects tests are complicated. Just the mere disparity never winsneed disparity and more. o Rule here: voter ID provision with these characteristics wont be precleared in 2012. o If this went to SCt, would SCt affirm? Not obvious. But maybe they wont take it. - If TX had just copied GA law, would that have been precleared? o Hard to say. A different population in TX that would change the effects of the law. - What could have changed it? Maybe if theyd behaved in discovery. Or if theyd been a little more moderate. If it seemed like they were trying at all.
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Retrogressive effect (VRAp 1295): effect of

all. South Carolina v. Katzenbach - is VRA constitutional? - Did Congresss 2006 decision to reauthorize statute basically as is from 1965 make it stay constitutional? - Does Congress have the power to enact this preclearance regime? o Yes: see McCulloch o Level of scrutiny is rationality-based review. Use any rational means to effectuate 15A. o Not limited to just forbidding what 15A forbids. Can also have remedies. o An inventive use of 15A2imposing remedies w/o prior adjudication. Thats legitcase-by-case litigation wasnt enough. Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims. o coverage formula is rational. Record shows these states were the bad guys. o Ok to suspend literacy tests b/c Congress thinks its good to do it. Congress can ban it even if Lassiter says constitutional. o Preclearance is appropriate: extraordinary conditions allow for extraordinary measures. - Blacks dissent: o What happened to constitutional structure? Huge degradation of state power. o Not justiciable. These arent actually case-and-controversies. - (TX not includedpoll tax not inb/c Lyndon Johnsons from TX.) - lesson of case: what Congress did was a reasonable response to the situation. Well defer to Congresss judgment.

Katzenbach v. Morgan - section 4(e): no person whos successfully completed 6th grade in an accredited American flag school in PR where language is other than Englishgets rid of English-only literacy tests for these people. Fluent in Spanish from PRcant be denied right to vote for failure to pass English-only literacy test. - Lassiter: literacy test is constitutional. (Still is today.) o Neutral on face. Could conclude that rationally related. - NY literacy test was to discriminate against immigrants in the 1920s, not PR at the time. - Whats your argument advocating for the NY statute. o You say Congress has outlawed something thats Const, and you cant do that. SCt says what the Const says. SCt said literacy tests are ok, so we can keep the test. - Holding: NYs literacy test DOESNT violate the Constitution. It violates VRA 4(e). o Congress can decide what can be prohibited when exercising its enforcement powers. Congress not bound by Const limitscan go beyond it. o Brennan gives two things Congress can do: 1. Congress might well have questioned whether the purposes of the test are actually for better informed voters, etc. This is about protecting the right to vote. Congress might have questioned the real motivation of literacy testthat maybe its for discriminatory purposes. Congress can ban something b/c of evidence its used to violate rights. We dont believe what youre up to.
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up to.

Internal model

2. Enhanced political power will be helpful in gaining


nondiscriminatory treatment in public services. Congress could have found that when you block PRs from voting, theyre more likely to face discrimination in public services. If you cant vote, its less likely that people will respond to your needsand theyll discriminate. The prospective model Congress can do 4(e) b/c it enhances the political power such that the community will be less likely to face discrimination in the future. Congress is remedying a prospective violation. o Deference to Congress: enough that Ct perceives a rational basis in what Congress did. Up to Congress to weigh considerations. - A 14A case. o B/c were talking about PR, not black people? o B/c the constitutional violation here has nothing to do with voting it has to do with equal protection with whatever the city is giving out? City servicesno equal protection there, prospectively?
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South Carolina v. Katzenbach (Warren 1966) Coverage formula Suspension of tests Review of new rules Notes and Questions Harper v. Virgina State Board of elections 1966 Identification of covered jurisdcitions Us v. sheffield board of comissioners 1978 Doughterty County Board of Education v. White (1978) Young v. Fordice 1997 Lopez v. Monterey County 1999 More v. Republican Party of Virginia Larouche v. Fowler 1999 Northwest Austin Mun. Util Dist. No 1. V. Holder 2009 Oregon v. Mitchel South Carolina v. Katzenbach Katzenach v. Morgon What is a "Covered Change"? Allen v. State Board of Elections (Warren 1969) Harlan, Concurring in part, and dissentign in part Black, dissenting Notes and Questions Perkins v. Mathews 1971 Dougherty County Board of Eduction v. White (1978) Presley v. Etowah Country Comission (kennedy 1992) What Constitutes a Discrimiantory Purpose or Effect Discriminaotry "Effect" and the Concept of Retrogression Beer v United States (Stewart 1976) Notes and Questions Gerogia v. Ashcroft (2003)
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Notes and Questions Gerogia v. Ashcroft (2003) Presley v. Etowah County Comission 1992 Discriminatory Purpose City of Richmond v. US 1975 City of pleasant Grove v. United States

Texas v. Holder The consituionality of Section 5 South Carolina v. Katzenbach (Warren 1966) Black dissenting Notes and Questions Lopez v. Monterey County Northwest Austin Municipal Utility District Number One v. Holder (Roberts 2009) Thomas , concurring Notes and Questions P. 12 of City of Boerne Q. Shelby

Judge Bates-Bush crony more street cred then Judge Tatel. o SC Voter IDthe statute is very different because of the authoritative interpretation thats been given to it. o Katz doesnt recall a judicial opinion like this before discussing the deterrent aspect of 5. Reauthorization for the VRA came up in 2006-everyone knew it was going to be upheld. Coverage formula o A big critique of this statutewhy are we requiring certain states to do something that others dont based on 1972. The coverage formula hasnt changed aside from a few bailouts. o Katz says this misunderstands the legal question. o This distinguishes reauthorization of Boerne & VAWAthose were new statutes, the question was whether or not they were necessary then. This question is not whether or not we should cover MS, AL, etc., today, but whether we should continue to cover them based on accepted findings that MS was legitimately covered. Does Congress have enough power to say do we still need it? Example: We put a patient on dialysis in 1972we dont just say youve been on it for awhile, now youre done. Maybe this is a bad example bc VRA is not about a chronic problem. o Hard to answer the critics bc of the congruence and proportionality standardbc where are the constitutional violations? If you have rampant constitutional violations then we should change it bc it would show that its not working. We shouldnt have to go back to 1964 just to say Congress has the power to
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1964 just to say Congress has the power to continue the VRA. o Fisher v TXits not a coincidence that in 2003 OConnor said 25 yrs. The VRA was supposed to be a temporary statute and it was reauthorized over and over again. We will get into voter dilution and minority districts seeking minority candidates later but gets into affirmative action in a way that this Court detests. o Could Congress require proportional representation? For federal electionsmaybe? For state & local electionsits less clear that they could. What would the constitutional right being violated. We would need more state action, findings that the state was involved in a constitutional violations. o VRAwe dont need rampant Constitutional violations to uphold this because our country has a history of this problem, a legacy that may be here for the rest of our lives. Judge Bates does a great job of explaining this. o Could felon disenfranchisement be a proxy for race? o Could be, could it be retrogressive? o The way the decisions have been litigated, its not the intentional discrimination behind the statute, but the intentional discrimination in the criminal justice system which gives rise to disparate impact. The argument is that Congress has already banned felon disenfranchisement under 2. In federal elections that could ban it in 2 seconds.

o The question is does Congress have the power to do the thing it did? The coverage formula wasnt predicated on the Constitution, it was predicated on a fact & it just so happened that we had a record of widespread discrimination. The problem is that if you dont have that it means you cant have that? o How do you know that things are all better or that the preclearance is just working (Motrin analogy)? We may think that Jim Crow is back there just waiting. o Race is complicated, theres an overlay of race and history and were going to have to fight it out and see what the balance is. o Bailout/in Question If things were better, wouldnt more have bailed out? Scalia has said that bailout is a jokeno one wants to bailout, they dont like the negative connotation that comes along with saying you dont need VRA. Also, this regime provides useful services for the state. Scalia would say the JXs dont have the courage of governance. Katz says this could be cast in a more positive light. o Whats the legal significance of bailout Its important that it exists. The record should show more bailouts/ins. Its important that JXs have the ability to bailout. Opponents of VRA believe exit is not actually a
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Its important that JXs have the ability to bailout. Opponents of VRA believe exit is not actually a meaningful option. The statute itself is having a negative effect bc local leaders are not asserting the autonomy that they should which is a function of the VRA.
o Voter ID o No one has made the claim that its a device, but it is a change with respect to voting. (its a device!) If anything its a poll tax. o Its not litigated as a device. o CrawfordStevens fn to Harper. Its supposedly like voting on Tuesday. o Political Party Its ok to take into consideration that party wins not race, though they are often the same thing. The argument that VRA is in the interest of protecting pol. parties. TX dems case abt pol. parties, VRA aspect was seen as a distraction Racializing partisan disputes---understanding these claims as being about race is damaging bc there are really just partisan parts. There are parts where pol. parties does some workie get out of strict scrutiny. o Not a coincidence that when political parties want changes they split kick out minority voting blocs. o Minorities lose not because they are Black but bc they are Democrats=Head explosionto be continued. If Congress had the will to get rid of felon disenfranchisement it might eliminate it in state elections as well just bc its so difficult to run a dual system. o VRA idea is that its not a chronic problem though it is treated like that the doctrine is pushing it to be treated the way that it is. Boerne pushes it to be that there should be contemporary examples of violation. o Congress in 1965 put it in for 5 yrs, 5 yrs 7 yrs, 25 yrs, now here we are 25 more? Why didnt they put it in place permanently? We wouldve still had to have ac convo whether or not that this is no still justified. o 2 violations results based discrimination. Preclearance is usually about violating Constitution. o These are not 14A violations adjudicated by the Court. o 2 is a kitchen sink kind of standardwell talk about this later and it will be awful. You decide whether or not a violation is established in a subsidiary report. Many things are relevantone of the things is a history of intentional discrimination, How do you find examples of discrimination todayhard to find them bc were on our Motrin. Katz study comes into play. Important bc even while youre medicated these things are still happen. Each decision should be

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viewed as a lens into the JXhow are they doing? What does pol participation look like in this JX. Even with this VRA regime in place, were still finding these problems. Racial bloc voting is more severe. The level of polarization is more severe in the South; whereas in the north 60 or 70% is divergentin the South where there is 90-95% theres no place for a discussion. o The only study in the record that tried to compare covered and noncovered. Probdoesnt look that different. A is responsible for of the violations (not Constitutional violations)we should care bc that of the country is medicated! Katz response to Kennedybc this tiny party of the country is responsible for when the medicated folks should have fewer symptoms than the rest of the country. Katz only looked at published decisions.there are a gazillion more in the unpublished decisions. o Katz numbers dont reflect settlements, consent decrees. o Does the VRA hold a place as a super statute? Namundothe statutory holding in Namundo is stupid. If you put that on an exam in a statutory interpretation class you will fail. o o When does this change? People said in their briefs thing such as, Barack Obama is President who needs the VRA? o IF it is struck down itll be based on Boerne & Namundoits no longer congruent & proportional. o An argument that this case doesnt tee up is DeStefano is that the VRA compels JX to think race which is a 14A EPC violation. o The years since Namundo have shown us somethingVoter ID wasnt where it is right now. o Katz can defend Namundo o If SCOTUS takes Shelby County it would strike down just 5 which would remain the states could have Voter ID, could do their redistricting plans, etc. o We dont have a vocabulary to illustrate the good that this regime does thats why we dont petition for bailout bc we recognize that there is so much good that comes with it.
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Majority Rule and Minority Vote Dilution: Constitutional and Legislative Approaches
Wednesday, October 17, 2012 6:16 PM

Thursday, 10/18: pp. 585-603, pp. 603-619 (discussion of which will continue 10/23) Notes: Chris Scad, Patrick Thronson Tuesday, 10/23: 623-651 (skim only) Notes: Tom Turner, Samantha Wright

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Defining the Harm Whitcomb v. Chavis (white 1971) Harlan (Separate Opinion) Douglas Concurring White v. Regester (white 1973) Notes and Questions Foston v. Dorsey (1965)

The Rise of the Intent Requirement

The equal protection clause, standing alone does not say that at-large voting is not allowable. And democratic theory does not provide an answer either as to which is right and which is wrong. But in Mobile v. Bolden we see the court suggesting theres something more that must be protected. But ultimately the court does not find that the system in Mobile is problematic.
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City of Mobile v. Bolden (Stewart 1980)

Stewart, in Mobile, walks through each piece of evidence and rejects them as a burden. o In response, Justice White (dissent) says that the lack of a singular official block is not proof of no actionable discrimination. Instead, Justice White looks at the precedent in White v.Regester and says that when you look at the totality of the discriminatory factors, Mobile is discriminating. White was about collecting all of the factors together and assessing the effect of all of the factors together, not separating them up and assessing each factor on its own merit. o Justice Marshall (dissent) points out that the majority is mixing up tests. Marshall highlights the fact that voting is a fundamental right and Washington v. Davis cant apply to fundamental rights. Voting is different and we need to look at White, not Washington. Is he right? Is intent necessary in voting rights cases? It had been that fundamental rights got strict scrutiny, but the court has been pulling
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fundamental rights got strict scrutiny, but the court has been pulling away from the framework in the modern framework. Theres also the issue of whether the right to vote is even at issue. Its possible atlarge voting organization doesnt even implicate the fundamental right to vote, theyre about dilution. Ultimately, we still live in a majoritarian system and at some point, minorities are going to lose. So where do we draw the line between. Justice Stewart makes this point. And says to Marshall that proportional representation is not required by the constitution. The specter of proportional representation also hangs over the issues of Section 2 of the VRA. o Proportional representation frightens Stewart because the EPC does not say anything about it. And theres a fear that we become vulcanized when we start drawing these districts. o But in reality, in Mobile there was no issue of partial vs full allegiance, in Mobile there was no representation. Congressional Response to Mobile Congress overrules Mobile saying that they dont like the intent requirement. They amend section 2 of the voting rights act. They called intent divisive, intent of people hundreds of years ago is not important, and they said finding intent it too burdensome. They incorporate the concept of results in a denial of rights. This is a disparate impact test. They instruct courts to look to processes leading to election or nomination to see if theres a denial. Looks like White v. Regester. The result of this amendment is simply to turn back the clock to a time before Mobile by creating a totality of the circumstances test. This is a race based remedy signed by President Reagan. This is complete counter to the prediction of Carolene Products because a discrete insular minority was able to get the change they needed precisely by being discrete and insular. What constitutes vote dilution under Section 2? o Factors in See Senate Report p. 638-39 (kind of resemble Zimmer factors). Equal opportunity to participate in the process of electing or nominating. History of official discrimination Polarized racial voting This was not in the Zimmer factors Comes in as a response to Senator Hatch This is an extremely tricky thing to use as a factor. It says to local politicians youre not allowed to draw lines to alter the way people vote, in order to encourage coalitions to form across racial lines. Pam Carley argues that when racially polarized voting goes away, we wont need this law anymore. Extent to which political subdivision use unusually large district, majority vote laws, anti-single shot provision, or other processes or procedures. Access to candidate slating process Distinct socio-economic status Campaigns marked by overt or subtle racism Minority election to office Additional factors: Significant lack of responsive or a good reason. o You dont need to prove all of these factors, just some of them. o But, theres not right to proportional representation. Congress steps in, but they do not make clear what they want, just that they dont want what the Court said in Mobile. Essentially, by creating an amorphous test, Congress has asked Courts to do some law making.
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Congress has asked Courts to do some law making.


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Blackmun concurrence Stevens Concurrence Brennan Dissent White Dissent Marshall Dissent

o o o

Asks why we cant focus on fundamental right (to vote) branch of EP clause. There needs to be a constitutional violation to use 14.5 A and 15.2 A power. Link up to Voter ID what is the constitutional right being violated? Cant ban Voter ID because it violates right to vote. Might be able to ban as a proxy for racial discrimination. Compare with poll tax (assuming no const. ban) Congress probably could because it violates fund. right to vote. Could congress ban felon disenfranchisement? Similarly Congress couldnt lower voting age to 18.
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The 1982 Ammendments to Section 2 of the VRA Statutorty Text: Section 2 as Amended in 1982 The Legislative History: General Context Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History (1983) The Senate Judicairy Reprot (1983) Additional views of Senator Orrin Hatch of Utah Note on the Substance of the 1982 Amendments Note on the Political Process Behind the 1982 Amendments

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Racial Vote Dilkution Under the Voting Rights Act


Wednesday, October 24, 2012 11:08 AM

ednesday 10/24, pp. 654-674 Notes: Alex Barnett-Howell, Peter Borock Thursday, 10/25, pp. 682-696 Notes: Rachel Braver, Jennifer Bronson Tuesday, Oct. 30: pp. 719 (note 8) - 728, 905-907 (note 5) Notes: Corwin Car, Erik Choisy

Wednesday, Oct. 31: pp. 890-902, 916-932 Notes: Cali Cope-Kasten, Emma Cox
Thursday, Nov. 1:pp. 735-750 Notes: Max Czerniawski, Sean Dickson uesday, 11/6: pp. 916-923, 735-750 Notes: Malissa Durham, Joe Gallagher Wednesday, 11/7: Texas v. United States (attached, we'll focus only pp. 11-16); pp. 846-860 Notes: Jeremy Garson, Noah Goodman Thursday, 11/8: pp 868-877, 879- 883 Notes: Eric Jarrett, Jeff Klein
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Judicial Modulation of Section 2's "Results" Standard: The Gingles Test Thornburg v. Gingles (Brennan 1986)

Recall fear that there is no core value to vote dilution. Vast disagreement with what to do with racial polarization in such cases. o How important a factor is it?
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o o o o o o 1. 2.

How important a factor is it? How to measure it? Criticism of Gingles: Proves Sen. Hatch was right, Court legislates core values because Congress was (intentionally?) too vague. Claim: Black voters in NC lived in multi-member districts (MMDs), and some lived in Single Member Districts (SMDs) which gerrymandered the Black population into two separate districts, so they had a majority in neither. District Court: Found for Black voters. Racially polarized voting, history of voting and other forms of discrimination etc. Issue: How to measure racial bloc voting? NC: Race must be cause of racial bloc voting, correlation is not enough. Brennan: Requirements to prove vote dilution: Minority group is sufficiently large and geographically compact to constitute a majority in a SMD. Minority group is politically cohesive. White majority votes as bloc to defeat minoritys preferred candidate. cross over voters. This accepts that there can be some cross over voting and still have Race of candidate is irrelevant. Only cares about correlation between race and voter not cause of racial bloc voting. How is Gingles read? Read to require SMDs with black majority districts. While his factors imply that failure to have SMDs could imply violation, never says it is the required remedy. OConnor (C): representation.

3. 4. Only requires that white majority votes enough as a bloc to defeat minority group plus white 5.

Inherent tension in S2 While no right to proportional representation, it tries to provide proper Brennan has it wrong on first prong Brennan focuses too much on the ability to elect, thereby
misreading statute and falling too close to proportional representation.

Need to focus on access to access to political process. Court has rejected proposition that any group with distinctive interests that is numerous enough
to command a seat and is a majority in a SMD gets one. We want to make sure that the reason for racial bloc voting is race. Cannot simply be a correlation. If there is no causation, then racial voting is not really happening. White (C):

Race of candidate is relevant. If black rep candidate wins with mixed support, which should preclude finding of racial bloc Since 1987-Present, only 14/169 (ish) cases have succeeded without proving Gingle Factors Every circuit uses causation in some form or another either as a discrete factor, or in using EK: hard to disaggregate race from political beliefs race is a huge factor in determining
beliefs, so correlation seems appropriate. the Zimmer factors. voting even if black minority rallies around another candidate. Effect of Gingles:

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Section 2 and Vote Dilution Through tUSe of Mulitimenmeber Districts Evidence oif Rcailly Polarized Voting Causation Irrelevant to Sectoiin 2 Inquiry Race of Vote as primary Determinant of Behaivor O'Connoer Concurring White Concurring Stevens Conccuring in part and dissenting in Ppart Notes Page v. Bartels NJ 2001 NJ starts unpacking African American Districts Coalitions formed in the districts, didnt need the majority-minoirty Court: no violations of section 2 these are safe democratic districts Katz: wuld maintinig these districts as they were have violated Section 2 of the Voting Rights Act? Logic of the opinion: safe democractic district = minority preferred candiate But changing the number of white people in the democratic primary Katz: only makes sense if safe democratic distrcs but not safe democratic districts So these districts pretty close So have a whole lot of white republics whose votes don't count Need to keep number of whites at a certain level of ensure the kinds of cross-over theyre talking about
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Bartlett v. Strickland Addresses the Gingles 1 factor Intro to case This issue has been floating around ever since Gingles and is resolved in this case to Katz in the worst possible way antithetical to what statute should be doing Nail in the coffin Issue: What kind of majority? Gingles says: minority has to be sufficiently large/compact to constitute single member district Majority = voting age population Katz: doesnt work in every case Theres also citizen voting age population (matters if large non-citizen (Hispanic) population) What does it mean to be an effective majority? Katz Having 51% of the population was not going to give a minority the ability to elect the candidate of its choice In the 70s need 65% Goal of regime was to provide the opportunity to elect representatives of choice At that time need super majority Creates problems and number comes steadily down Size of minority population comes down that is required to satisfy Element 1 After 2000 census, NJ controlled by dems. Takes its majorityOutline 1 Page 48

After 2000 census, NJ controlled by dems. Takes its majorityminority districts, and puts minorities in 41-43% districts Spread democratic influence Make best use of voters Dont need black majority district to win Lawsuit: do voters have claim under section 2? Is the unpacking going to violate section n2? Court: no violation where new districts are functionally equivalent New districts are still safe democratic districts and still electing representative of choice Cf: Georgia v. Ashcroft even though same basically on the facts That case was section 5 Justice OConnor: you need a majority that means ability to elect somebody on your own: non-felons, voting age, citizens Bartlett RULE: need 50% Notion of influence district When population goes below, and wont constitute a majority in the district what does section 2 require? What happens if you have fewer than 50%? What happens when you get rid of an influence district, and submerge the minority voters in districts where they dont have influence? Is there a harm in a way that VRA cares about? Have to come back to Gingles Well, they werent large enough to constitute majority in single member district? Question in Bartlett: Is a minority-majority population How do you figure out who minority preferred candidate is? who do they vote for? Frost runs, white man, in black district and theres never anybody running against him Cant be minority preferred if no one is ever running against you To be preferred, there has to be a contest people have to affirmatively prefer you Concept of political participation (like White Primary cases) there was something wrong in this district (like there was something wrong in Mobile) because Frost drew the district to insulate himself from political competition th circuit case before this 6 plaintiffs want to unite 2 districts Three types of districts Minority-majority district Minority voting age population is above 50% SCOTUS hates these Influence district Minority has no ability to elect candidate of each But person elected isnt wholly indifferent to minority interests Katz: cant measure it; dont know what it is Crossover districts (opportunity district) Minority Population is below 50% but minority voters are still
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Minority Population is below 50% but minority voters are still electing their representative of choice Katz: not exactly candidate of choice, since obviously they have to rely on other voters to get him elected Katz: they are getting their guy Get to Bartlett 2 pressure points unusual posture of this case State is using section 2 as a defense in a suit brought by the county against the state Katz: more than usual NC we cant enforce our Constitution bc VRA wont let us do it We are unable to enforce our law (that county wants enforced) They do this based on a reading of Section 2 (not because anyone is prohibiting them yet) DOJ intervenes tells state they are misreading the law States: no, youre misreading the VRA Well defend this even though you wont NC not grudging compliance; not resistance Pressed a claim that was a loser Aggressive approach Katz: we are in such a different place White southern politicians are supposed to fight this kicking and screaming, but theyre not What is state doing this? Dems are in control Districting plan to maximize dem votes This unusual posture makes us feel uncomfortable Seeking partisan gain from this statute does that mean statute is obsolete? This case is really about something else Im done with this statute, and going to read narrow missed opportunity that case represents that civil rights law never changes, dont adapt/modify; not evolving this was an opportunity to step back and acknowledge that NC doesnt look how it wants look Court responds with ok, shut it down But Katz thinks need flexibility This case eis unfortunate Question presented on pg. 682-683 Result here was utterly predictable Bartlett What provision of NC constitution is at issue?
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Bartlett What provision of NC constitution is at issue? Whole county provision Counties when districting cant be divided How do they do this with one person, one vote? NC already accepted that cant enforce law where it conflicts with one person, one vote District 18 3rd attempt at district drawing 39.26% black Pender county would have been 35.33% This kind of race based move makes Kennedy crazy Targeted move to move certain voters Procedure Trial court upheld This is minority-majority bc they have enough crossover to elect preferred candidate Stipulate that gingles 3 is met voting bloc Appeals reverses Minority has to be a numerical majority Issue: Does section 2 require creation one of the 3 types of districts? Pg. 682-83 Justice Kennedys analysis Is Gingles 1 met if minority is less than 50% Kennedy: no Gingles says have to be sufficiently large, compact and this isnt a majority But theres precedent, footnote You cant do it on your own Fact that you need others to help you is proof that there is no claim here No requirement to give minority voters their max potential Tension with Gingles 3 Can there be white bloc voting and crossover? If you have crossover voting can you also have bloc voting? Souter response: You dont understand racially polarized voting Katz: why isnt that really such a big problem? You could have 49% block voters, 2% crossover and 98% white bloc voting doesnt mean you dont have white bloc voting Racially polarized bloc voting exists when 98% of voters vote against minority preferred candidate We dont actually require 100% to find bloc voting RULE: if your minority doesnt hit 50%, you cant bring Section 2 And your district has to be compact so cant go draw a crazy district to get to 50% Justice Souter Says majority is inconsistent; perverse result would require creation of more majority-minority dstircts
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creation of more majority-minority dstircts NC has to do something to comply with Section 2 And well say good enough or not good enough And majority is saying cross-over districts dont count NC is going to create some number of these districts 12 of these things happen anyway which is close to meeting obligation And this rule means you have to create more majority-minority district Katz: I think that Souter is wrong about that Kennedy response: That possibility will never happen NC doesnt require a certain number of black districts; and not going to let you draw the crazy district Administrability component Administrative problem in expanding the statute to allow these sorts of claims Katz: is this as hard as it sounds? Cant court drive us more away from minority-majority distrct? Shift locus from entitlement to require majority-minority to a protection of a coalition voting Crossover voting is something to be encouraged Fact that crossover can happen does that mean wre done with this probject? Katz (Souter): No Cant depend on crossover voting to be sustained if we dont protect it Given our history, and consistence of racial bloc voting, when we see it breaking it down, we should focus on keeping it going Hate for this has blinded it to the goal of the statute in the first place to achieve a certain type of voter participation where we dont all vote in blocs Here we see NC making some progress And now we tell state to instead enforce its Constitution, and these alliances might not be there next time IS this using race too much? Clear violation of VRA to make 100% black district Every single district has an optimal population Precise number of black voters in a district to get crossover without having too many or too few If you can have majority with less than 50% and crossover districts count as satisfying Section 2, then is anything over 50% too much?

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Reemergence of a "totality of the Circumstances" approach What the Gingles Test did in 1987 was to take the multi-factored test in the senate report and say, as a matter of law, that when the Gingles conditions attach, there is liability, or a really good chance for liability Wants to say liability and not remedy The standard implies a remedy But all the case really says is when a minority group lacks opportunity for representation The structure is the thing causing the problem- its a liability standard Bartlet (2009) If you have a structure and 2% of white voters are joining with blacks so its 48% Black and 2% of the white voters vote ith them, then no liability Main takeaway: Section 2 not violated unless minority population that is able to elect a candidate of their choice, all by themselves, i.e. need greater than 50% voting age population Katz: Bartle is hard for reasons dissenters arent forced to confront because of the stipulation on white racial bloc voting Need to figure out where to go, 48%, 39%, 25%

Racial bloc voting o Not in the Zimmer Factors o Emerges in 1982 as a response to Sen. Hatch To prevent Sec. 2 from requiring proportional representation o Issue: idea that people think alike based on race is something Kennedy, others bristle at, fits strangely in 14th amendment jurisprudence Idea that people shouldnt behave like this but reality on the ground shows it to be the case o Causation and Correlation o What should we do it about it on the ground? Ex: Obamas election people saw implications on constiutionaltiyt of sedction 2 But see that only 10% of whites in Alabama voted for Obama What should we be doing to forge relationships with people who might have other ideas than us? Some perception that creation of majority-minority districs in the 90s of exasterbated this problem
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Johnson v. De Grandy (Souter 1994) F: Now not talking about multi-member districts Here: difference between 2 possible signle-member districts Three-way struggles Whites Cubans African American

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African American Case reflects deep judicial skepticism on safe districting And safe districting is what Gingles is read to require b/c Gingles read not just to create liability, but imply the remedy of Minoirty majority district Challenge to Florida Resdistricting plan DC finds violated Political cohesion among Cuban and black groups, but not between them 9 Minority-Majroity Districts in house, but could be more o Remedy: create more Senate side- could be more, but cant draw more Hispanic districts without removing Black district SCOTUS: Affirms on Senate Remands on House Souter: Gingles Factors Yes, Satisfying Gingles factors is necessary but not sufficient to find section 2 violation for vote dilution But need to look at the totality of circumstances o Congress expected comprehensive, assessment o Not limited canvassing of the relevant facts, look at everything Times have changed Now talking about single member districts, not talkinga bout complete defeat and shut out, but claim that a particular community would have more success with different lines Katz: where did the District Court go wrong? Pg 724: did not give sufficient wait to a districting plan where the number of majority-minority districts in substantial proportion to the voting age population Failed to ask if totatlity of circumstances, including those pointing to proporitonaltiy, would deny minority voters equal political opportunity. Souter isnt talking about how many Cubans, Africna Americans represented Hes looking to how many districts with a majority of black or histpanic voters And where the number of those districts exist in substantial proportion to the number of Cuban and African Americans in the area, it seems like youve gotten what you deserve o Hes talking about the opportunity to elect o Not the amount of people you get elected If number of districts s in rough proportion to the population, it seems okay. Q: how do you define the geographic area? o he doesn't explain Its not about outcome, its about the opportunity to participate Katz: Whats wrong with maximization? What is proportionality doing? Getting, not the maximum, but getting what youre entitled to. Souter: not entitled to more to a feast Can infer dilution through political famine, but one not entitled to suspect dilution through lack of political feast But proportionality is not a safe harbor Runs counter to text of Section , that presence or absence of a violation be assessed Could excuse offsetting blatant gerrymandering in one part of the state with
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assessed Could excuse offsetting blatant gerrymandering in one part of the state with another district on the other side of the state Tendency to promote and perpetuate efforts to devise majority-mionirty districts even in circumstances where they amy not be necessary to achieve equal political and electoral opportunity Majority-minority districts are politics of second best minority voters are not immune from the obligation to pull, haul, and trade to find common political ground i.e. dont draw these districts when theyre not needed these districts are needed when you cant pull haul and trade because the other side wont trade with you
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Page 905-907 Rural West I Rural West II What happens when black community cant elect their candidate of choice, but not totally ignored F: Voting age populations in mid 90s: 14% black 33 state seante districts, have 2 districts, enough population to have 3 districts in west ten. Plaintiffs: Tenn should have created more majority-minoirty districts than they did Gingles Factors Tenn: Youd be better off without those marjoity-minority districts, thatll reduce black influence all over the state Betterto be spread out Section 2 Case- not covered district Is it the state of Tennesees call to decide that the minorities would be better off? o Are the litigators better o Did congress make this judgment with section 2? o Did Brennan already decide this?

Rural West Tennessee African-American Affairs Council v. McWherter (p. 905 n. 5) Importance of having a seat at the table. TN 14% black. Districting plan for the state Senate. 3 mmd out of 33. Should there be an extra one in Shelby County and one in rural part of state. Court says black voters will be better off if opt against concentrating them and instead spread out in influence districts. Pre-DeGrandy Dist. Ct. says that 2 favors mmd. Focus on ability to elect. Rely on senate report under 2 to say successful minority rep is a factor. DeGrandy is then decided and the S. Ct. says think about it more in light of that decision. Dist. Ct. reverses itself. Shouldnt have excluded the influence districts from the totality of circumstances review. The question is not if VRA requires creation of influence dist., but if influence dist. Is factor in totality of circumstances. They say it is one that mitigates against finding dilution. Then say theres no dilution. Influence districts makes black population better off. How does the court know the minority population will be better off? Base it on testimony of two state senators. Both say work to further interests of black
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testimony of two state senators. Both say work to further interests of black constituentsvoted in favor of MLK Day. Ct. takes this to show that minority population doesnt have to be majority in a district to have influence. Is this influence sufficient to weigh against claims of dilution? Is there anything about this kind of evidence that gives pause? Politicians could be speaking out of self-interest. These white state senators wont get elected as easily or as much if concentrate minorities in districts. Are these senators responding to demands of the Democratic coalition in the TN senate, or are they responding to the wishes of their constituents. Argument that it was the black senators who said they wanted the holiday, and because of them the white senators went along. The Democratic coalition had to stand together to get things done. The holiday vote broke down on party lines. Was the black presence in the influence districts or in the state senate the necessary component? This speaks to the need for a consistent seat at the table. Bleaching hypothesis: deliberate creation of mmd whitens the surrounding areas and makes them more Republican. This is how Reps took over House in 1994. Then, black population would have been better served by TN type plan with influence districts. Katz thinks the story about mmd being a detriment is an oversimplification. Idea in bleaching theory is that black voters in influence districts exert influence despite non-majority status. Yet, it rejects the idea that black representatives will have the same effect in the legislature. Cant presuppose influence in one place without a theory about why it wouldnt apply elsewhere. Post-VRA, solid Democratic South goes away. That didnt happen right away. The Democratic party held onto power for a long time because of incumbency and sophisticated gerrymandering. In 1994 65% of whites in the south vote republican (? About #). Part of the story has nothing to do with mmd, but larger idea of what VRA meant to do. Also have to acknowledge that may be voting for local democrats not because they like the candidate but because they want Dems to have control in general. What does it mean to influence a particular representative? Creation of mmd brings lots of black candidates, as opposed to black preferred, into office. Katz thinks idea that mmd are unequivocally good or bad is mistaken. Stories of detrimental consequences are overly simplistic.
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(pg 890) Race and Represenattion: a New Synthesis? Substantive and Descriptive Represetnation Georgia v. Ashcroft (O'Connor 2003)

5 case. Citations to 2 cases. She cites Gingles and DeGrandy even though 2 compliance is not grounds for preclearance. This case has been overruled. At the time people thought this interpretation of 5 would be the end of 5 as we know it. (WHY?) In the early 1990s, GAs districting plans kept getting rejected by DOJ. In 2000, Dems control house, senate, and governor. Dems want to hold onto power because see theyre in trouble. Look at what happened in 1994 to Dems because of mmd, so start unpacking majority black districts until theyre no longer majority black. Also put Reps in some districts and overpopulate those so that
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majority black. Also put Reps in some districts and overpopulate those so that Reps have fewer districts. Spread out Dems. No Republicans vote for this plan. GA needs preclearance so goes to court instead of DOJ b/c Ashcroft was in charge and would stop political gerrymandering through preclearance process. Ashcroft is now on the side that GA isnt adequately protecting minority ability to elect against state of GA. ACLU lines up with Ashcroft. In district court everything except senate plan is precleared. Question before the S. Ct. is whether unpacking reduces ability to elect representatives of choice in way that violates VRA. Do they have less ability than before? Ct. says yes. In the meantime, Republican is elected governor who is against the plan GA is trying to get cleared. He says the state should back out because should read VRA expansively, but the state AG is a Democrat so refuses to stop prosecuting the appeal. The governor sues the AG, but it doesnt get resolved before the case gets decided by the S. Ct. OConnor for majority says dist. ct. probably should have precleared the plan. Technically, its remanded. The dist. ct. failed to consider relevant factors. Compliance with 2 isnt relevant. How do we know if black voters are worse off than they were under the previous plan? Does the unpacking leave them in a worse position than they would have been in? OConnor says we should look to the totality of circumstances. Start with the ability to elect, but this isnt dispositive. The state can choose between coalition dist. where success is likely but not guaranteed and mmd. She says she doesnt know what makes black voters better/worse off. Its up to the state. This is why people think it gutted 5 because the state of GA shouldnt get to decide because the statute is premised on not trusting state governments. Katz thinks the Court likes the unpacking. Its not just about state discretion, but also a preference for this form of representation. Also look at ability to participate. Look at if the plan adds or subtracts influence districts. Do elected representatives take minority interests into account? This is looking at influence. Theres a problem with proof here. Is there anything to this other than letting states do whatever they want? Souter says this is unadministrable and wrong on the substance. Katz agrees re administrability. OConnor says the state can risk fewer minority reps in favor of more sympathetic representatives. Also look at degree to which black reps in office are exerting a lot of power. Can you have fewer seats if have a committee chair? Look at if reps from the protected districts support the plan. Here, the black reps from the unpacked districts say its a good plan because it helps Dems even though makes them as individuals more vulnerable. All justices agree that interest districts should be a factor. Where did the district court go wrong according to OConnor? It focused too narrowly on the tree districts in question in isolation. If look with narrow focus, it is hard to elect in those districts, but have to ask larger question of if it got harder in the state as a whole. Too much focus on ability to elect. Dist. Ct. didnt take into account legislators supporting the plan (race of the representative matters to her). This is the first time 5 involves a totality of the circumstances test.
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Georgia v. Ashcroft (2003) (p. 890), continued from 10/31


Maybe OConnor is on to something here Its 2003, the landscape is very different than it was decades ago. OConnor prefers a holistic review on the totality of the circumstances Sure, we still count number of opportunity districts We look at the whole state We take into account what the African American delegation to the GA legislature thinks about the redistricting plan And maybe we allow the state discretion to choose among valid theories of undiluted representation (some influence in more districts vs. fewer, safe districts) So what do we think about this? Arguments for OConnor o Totality of the circumstances is generally a good idea o Tennessee case we looked at the other day is pretty good evidence that MMDs arent strictly necessary. o Its incredibly difficult to say, categorically, that an MMD is better than an influence/crossover district Arguments against OConnor o Conflates 2 and 5In a 5 case, the state has the burden of proof! This is one of the many things Souter is upset about. o Didnt anchor to possibility of electing candidate of choice o ADMINISTERABILITYHow in the hell are we going to weigh the TOC factors against one another?!?! This is a main concern for Souter, (and, significantly for our purposes, Professor Katz) One African American Georgia Democrat votes against the redistricting plan (Regina Thomas). Shes elected in a special election w/ 78% of black vote and 8% of the white vote. When she runs again in 2000, she wins against a white Republican who Republicans dont support. And she still only gets 56% of the white vote. This is very significant polarized voting! Does this cast more doubt onto Georgia v. Ashcrofts holding? o (Also we might want to suss out whether white people are voting because of party or voting because of race) o (But just saying, oh, its just party politics, not racial politics, isnt enough to resolve the whole story)
SOUTERs dissentraises several concerns with the majoritys holding Administerability (discussed above) Not anchoring the analysis to ability to electin OConnors terms: 5 is about DESCRIPTIVE REPRESENTATION (number of minoritypreferred candidates in office), not substantive representation (how overall responsive the legislature is to minority needs). o But maybe Souters real problem is that OConnor didnt demand enough analysis on racially polarized voting In other words, she didnt ask Georgia to make a real showing that these districts would be influence districts, rather than districts where white bloc voting totally
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rather than districts where white bloc voting totally drowns out minority votes, and the minorities get functionally no say. o NOTE: The legislative fix enacted in the 2006 VRA reauthorization incorporates this test. Its now, statutorily, about ability to elect, NOT ability to influence. A few final notes from Prof. Katz: Move to assessing coalition districts (rather than ONLY counting MMDs) is administerable o Theres a clear difference between that and weighing number of black committee chairs versus an MLK holiday failing, or other random soft factors like that The court seems to be animated by the underlying concept that Georgia made the right choicethe majority seems to be convinced that unpacking is actually better for minority voters o NOTE: This is not explicitly discussed in the opinion How this lines up with Grutterthis could be another example of OConnor & co. being uncomfortable with using race so explicitly as a factor.
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Kennedy concurring Souter dissenting Concerns about Racial Essentialism (916) League of United Latin American Citizens v. Perry (Kennedy 2006)

A couple of organizing themes that Prof. Katz: A core notion of what it means to participate in the political process is implicated in this case. Even though this and Georgia v. Ashcroft are clearly partisan moves that use race as a proxy for party, these are STILL race cases. o Or, stated more strongly, arguing that this is about FACTS: Party gridlock over redrawing an old Democrat-drawn districting plan in Texas meant that a federal court had to draw lines (in a D. Ct. case called Balderas). When federal courts draw these lines, they try to keep the lines as close as possible to the status quo, and at that time the status quo was a RIDICULOUS Democratic gerrymander. When GOP finally takes over all branches of the TX government (and after Democrats stop literally hiding to avoid the legislature having a quorum), the legislature re-redistricted, another partisan gerrymander. So theres a predicate, non-VRA question about whether re-redistricting (i.e., more than once a decade) is allowed under the EP clause. THE VRA CLAIM: In district 23, the GOP incumbent is getting less and less Latino support, so the new lines cut a lot of Latinos out of the district. To make up for that, the legislature creates a District 25, which stretches very, very far away to find some more Latinos to make it an MMD. But note: This was never

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an MMD beforehand. The league of United Latin American Citizens (LULAC) bring a 2 case

Katz: Its critical to this case that these voters are on their way to becoming an MMD, getting out, registering, voting en masse, and then Tom DeLay moves the finish line right as theyre about to cross it. Kennedy: Even though theres a statistical majority, theres no cultural compactness, and therefore this new District 25 doesnt offset the 2 violation caused by carving up the old District 23. Now thats a weird move. Weve never seen that before. NOTE: This is the first time SCOTUS has held that 2 was violated. Are Gingles factors met? No question about # 2 & 3. But theres a live question about #1its not clear that they could elect their candidate of choice! The GOP incumbent (Bonilla) is very much not their candidate of choice. o Kennedy gets around this by saying that Latinos were on their way there. How does Kennedy find a violation? History of discrimination. o Though note: a lot of lower courts dont do this for Latino voters. Distinct socio-economic status o Though note: A lot of lower courts dont check this box, either, because A) Theyre from Mexico. (Seriously, they say this). B) Theyre registering to vote! Obviously theyre doing alright! Upshot: Kennedy just finds everything in favor of the plaintiffs. Prof. Katzs explanation for this forthcoming
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Stevens Dissenitng in part Souter concurring in part and diseenting in part Roberts concurring in part, concurring in the judgment in part, and dissenting in part Scalia concuring nt he judgment in part and dissenting in part

Beyond Dilution Through Submergence Holder v. Hall (kknedy 1994) Thoams, concurring in the jdugment Blackmun, dissenting Ginsburg Dissenting Separate Opinion of Stevens

Three modern cases to think about in connection with Thomas in Holder GA v. Ashcroft deliberate unpacking of black districts to increase Democratic power okay when it coincides with committee chairmanships and other measures LULAC v. Perry okay to destroy Frosts district, but not okay to unpack D23
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LULAC v. Perry okay to destroy Frosts district, but not okay to unpack D23 Texas v. United States lower court says the redistricting plan involved intentional discrimination o Beyond finding intent Hispanics were responsible for the growth in seats; if you take them out of the calculus, TX loses a seat in last reapportionment; as a result, Hispanics get no share of increase Thomas in Holder o Mistake was in Allen VRA doesnt cover this concept of vote dilution o We dabbled in political theory, and the wrong political theory wrong to maximize number of black districts because of balkanization o Also wrong to assume that race presupposes political leanings and attitudes
Katz on Thomas The doctrines weve been studying are necessary conditions for the election of Obama in 08/12 majority/minority districts changed the face of governing this country o Not a response to Thomas, but an observation Hes flat wrong on statutory construction o Allen said what it said in 1969 and Congress continually reauthorized the statute w/o a mention of doing away with the concept of vote dilution o The notion that the court got it wrong and Congress said nothing is unpersuasive o Congress acted repeatedly and made clear when it was not happy with the Courts moves Courts incrementally crafting a common law doctrine o Part of a decades-long conversation about how political participation should be shaped and defined in this country o Not to say the courts are right in any one of these cases Partisan v. racial gerrymandering Its clearly partisan how can I get more for my party but the means by which parties go about that are so race-based that its not a distortion of the VRA to understand racial injury to follow Not a perversion or misapplication of the doctrine not a coincidence that GA dems are holding on to their last little bit of power by unpacking black voters not a coincidence that republicans in TX want to hang on to power by throwing out 100k Latinos Tough the goal is partisan, but when you do it through a racial dance shouldnt surprise us that it yields race-based injuries
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Texas v. IS(2012 DDC) (Ctools

Katz on Thomas The doctrines weve been studying are necessary conditions for the election of Obama in 08/12 majority/minority districts changed the face of governing this country o Not a response to Thomas, but an observation Hes flat wrong on statutory construction o Allen said what it said in 1969 and Congress continually reauthorized the statute w/o a mention of doing away with the concept of vote dilution
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o statute w/o a mention of doing away with the concept of vote dilution o The notion that the court got it wrong and Congress said nothing is unpersuasive o Congress acted repeatedly and made clear when it was not happy with the Courts moves Courts incrementally crafting a common law doctrine o Part of a decades-long conversation about how political participation should be shaped and defined in this country o Not to say the courts are right in any one of these cases Partisan v. racial gerrymandering Its clearly partisan how can I get more for my party but the means by which parties go about that are so race-based that its not a distortion of the VRA to understand racial injury to follow Not a perversion or misapplication of the doctrine not a coincidence that GA dems are holding on to their last little bit of power by unpacking black voters not a coincidence that republicans in TX want to hang on to power by throwing out 100k Latinos Tough the goal is partisan, but when you do it through a racial dance shouldnt surprise us that it yields race-based injuries
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Race and Representation: A New Synthesis? The Transformation of districting United Jewish Organizations of Williamsburgh v. Carey(White 1977)

Dealing with a preclearance case (parts of NY covered under VRA); atty general denies preclearance for redistricting plan and then NY submits a revised plan Pulling down the minority districts that were packed at this moment in time theres a view that black voters in NY need to constitute 65% of the districts VAP to elect a representative of choice o 65 has come down but it was important at the time To appease the AG, NY takes 30k Hasidic Jews out of one district and splits it between two districts o Never going to be a majority in any district, but always voted together so they sue! Whats the alleged injury? o Under 14th and 15th Amendment they have an intuition that you cant do this to us you have drawn a line through this community by diluting the value of each plaintiffs vote solely for the purpose of achieving a racial quota o Ps also allege they were assigned solely on the basis of race and that dilutes their voting power Confusing allegations o Shaw v. Reno not decided yet (its the 70s!) o You cant do this to me to achieve a racial quota sounds a bit in individual rights but also sounds like a group-based claim because of the dilution language something group-based to it o Not a claim of vote dilution court does not treat it as such Why does the court not buy group-based intentional discrimination?
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Is Justice White right? Do you agree with White that plaintiffs in this case suffered no injury within the context of the 14th ? Each plaintiffs vote (allegation) was diluted by halving it for achieving a racial quota White says no injury because the assignment is benign wasnt done to stigmatize the Ps or black voters no slur against Hasidic Jews (white people) who are represented proportionally in the county and state Question is whether white people in NY state are adequately representing this group of people
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Why does the court not buy group-based intentional discrimination? o Seems like theyre saying we have a constitutional right to be in one district or a right not to be split between two districts where the reason were being split is to achieve a racial quota o Legal claim is interesting Book makes it hard to follow heres what we should pay attention to o Parts II and III that we dont get, written by white you can use race to comply with Section 5, and that doesnt violate 14 and 15 simply because the state used a statistical quota to ameliorate the issue o Part IV (what we get p.848) Justice White with Stevens and Rehnquist Regardless of whether Section 5 made you do this, NY can do this so long as it doesnt violate the Constitution and dont think this violates the Const. The state used race, but it didnt use it as a stigma no discrimination Enhanced non-white majorities so that non-white representatives could be elected Absolutely no injury here the state can do it so long as it does not violate the Constitution no intent to discriminate or slur o No fencing out of the white population from participating (Gomillion) o Plan didnt minimize or cancel out white voting strength o No claim by Hasidim that this plan hurts white people or that it dilutes white voting strength no harm, no foul, no stigma, were done. NY can do this! Nature of the absence of injury who is not injured? White people (no discrimination) Burger o He sees where the court is going to go in the 90s we dont get his whole opinion o Gomillion told us you cant draw a district with the objective of achieving a predetermined racial result thats what NY did here They were looking for 65% - they could have hit 63.4% black without cutting this community in half but they couldnt get that other bit so they drew the line o A racial quota is a loaded term, but its what they were doing o No evidence that 63.4% vs. 65% was necessary to comply with the VRA o Practice here rests on bad assumptions only blacks and rep blacks and only maj/min districts can elect blacks firm bloc voting has been repudiated (ehhh)

this group of people Brennan says the same as Burger you purposely split this community, and you didnt go after other white voters elsewhere you placed all the burden on this community (like Cubans in Miami discrete and insular minority who exert a big influence on politics)

No injury no constitutional injury by drawing this line to achieve quota Burger thinks theres something here Brennan comes in and sounds a lot like Clarence Thomas says quite a bit thats interesting part of it is the deep skepticism about whether this group is represented or virtually repped by whites in other parts of the state or is it particularly insular at this moment in time, the line goes through them not enough power yet Brennan concerned about the trade-offs o Wont join White regardless of what VRA requires, its okay what NY does o For Brennan, the fact that VRA requires the move, its sufficient he doesnt want to go on to the additional language that says you can do this because you wanted damage of race-based decision making o Stands in contrast to the liberal part of the court in the 90s after Brennan retires who see no harm in the Shaw cases absent the claim that theres some cognizable injury, then its not a violation o
UJO v. Carey contd Brennans opinion expresses concern about the preferential race-assignment practices: Worried about the group. These actions could end up harming the supposed beneficiaries, either intentionally or unintentionally. [Student Q. re: Crown Heights Riot. That this riot occurred 14 years later may provide some evidence that these practices lead to a hardening of racial/ethnic lines can harden and lead to enmity. EK: Unlikely that theres an causal component here. But interesting thought that UJO can lead to insularity.] Perhaps there is an injury when being treated as a filler group and Brennan is aware that there is something wrong here even though the others dont see it.
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Shaw v. Reno Shaw was part of a group of cases that exploded trying to handle this issue; messy and required many attempts by the Court to figure this out. Shaw was argued on the merits 4 times. By the end of the decade, Cromartie provided some closure and the cases have tapered off. [On the liberal side of the Court, there is no recognition of injury for white voters. Simply cant be vote dilution.] N.C. had an AA population of 20% but dispersed geographically throughout the state. The A.G. objected to only 1 M-M district out of 12. The DOJ requested an additional district. N.C. responded with District 12 to get preclearance, which wasnt what the DOJ wanted, but N.C. wanted to protect an incumbent. The district is clearly weirdly shaped. But unconstitutional? White voters in District 12 (and others) sue. Their claim is not vote dilution. Instead its an argument that its so
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(and others) sue. Their claim is not vote dilution. Instead its an argument that its so race-conscious that it has to be unconstitutional (e.g. Gomillion). OConnor agrees in some respects. She says that not all race conscious districting is an issue. But when the district is so irregular on its face, an EP claim can follow. Need to make sure that this is not simply segregation. Need to prove that there are some traditional districting principles at hand (compactness, contiguity, and respect for political subdivisions). Could be political apartheid? Her view of injuries: 1. Treating race classifications as essential creates social stigma (echoes Thomas here). Could make racial bloc voting worse. 2. There is also a representational harm. When a district is created to allow a candidate of their choice, then maybe this representative will ignore the minority race in the district. 3. There is an expressive harm: shes concerned that this is a view that people of the same race think alike All of this is reviewed under the motion to dismiss standard. It survives; there is a claim here. OConnor just opens the door for the argument to proceed. How to understand this with regard to UJO? Perhaps the district in UJO just isnt weirdly shaped enough. But many of the elements are the same. In UJO, no stigma and no injury. Whats the stigma? In Shaw, they see a stigma. This isnt just a white/black issue. Everyone in district 12 is subject to the stigma for being put into it. [Crazy wrinkle that people residing outside the district dont have standing to sue. EK thinks this is bizarre.] This is Brennans concern being formalized into doctrine. In 1977, the Court was comfortable with the view that race-based classifications are not stigmatizing. But by Shaw, there has been a host of E.P. doctrine, e.g. Croson (1989). So then here, the treatment of race is not benign, in part because it is the predominant factor being used. Nature of the injury is different. No undue burden on Hasidic voters in UJO. This has shifted. OConnor writes that adequate representation is not the concern. Instead, the right is to not be segregated by race. This is an analytically distinct individual right. Cant be in a district that can only be explained by race. Weird result that crazy shapes are suspect? Why should that matter? Well, crazy shape is just the signal. Its pointing to the failure to apply compactness, political subdivisions, etc. Whats the injury? This is regarded as an expressive harm. The social meaning of governmental action is important. Public Policy can violate the Constitution because of the social values that it conveys. When it uses race in a way that subordinates all other values, it is an act of reductionism that elevates race improperly above all else. This gets clarified further by OConnor in Miller. Under H.W. Bush, the DOJ denied preclearance to Georgia N.C., etc. because black voters werent well enough represented. So then should we give the states a pass because they are trying to fulfill their obligations under the VRA? There are now the competing pressures between the VRA and the EPC. But in all of these cases, the Court says that the state has very narrow discretion. Whatever the VRA requires, it doesnt require something that looks like District 12. It needs to satisfy both VRA and EPC to avoid a Shaw injury. Early cases say that strict scrutiny applies, but the compelling state interest was somewhat vague. Gets filled in with the VRA in later cases. This only works if the VRA actually does compel this interest though. The four in dissent just dont see the injury unless the white voters can say vote dilution.
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Shaw v. Reno and partisan gerrymandering Indication that something is amiss, but no clear delineation of what is was. Following the case, about distilling harm rule is that when state
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Following the case, about distilling harm rule is that when state predominantly uses race over traditional districting principles, excessive use of race and violates EP. In Miller, court steps back from shape shape does not demonstrate violation nor is it necessary to find a violation, but can be probative of bad intent. After district court found that lines were necessitated by the VRA, after back to SCOTUS, on same day as Bush v. Vera, held that VRA can not be a compelling reason to violate EP and draw these lines (Shaw v. Hunt). Section 5 did not require the drawing of an additional black district to avoid retrogression, DOJ was wrong. DOJ found an intent-based failure to draw an additional district, but doesnt count as retrogression.
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Notes ont eh Substantive Development of Shaw: Race Consciousness Per SE or Excessive Race Concisouness Miller v. Jonsons (1995) Easley v. Cromarties (Breyer 2001)

In redrawing a district, District Court found that the state predominantly used race (kept out white population blocks). Previously, Hunt v. Cromartie, SCOTUS told North Carolina to have a trial on the evidence. SCOTUS disagrees, clearly erroneous. Thomas dissents and says this is de novo review, not clearly erroneous. Court says Shaw is about extreme caution and deference to the legislature (really?), Breyer is basically rewriting the rules. Argues that its about party and not about race, disagrees with the trial evidence. If its party and race, this redistricting not a problem. How is this different from the harm in Shaw? How is grouping by race different from grouping by party if the results in the same? Is the expressive harm/stereotyping really different? Race was considered, but didnt predominate still about party. Holding to win, need to show that legislature could have achieved its legitimate objectives (protecting the party) by another means consistent with traditional districting principles that would have resulted in a significantly greater racial balance. Easley was the last of the Shaw cases why? Everybody learned how to say party instead of race, and that means nothing triggers the doctrine. Expressive harm is about the process and the record and not the experience of voters, so as long as you change the process, doesnt matter if the outcome is the same. LULAC v. Perry is the only subsequent Shaw case only Scalia does the Shaw analysis because the rest of the justices are dealing with Sec. 2 dilution claims.
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Redistricting and Representation


Tuesday, November 13, 2012 10:55 AM

Tuesday, Nov. 13: pp. 877-883, 770-772, 777-779 Notes: Danny Lewin, Dana Lovisolo Wednesday, Nov. 14: pp. 788-817 Notes: Alex Malson, Christy Martenson Thursday, Nov. 15: pp. 819-839 Notes: Anne Elise Martin, Marguerite Moeller

Partisan Gerrymandering

Partisan Gerrymandering Bottom line all fine, at least under the Constitution. Legislatures and states can deal with it, but not for the courts. Reynolds v. Sims hope that one person one vote would help stop this never materialized. Questions: Should partisan gerrymandering be actionable? (yes) Under which clause (republican form, EP, 1st Am.)? (who knows?) If so, what violates is? (who knows?) Whats the standard? (who knows?) OConnor and Scalia thinks not something that the Court can deal with.
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The incomplete protection of one person, one vote and the emergence of claims of political vote dilution Gaffney v. Cummings (White 1973)

Bi-partisan gerrymander everybody gets together and divide up the seats roughly equally. Challenged by independent voters. Nobody cares what those independents think anymore (Nader v. Schafer-ish), district court agrees EP violation. Court says no invidious discrimination because trying to achieve political fairness, considering politics when districing does not violate EP. Dont have to keep politics out of mind when redistricting. Doesnt mean all political gerrymandering is immune from review, but needs to have some fencing out from the political process or invidiously minimizing somebodys political power (but not found here re: independents). Funny shapes dont matter that much could be weirdly shaped to prevent incumbents fighting each other. Compactness or attractiveness are not independent constitutional requirements. Seems that shape only matters re: suspect class/race, independents dont matter. Shape is an indication of intent, and here the intent is about party, which is permissible.
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Equal Proteciton Cosntraints on Political Gerrymanders

1. Partisan GerrymanderingHow would you fix it? 2. Gaffney v. Cummings a. Discriminatory intent is clear: intentional divvying up of seats among
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a. Discriminatory intent is clear: intentional divvying up of seats among Democrats and Republicans i. We look at compactness and attractiveness as a basis to infer intent, but intent is undisputed, so they arent relevant here 3. Stevens Concurrence in Karcher v. Daggett a. 3-part test to think about partisan gerrymandering i. Adverse impact on political group ii. Objective indicia of irregularity iii. Does state have convincing evidence of a good reason to have this b. BUT Stevens test doesnt go very far 4. Davis v. Bandemer a. Claims of partisan gerrymandering are justiciable, but the Court doesnt give any real guidancewe dont know what will violate the Equal Protection Clause b. Indiana Democrats are claiming unconstitutional vote dilution, claims an entitlement to more than what theyll get under the plan thats drawn c. District Court sustains an Equal Protection Challenge; SCOTUS reverses but affirms justiciability of partisan gerrymandering claims d. OConnor says we should not be doing this (concurrence) i. Strong 2-party systems through which our democracy finds expression; 2-party system keeps our democracy going in an orderly way 1. So, our parties need to be able to draw districting line; this is a political affair 2. This argument sounds like the Courts response to anti-fusion laws in Timmons 3. OConnor is offering an overt political theory ii. Worried about proportional representation (no right to proportional representation) iii. Unnecessary for Court to step in and regulate this, because political gerrymandering is self-limiting 1. If party gets too ambitious and spreads party voters to thin, then the party will make its own incumbents vulnerable to competition 2. Is OConnor right about this? a. Underestimates the abilities of the parties b. Lots of partisan gerrymandering after the 2000 census, but Democrats take back the House in 2006so, does that mean that OConnor is right? i. Only 13% seats change hands, only 55 competitive races; so maybe the Democrats should have gotten even more seats 3. Michigan tends to be more Democratic than Republican, but state government is controlled by Republicans a. 15 congressional seats, but Democrats can only win 5 of them, even though the state went for Al Gore by 5 percentage points b. When this is challenged, the Court says that a future Democratic governor can veto the plan c. In 2006, Democrats take control of the U.S. House, but Michigan Republicans retain their seats and the Republicans admit they do so due to successful partisan gerrymandering (and appear to be proud about it) e. Whats the constitutional injury? i. What does it mean to be a part of the political process? Is there
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e. Whats the constitutional injury? i. What does it mean to be a part of the political process? Is there something to be said for competitive elections? ii. At some level, plaintiffs are alleging vote dilution by party, but theres no clear constitutional hook (everyone agrees that the Constitution doesnt provide a right to proportional representation) f. Standard: unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voters or a group of voters influence on the political process as a whole i. No unconstitutional discrimination on these facts ii. Critics say the Court wont find a violation on any facts under this standard iii. E.g., Badham: Republicans are doing just finedespite Democratic gerrymander; governor is Republican as is the President iv. E.g., Martin: only time a partisan gerrymandering claim wins, but the decision is withdrawn because theres election that suggests that the court was wrong
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Davis v. Bandemer and Recognition of a new Constitutional Claim Redistricting in the 2000's Partisan Gerrymandering Vith v. jebelirer (Sclaia 2004)

a. Pennsylvania: voters pretty evenly split between Republicans and Democrats; Republicans control state government and redraw districts such that Republicans will win 6 of 19 seats b. District Court: no partisan gerrymandering; easily finds intentional discrimination, but no evidence of discriminatory effect under the Bandemer standard (Democrats can register, vote speak out, etc.) c. Why does SCOTUS take this case? A few options i. To give the constitutional standard some heft (no one thought theyd do this) ii. To overrule Bandemer (this is probably why SCOTUS took the case, but then Justice Kennedy blinks; LULAC v. Perry is going on at the same timeone of the claims is that you cant re-redistrict for partisan reasons) iii. To issue a 4-1-4 split decision that makes no sense d. Isnt Scalia totally right? i. Seems to suggest that rampant partisan gerrymandering raises a constitutional issue, but theres nothing the courts can do about it ii. He seems to be right about the other opinions
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Partisan gerrymandering (PG) sounds like Baker: voters somewhere else are getting more influence than I am based on where the lines are drawn Whats animating the inability to find a rule: o Informed by 1P1V issue. They made that up in Reynolds. People feel uncomfortable about that. That leads to resistance to making stuff up again here in PG context. o Bandemer directed us to outcome. Even worse than 1P1V. (There are process-based ways to target PG: e.g., Stevens three-part test.) The Rehnquist court constitutionalized whole parts of the democratic process.
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The Rehnquist court constitutionalized whole parts of the democratic process. o E.g., Bush v. Gore; California Democratic Party; Shaw v. Reno o So why arent they jumping in on PG? Is Stevens rightshould we just apply Shaw v. Reno to partisanship? Just like predominant consideration of race should require a more rigorous review, so should predominant consideration of party. o No Race is different than party. Different order, different magnitude. Race freaks people out. But when you draw lines youre thinking partiesthats just what you do. Were comfortable intruding in states when they do race. Are we comfortable intruding in states when they do party? Scalia: 1. Administerability. Were looking statewide, not singledistrict. How will we figure out if party predominated statewide? o Shaw was a disaster. The only way to figure it out was to say party not race. If thats the exit strategy there, we cant then say theres a problem with party. That gets us back in the problem. The only way we solved the Shaw problem is by making it impossible to pay special attention to party. o We have no rule. 2. Race is different. Political redistricting is contemplated in Constitution, but segregating by race isnt lawful. o Kennedy makes a similar point in the opinion. o But you can consider race in the districting! Its not an impermissible criteria in redistrictingonly in certain circumstances. Why cant we say and so too with parties. Scalias wrong to draw categorical lines. (But we can still say race is distinct from parties.) o Yes Party means that weve gotten together and believe something and the state is going after us for our beliefs. That sounds in 1A. What would the CI be? Is the harm in Shaw really captured by Cromarti? Theres an entrenchment problem that sounds in the 1P1V problems. Congress wont fix it for the same reasons as Colegrove. Ct knows how to do it b/c they do it for race. Why cant you just tell the parties do go out and do the work. Get people on your side. Stop looking to the Constitution. Get out your voters yourself. Create new rules. Make a districting commission. If we make up a constitutional right here, whats the principle? Whats the standard? Kennedy sees some entrenchment/anti-trust problems throughout the cases. What if we said were really objecting to the internal stuffthe stereotyping, datamining all the possible votersand we make that impermissible. We cant figure out the big goal, so we try to get at it through a more process-oriented solution. Loretta Sanchez (D-CA) o Says that she paid $20k for the redistricting line to secure a safe seat. Thats nothing compared to the $2 million she spent to win. o This statement doesnt sit well with us. Makes it seem like voting doesnt matter. Sees no difference between the $2m and the $20k. The money goes to win both ways, and its only the outcome that matters. What do we do about it?
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o What do we do about it? Vote her out. Not showing adequate respect to the voters. Something to the Shaw v. Reno message: tone it down. Use some decorum and behavior. Just dont talk about the $20k. Tone it down a constitutional standard of the court. But thats bullshit. Larios v. Cox o Dems are drawing lines so that Dems are going to win. Leave Rs out of office. o Could use plans with no deviation, but they go to 10% deviation anyway. They can do that b/c for state/local districting plans, theres more discretion. (Gaffney) o Rs are in the packed districts. Dems are spread thin. Do it w/ 1P1V. o Republicans sue. Allege PG (Bandemer). They lose that claim. o But court sees a 1P1V problem: the Karcher policies justifying population deviations werent present. All youre doing here is using the principles when they protect Dems. Thats abusing the safe harbor. You never even tried to get more 1P1Vyou cant deviate that much. You need a good reason. This is part of tone it down. o SCt denies review. Scalia is screaming: party is an ok reason to district. Stevens: well, I think what DistCt did is ok. If we dont do it via PG, lets get at the problem through 1P1V (or VRA). o Reactions: Tone it down is a thing? Not good for us as voters to talk this way. You can go Warren court, or manipulate other doctrines, or voter, or make your peace with this. Dist Ct is onto something: when our political leaders are pursuing something that doesnt sound in policy, that only sounds in power grab, isnt good for us. A belief that its all rigged has a bad effect on us. We dont share common experiences anymore. The internet! Maybe the focus should be not on who wins the election, but on what the right to vote means. What it means to cast a ballot. The constitution says something about a political process that allows this kind of structure. Shouldnt structure the system to ensure we dont have access to a competitive junction. Deliberate pursuit of anticompetitive structures should be a disfavored districting criteriarequires an articulation of another reason for doing it. This argument isnt going anywhere. Independent districting commissions arent representative parties something wrong with that too. Do we just need to make the Baker jump? Can court do it? Should it? Will it? When VRA goes down, maybe it invites a discussion about how the political process should be regulated? Congress cant do nothing in response to VRA going down.
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Bipartisan Gerrymandering Endless Redistricting Nonjudicial Solutions

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Money and Politics


Tuesday, November 20, 2012 11:25 AM Tuesday, Nov. 20, pp. 332-334, 340-344, 349-361, 361-370 Notes: Brittany Nash, Brett Novick Wednesday, Nov 21: pp. 373 (starting at note 7)-393 Notes: Ashley Richardson, Josh Ronnebaum
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Buckley v. Valeo and the Statutory Framework

Katz campaign finance is hopeless Intro Elect a lot of people in US o Not all partisan races o Need $ to run Publicity, media, navigate logistics, let voters know who you are Each campaign, $ spent increases Three phases of campaign finance regulation (Katz fourth phase now after Citizens United) o Stage 1 McKinley campaign excepted contributions from corporations Corruption concerns o Contributors getting special favors Teddy Roosevelt admin 1907 Tillman Act bans banks and corporations from making a money contribution in connection with any federal election Extended to unions in 1947 o Stage 2 Watergate era 1974 FECA / FEC Katz issue is word contribute Put in place spending ceilings for candidates o Stage 3 2002 Bipartisan Campaign Reform Act Meant to close FECA/Buckley framework loopholes Going after soft money Going after issue ads Katz initially upheld in OConnell, struck down in Citizens United
Continue to operate today under Buckley framework o Issue majority of court doesnt like it today, but no agreement on how to scrap it Katz justices write in every case, always complaining

Buckley v. Valeo 1976 FECA o Public funding for federal elections o Elaborate disclosure requirements FEC oversees FECA, elections
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FEC oversees FECA, elections o Katz inability to do anything constructive o Procedural restraints by Congress to limit its power This case challenging constitutionality of FECA o Katz no one likes this decision Katz for people who like campaign finance regulation, question is if to work w/in framework of Buckley, or root for its demise Buckley rejects equalization as goal of govt regulation o Katz maybe only justification, but Buckley says this is no good 2 justifications given by Court quid pro quo corruption and appearance of corruption Quid pro quo corruption o All of a substantial interest in preventing $ being given to candidates so as to get something back o Concern that quid pro quo undermines system of democracy o Court doesnt no scope of just practices, Congress made no specific findings, but disturbing examples in 1972 Appearance of corruption o Court concern is of equal interest to quid pro quo o Fact that $ having this effect, even if it doesnt, undermines public confidence o Something we know is going on, Congress can so act Katz much discussion about how appearance of corruption undermines confidence o In Citizens United, Kennedy debunks this no evidence, who cares o Comparison voter fraud / voter ID Court seems quite comfortable in absence of evidence and relying on how we all feel to justify Voter ID o Thus, certain practices make us feel about democracy, dont know how to measure this Katz contradiction to say no Voter ID laws since no actual voter fraud, while also saying that there needs to be federal campaign regulation due to appearance of corruption Court 1A issues w/ contributions and expenditures o Draws line b/w these 2 Court strikes down expenditure limits by candidates o Reduce speech, way of issues o This form of money is speech apply strict scrutiny to regulations that limit how much $ spent Court ok w/ contribution limits o Only marginally affect ability to speak o Money demonstrates that you support, but not why you support No idea on basis, issues o Political speech not restricted here o Hold $1000 contribution limits for federal elections as ok Note Buckley also upholds reporting and disclosure requirements o Deters corruption / appearance thereof Upholds public financing Independent expenditures are ok o $ shifts here see Colorado Republican cases

Katz no idea what regime Congress acted would have looked like, what it would have achieved o Court basically created its own regime, altered Congresss regime After 1974, Court is primary regulator o BCRA was tiny blip where court not regulator Equality rationale o Does Reynolds apply here? o Canada spending limits to ensure equal representation Argument on p. 348 concern isnt corruption, but that certain groups have greater
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Argument on p. 348 concern isnt corruption, but that certain groups have greater influence because of their greater wealth
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The Concern with Corruption as a Basis for Regulation Contribution limits Nixon v. Shrink Missouri Government PAC (Souter 2000)

State law puts contribution limits, calibrated for state offices o Law b/c dormant b/c even more severe state ballot initiative Struck down by 8th Cir. state law at issue here Whos upset? o PAC, Freedman wants to run for state auditor, PAC wants to contribute more $ to him than state law allows Argument that need $ to get out message Claim 1A, 14A free speech, association, EPC DC upholds it based on Buckley 8th Cir. reverse and enjoin Souter reverses 8th Cir., parties didnt ask to overrule Buckley, no reason to here Why does P think they can strike this down? o System isnt working soft money, intervention ads, etc. o Evidence question strict scrutiny on state, need to actually show that there is corruption or appearance of corruption Burden on state to prove this 8th Cir. felt state didnt reach this burden o Katz 8th Cir applying higher level of scrutiny than Buckley Souter corruption and appearance of corruption are legitimate interests o Dont need more evidence Amount of evidence needed based on how novel Buckley had evidence then o Evidence here state senator quote, newspaper article, statewide vote o Upheld contribution limits before in Buckley, can do it here Issue academic studies that no one concerned about this o Souter (1) Not paying attention to it (2) Other studies suggest the opposite Souter nothing different going on in Missouri that Buckley wouldnt be applicable Argument that Friedman cant run o Souter hes just one individual, doesnt by himself make Buckley unconstitutional Katz end of Souter prevent activist court, only decide issues before us

Stevens money is property, not speech Breyer C interest on both sides o Protecting against corruption vs. freedom to get $ in campaign Cant just say strict scrutiny b/c of both sides o Money isnt speech, but it enables speech o Katz Breyer loves regulation, doesnt like strict presumption against regulation by dissents Katz Stevens, Breyer, Ginsburg all want more regulation Kennedy dissent overrule Buckley o Buckley compromise sets stage for covert speech

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Forces political speech underground o Soft money can pour unlimited amount of money into political parties, PACs o Issue advocacy Katz as long as you dont say vote for, then ok o Is Kennedy causally correct? Certainly true that under this framework, money spent differently Katz doing it through backdoor o Kennedy issue w/ having to spend soft money to get into office and defeat soft money Thomas dissent o Protect all types of 1A speech, political speech o Political speech important, contribution caps going against this speech need strict scrutiny o Want to speak through candidate, not on own o Strict scrutiny, not narrowly tailored to prevent corruption Breyer concur / Kennedy dissent system is a mess o Breyer evaluation C of system based on if electing well Kennedy saying something similar o Katz maybe unavoidable since regime created by court
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Party Spending, The Contribution/Expenditure Distinction, and the Anti -Corruption Rationale Collorado Republican Federal Campaign Committtee v. Federal Eleciton Commission (colorado Republican I) Breeyer 1996)

Republican party buys attack ad, challenging likely democratic candidate (not yet nominated) FEC challenges this o FECA has cap on contributions and expenditures by political parties o Party expenditure provision parties may make expenditures in connection with the general election campaign of candidates for Federal office Limited up until a certain amount Here - $103k Issue Colorado Republican party already gave $ to national party Dem party cant do attack ad, already spent $ o FEC agreed with democrats treated attack ad as contribution DC/10th Cir agreed w/ FEC o Issue for SCOTUS as a matter of law, is every time that party spends $, is it a coordinated expense
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Party Spending, The Contribution/Expenditure Distinction, and the Anti -Corruption Rationale
Why does Katz hate campaign finance? Not sure what the goal is Katz doesnt like the lopsided result of Buckley, and policing the line between expenditure and contribution doesnt help Policing against corruption? What constitutes corruption, and what doesnt? And where does influence speak to candidate responsiveness, rather than to corruption? Demoralized voters o This is a silly worry, not a good reason in general to limit First Amendment freedoms

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Amendment freedoms What should we be worried about?? What are the real concerns with unrestricted political expenditures/contributions, and to what extent should these be limited? o Kennedy: this law has pushed speech underground: covert speech, but his solution would abandon the FECA altogether Corruption? Governance problem? Differential access to representative government? Drowning out of voice, lack of responsiveness to the little guy? Candidates devoting an unreasonable amount of time and energy to fundraising? o Candidate responsiveness

Making candidates accountable to their income of cash


o Appearance of corruption

skews their decisionmaking and the results of legislation

Does disclosure take care of these risks? Or is full disclosure not enough to
get to the actual risks? o What disclosure could not address:

drowning out / pricing out of groups with differing opinions the outcome of bad / ill-informed election results
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Collorado Republican Federal Campaign Committtee v. Federal Eleciton Commission (colorado Republican I) Breeyer 1996)

The expenditure limit in the statute had been reached, and Colorado Republicans wanted to exceed this amount But here, the expenditure is regulated as a contribution o The statute recognizes a line between independent and coordinated expenditures Independent expenditures not subject to the limit Only coordinated expenditures qualify as a contribution and are limited by statute Kennedy concurrence o No meaningful difference between coordinated/independent expenditures BOTH implicate core First amendment rights Stevens dissent o NO meaningful difference between coordinated/independent expenditures BOTH should be limited Hard and Soft money

amount of money Effect of Buckley

Hard money money under control of the candidate Soft money everything else spending on political parties, issue advocacy o Soft money is NOT regulated, and was an easy way to spend large

Both anti-Buckley wings hate the Buckley holding, but for different reason But both agree that there is no meaningful distinction b/t contributions and
expenditures
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Notes Colorado Republican II

FEC v. Colorado Republican Federal Campaign Ccomittee (Colorado Republican II 2001 Souter) Thoams dissenting
Is it unconstitutional to limit coordinated expenditure o DistCt strikes the statute down as UnConst. The AppCt held that there was no good difference b/t coordinated/independent holds that both are an unconstitutional burden

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Majority (Souter): o The coordinated expenditure provision is constitutional, does not interfere with the First Amd rights of the parties It is justified under something less than a strict scrutiny standard o Argument that party cannot function without coordinated expenditures

Souter disregards this argument, because the political party


had been thriving for decades before coordinated expenditures help? How is this limitation closely drawn If this WERENT capped, this would be open door to circumvent the contribution limitation If the party can make unlimited coordinated expenditures, much larger contributions by individuals to the party will be allowed, by earmarking those expenditure for a particular candidate, despite the individual contribution limitations But is there a legitimate difference between independent and coordinated contributions? Cant independent expenditures also be provided to benefit a particular candidate, even without earmarked contributions? The court does not address this question here. Is there a difference in analysis between PAC and parties? o In theory, the analysis should be the same
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o Prevention of the corrupting influence on money? How does capping

Notesw Spending on Initatives and the Anti-Corruption Rationale First National Bank of Boston v. Bellotti (Powell 1978)
Bellotti is back in the syllabus because it is so quaint and because its heavily relied on in Citizens v. United Concerns legislation under 8, which prevents corporations and banks from making expenditures on political issues which are not materially affecting their property, business or assets. The statute also states that individual tax issues are not materially related to business functions. o Here, the issue was a proposed const amendment for a graduated income tax Issue: Not whether corporations have First amendment rights but whether 8 abridges core political speech/expression that is protected by the 1s t amd. Held: o The statute is a novel gloss on first amendment protection. First amendment protections do not depend on the identify of the speaker What was the statute meant to protect against: state interests o Loss of confidence in the integrity of the system o Drowning out the voices of shareholders whose view are different from management Loss of confidence/risk of corruption? o Powell: There is no evidence, no showing of actual of corruption, nor evidence of diminished confidence Even if such evidence were available, there is no equal guarantee that all voices should be heard equally Here, there is no risk of corruption, because the issue does not concern an individual candidate, but rather a voting referendum, and referenda are merely laws that cannot be swayed The corporation can put forward ideas regarding a referendum, on an issue of common concern, with no risk of corruption But is this correct?? Doesnt the overwhelming influence of money nonetheless cause votes to lose confidence in the integrity/independence of the system, especially when the same corporate influence is responsible or getting the referenda on the ballot? o Risk of bad law? perverse consequences?

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o Risk of bad law? perverse consequences? o Problematic that the campaign are based on misinformation and fear
mongering, when voters are imperfectly informed of the issue

o But then again, shouldnt the responsibility on the individual voter?


Rehnquist dissent: o Corporations are merely legal entities, and should be not entitled to the same first amendment guarantees as individuals o Corporations do not have self expression in the same say that individuals do o The state should be able to prevent corporation from using its extensive resources from

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quality and Liberty in Politics and Elections Austin v. Michigan Chamber of Commerce (Marshall 1990) Notes and quesitosn (thorugh note 5) Federal Election Comm'n v. Massachusetts Citizens for Life

There are two defensible extremes to approach this material o Legislature should be allowed to do almost anything they want o There should be almost no regulation of this kind of speech at all o The court has not taken either of these positions. Professor Katz is not persuaded by arguments about the corporate form and why that matters.
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BCRA: the Second Round of Reform and Cosntiutional Challenge (Bipartiasan Campaign Reform act of 2002 (McCain-Feingold ) Title I: Resittions on plitical Party Soft Money Title II: Regulating Electionaring Comunication MCConnell et al. v. Federal Elction Comission et al(2003 Stevens and O'Connor) Soft money Issue advertisign Senate committee investigatiion Neew FECA 323(a)'s Restrictions on National Party Committtees Defintion o f "Elecitoneering Communication" Prohibition of Corproate and Labor Disbursemetns ofor Elecitoneering Communications

BCRA passed in 2002 challenged very soon after in this case The court provides a history of campaign finance regulation before turning to specific provisions Title I of BCRA o FECA 323(a)-national parties may not deal in unregulated funds The goal of this rule is to return to the scheme approved in Buckley If the national party touches it, it turns to hard money Takes national parties out of soft money business o Government defends as needed to prevent corruption and the appearance of corruption. Government interests look like the same interests as in contribution limits in Buckley. The idea that soft money could cause corruption or the appearance of corruption is not implausible. Fear that candidates might be too compliant to the wants of donors. Here, corruption grows to include access and responsiveness and allows congress to regulate on that basis. Were not just talking about switching votes, were looking at
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Were not just talking about switching votes, were looking at broader influence. [In Citizens United the court tells us the only type of corruption were worried about is quid pro quo.] o Justices dont apply strict scrutiny because this thing looks like a contribution limitation, not an expenditure limit under the Buckley scheme. Because theres no gross limit on expenditure, this is a fair regulation of contributions. o The majority upholds this regime because it does not extend beyond the limits that were okd in Buckley. Title II of BCRA-Electioneering Communication o Creates new category of federal campaign activity o Electioneering communication is put in place to deal with the issue advocacy problem Buckley sustained FECAs regulation of independent expenditures in disclosure Court recognized that it was open ended as to what independent expenditure was subject to disclosure So to avoid vagueness it limited disclosure to express advocacy. Express advocacy was described by special magic words. In MCFL the court used Buckleys language on express advocacy in application of FECA and lower courts ran with that and said that FECA did not apply to issue advocacy (defined by the magic words) The result was that unregulated issue advocacy blew up. o In response BCRA tried to close the issue advocacy and Union and Corporate loopholes on issue advocacy campaigns (Unions and Corps can not use treasury funds to participate) by adding the new category of electioneering communication which sought to include both issue advocacy and express advocacy These limits were time limited Applied to advocacy clearly identifying candidate. So this regulation was challenged. BCRA exempts non-profits from electioneering communication so MCFL is never challenged here. BCRA has two kinds of limits Disclosure o Court is very nonchalant about upholding this type of regulation [Katz thinks this is overly nonchalant] Money o Corps and Unions cant spend treasury funds on electioneering communication o Court says that precedent of regulating corporate funds is firmly planted in tradition [This is overturned by Citizens United] o Theres no vagueness problem so this is constitutionally ok. [Katz thinks this is bad first amendment analysis.] o Court says that distinction between issue and express advocacy was statutory construction in Buckley rather than a statement of constitutional principles. [In Citizens United they change this and say it is constitutionally mandated] Theres a broadening of the anti circumvention value This analysis places more emphasis on democracy promoting features of these laws, rather than first amendment o [This all changes in Citizens United] Theres a lot of deference to Congress in this case. Expands what is meant by corruption and the appearance of corruption. Includes responsiveness, access, open doors, etc. Rehnquist Has a complaint about standing
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o Has a complaint about standing o Rehnquists analysis of first amendment in the underage contribution section is more traditional than the analysis in the opinion on electioneering communication. Scalia
o Calls this incumbency protection o Scalia is saying that these regulation restrict first amendment rights After McConnell the court changed. Rehnquist died and OConnor retired. Wisconsin Right to Life v. FEC opened the gates to as applied challenges to BCRA
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Randall v. Sorrell (Breyer 2006)

Randall shows how much the court has changed since McConnell. VT state law limits how much can be spent on campaigns. o VT argues Overrule Buckley Court uses starre Decisis and upholds Buckley. Limit Buckley VT argues that something ahs changed since Buckley and that now candidates spend too much time raising money. Breyer says Buckley didnt consider this, but that doesnt change anything. Court applies Buckley and strikes down expenditure limits They apply scrutiny to the contribution limits
Corporate and Union Election Spending Revisited Citizens United v. Federal Election Comission (Kennedy 2010)

Facts o Citizens United = nonprofit corporation Make movie aobut Hilary Clinton and want to pay on demand to make it available to viewers for free and want to run ads to promote movie with general treasury funds NOTE: vehicle to challenge campaign finance laws; test case Movie ads constructed to meet BCRA definition of electioneering communication Procedure o CU sues FEC seeking declaration that BCRA is unconstitutional as applied to them these provisions as applied to us are unconstitutional You cant stop us from using this money to show this move now o Argued twice In first argument CU argument: o Were more like MCFL o And this isnt the functional equivalent of express advocacy (Davis/WRTL) o And the whole thing is Unconstitutional Alito asks: what about books? o And the case is lost here, when lawyer says yes, this leads right to book banning Answer should have been we dont understand books to be issue ads; theres no record about books in this leg history; thats not presented here After first argument, Court came back with order for more arguments on new question: should we overrule Austin? Holding: 441(b) is a ban on speech violation of 1st A unconstitutional & struck down Chilling effect on corporate speech
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o Chilling effect on corporate speech Purpose is to silence certain voices Dant limit speakers speech based on speakers wealth (Davis Millionaires Amendment) RULE: Cant discriminate based on the speaker ISSUE: what about foreign independent expenditures? o Could cite CU and say cant ban those sorts of expenditures o Overrules Austin Notes that government didnt even try to defend Austin Katz: This is because they had to back away from book burning so instead said dont worry about; FEC has never done anything with books Katz: not a surprise that government wasnt relying heavily on Austin at this point (post Randall, etc) Takes anti-distortion justification off the table; no longer enough to support these restrictions Cant use distortion/equalization to justify these regulations o The advantages that corporations get are irrelevant Everybody uses money theyve made to do this; nothing special about corporations Argument that BCRA exception for media shows weaknesses in the law How could the uniqueness of corporations be the issue, when youre ok treating some corporations (media) differently? AND that you need this excpetion shows that this law is scary (bad) o Severely narrows anti-corruption interest down to core quid pro quo corruption Anti-corruption interest is not sufficient to displace the speech Reading of Buckley While Buckley identified a sufficiently important governmental interest in preventing corruption or the appearch of corruption, that interest was limited to quod pro quo corruption. The fact that speakers may have influence or access to elected officials does not mean these officials are corrupt o KATZ: disingenuous! That wasnt the law thats his take on it over the last decade The Court hasnt this before; it was his McConnell dissent! Cant write opinion as if this was the state of law o Should have to announce what youre doing o RULE: access doesnt equal corruption; cant regulate to get at access Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption Independent expenditrues dont lead to corruption Role of shareholders Overrules any earlier worry about idea that shareholders would be burdened by corporations ability to speak in a way they disagreed with o Stevens: Doesnt tell us when a corporation may engage in electioneering that some of its shareholders oppose Stevens (dissent): o This is not a ban on speech Discussion Sweeping opinion Katz is mostly appalled at the aggressiveness of the court
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o Sweeping opinion Katz is mostly appalled at the aggressiveness of the court Taking an as-applied challenge to just go nuclear Getting rid of far more than necessary to deal with these specific facts Could have reach CU holding a dozen ways by distinguishing rather than overruling Austin BUT also distraught at the substance Deeply troubling that independent expenditures cant give rise to corruption o Caperton v. A.T. Massey Coal Co. Facts: litigant basically gets his judge elected through massive donations & judge wont recuse himself Holding (Kennedy): that judge had to recuse himself because of appearance of impropriety KENNEDY! How does he distinguish Citizens United where access/influence isnt corruption? o Must be those are judges and thats different? Or that was about recusal and not about contributions? TAKEAWAY: Seems inconsistent with logic/feeling in CU o NOTE: Roberts concurs Who had given us restraint and facial challenges o Role of Belotti Katz: strange perversion of Belotti that case made very clear that we were talking about referendum, not candidates Belotti took a measured, narrow approach to when you cant regulate this speech (cant regulate independent expenditures on referendum because we dont see a corruption interest there) o NOTE: contribution limits are still good law; but Katz feels like theyre besides the point because of what can be done with independent expenditures RULES o Overrules Austin o Cant discriminate based on speaker; identify of the speaker doesnt matter o Independent expenditures dont give rise to corruption or appearance thereof Which really means that there cant be limits on independent expenditures because big First A burden and without corruption as a legit interest, there is no compelling interest to pass strict scrutiny
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Public Financing Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (Roberts 2011)

Background o Davis v. FEC Facts: BCRA provision that says if you run against a self-funder, you can collect more money from every contributor Legislative history of Senators talking about incumbency protection impact of this rule Posture Government: law was constitutional because it aimed to level electoral opportunities for candidates of different personal wealth (sounds like equality) Holding (Alito): Provision is unconstitutional imposes a substantial burned on the exercise of the First A right to use personal funds for campaign speech, whose burden was not justified by any governmental interest in eliminating corruption or the perception of corruption Rejected governmental interest in leveling the playing field or suppressing a claimed disproportionate influence of wealth Different candidates have different strengths. Some are
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Facts o AZ law: once a privately funded candidate or independent group spends above the cap, then publicly funded candidates gets money to match NOTE: Arizona will pull publicly funded candidate up to 3x the allotment, but private funder can keep going Purpose: not waste money by giving it when not necessary, so start with low lump sum rather than give it all at once Issue: Is Arizonas matching funds provision constitutional o Can AZ do anything about actual corruption where 10% of legislature is implicated in carrying bags of cash? Holding o Court thinks Davis v. FEC (Millionaires Amendment) is controlling o Theres a substantial burden to speech Katz: Wheres the burden? Private funder could have decided to be publicly funded too? Discussion o Comparisons Can disclosure be distinguished from the burden the Court sees here where speaking has the cost of enabling more speech from your opponent? Katz: thats a cost to you by speaking; speaking triggers that you have to disclose What about lump sum pay out? If lump sum were OK, then why cant it be in disbursements? Court seems to see the trigger as the issue; uncomfortable where speech triggers the burden
Arizona Free Enterprise Clubs Freedom Club PAC v. Bennett (2011, continued) o Takeaways No matching funds triggered by spending by self-financed candidate Cant encourage use of public financing in this way o Kagans dissent Katz: this was an easy opinion to write, shooting fish in a barrel. Katz: sees difference of kind between this and Davis Davis: Self funded millionaire has different contribution limit than opponent Here: triggers public funding calibrated based on level of selffunding Doesnt see subsidizing speech as something the first amendment prohibits Campaign finance final points o McConnell Soft money still legal o Sheldon can spend as much money as he wants as long as not coordinating
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o Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions Dissent (Stevens): The Millionaries Amendment quiets no speech at all this isnt blocking or suppressing anybodys speech

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Remedial Possibilities for Defective Elections


Wednesday, December 05, 2012 11:38 AM Wed., Dec. 5: pp. 1115-1138 Notes: Corwin Carr, Erik Choisy Thursday, Dec. 6: pp. 984-988 Notes: Cali Cope-Kasten, Emma Cox

The Federal Interest Decisively Asserted Bush v. Gore (Per Curiam 2000) Rehnqusit Concurring (Scalia, thomas) Stevens dissent (Ginsburg, Breyer) Souter Dissent, stevens and Ginsberg) Ginsberg Dissent Stevens Souter Breyer Breyer (Stevens, Ginsubrg, Souter Katz: on thanksgiving 2000, didnt think anyway Court would get involved state law dispute F: Election Day: called for Gore, then no Nov 8: Bush leading Florida Lead goes down as recount starts Florida Supreme Court: Harris I Harris: whether must accept late county returns from certain counties o Fla law: Different m=provisions: shall be ignored, may be ignored FLA court: may or may not be ignored , conditions do not attach, Secretary abused discretion to accept returns, Court creates new deadline for returns Issues: o When can a board authorize a county wide recount under Fla law o Can you have a manual recount FLA law: if election close enough, do recount of 1% (manual) If error n vote calculation detected in a way that suggest error in vote tabulation, county board can order a manual recount of the whole county FLA Supreme Court: An error in vote tabulation is: Pregnant chads not counted is an error in vote tabulation Fla Court: if 1% sampling shows this, can have o Issue: Board county multiple votes due to butterfly ballot confusion Buchanan: I didnt get 3400 votes in Palm Beach County WaPo 65% of the voters clearly intended to vote for Gore that was more than enough to win for Gore

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Bush v. Gore I (December 4th 2000): Did not give enough attention to Article II of constitution (court needed federal hook) o Article II: Legislature chooses how electors selected Legislature had laws on the books But here: Courts directing This may raise an issue o So asking Fla courts to think about this Safe harbor o If you figure out before 6 days before electors meet, congress wont mess with it o Court: Fla court should give more interest in legislature choice to meet this safe harbor Katz: SCOTUS is sure the Fla Court is partisian and out of control Gore files recount petition FLA courts: should have included o Various votes from recounts and partial recounts o Should have had other recounts o Need to have statewide recount of under votes, Hold up every ballot in the state that is under voted and see if some real intent Note: at this point, Bushs lead is 154 votes This is what goes up to the Supreme court Saturday December 9th- Scotus issues Stay, enjoining recount, ordering oral argument on Monday, briefing due nowish This ends the election, because once they cancel the recount makes it almost impossible to say oops wrong b/c no more time Rehnquist concurrence (Article II holding, but no majority) Fla Court violated article II by going against legislatures intent/authority Katz: Fla Court did some crazy things Certain votes from certain counties Include all the late tallys Definition of legal vote departing from legislative scheme o Instructions: no chips left hanging o Court: those hanging chads, pregnant chads, can be legal votes Rehnquist: that is not statutory interpretation, by reading fla law like this, do violence to statutory scheme and the scheme the constitution requires (article II) i.e. Fla Court is substituting its judgment for that of the Florida Legislature Katz: note that this view immunizes the state legislature from state judicial review in this respect o Katz: unlikely the framers of the constitution envisioned article II empowering state legislatures like this Tribes: Rehnquist probably not wrong to raise question that judiciary could sometimes go too far in regards to the power of the legislature under Article II o Maybe here within the realm of permissible judicial review o But not wrong to ask the question So Katz and Tribes might disagree and whether there is a federal question. o But if you accept this as a legitimate question, then the critique that this was unprecedented meddling in state affairs starts to fall away o regardless of this point, Katz thinks remedy was crazy

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Katz: Court has deep distrust of other decision makers Political Question doctrine and hwy the court didnt invoke it Katz: read about Hayes Tilden dispute and how that gave rise to the Electoral Count Act Is this committed to another branch: obviously Katz: desire to have GWB elected didnt drive this case, he would have won anyway If recount led to Gore win being certified o Fla Legislature stood by ready to certify electors for Bush anyway o And legislature may be ready to take back vote and elect people o Katherine Harris (secretary of state of Florida) Could have submitted a list of electors for bush to congress Point: if recount, disputed slate of electors o FLA court could not stop competing sets of electors from being submitted o Rule: if a dispute of two or more electors is the proper one, the senate and the house, acting separately, concurrently decide But partisan balance then If two disagree, then the votes of the electors certified by the executive of the state shall be counted: Here: Jeb Bush is executive of state So no way to follow this that Bush wouldnt win o Unless Electorate Count Act struck down So why doesnt court use political question doctrine, avoid appearance of impropriety Deep mistrust of Fla Court Distaste for the Chaos (particularly Sandra Day OConnor) Per Curiam EPC holding (7 justices) Fla Recount procedures ordered by Fla Courts does not satisfy the minimum protection of voters under EPC o No specific standards Katz: why did they use the intent of the voter, standard; Why not more guidance? o Fla Court worried about article II: would violate if set harder standards o So here: EPC and Article II crash into each other, not much the Fla Court could do Tomorrow: is there anything to the EPC violation? Is there a problem with the amorphous intent of the voter standard where ballots counted differently in differently counties?

Bush v. Gore, cont. EPC issue o FL Sct wasnt more specific in determining recount standards bc it would have conflicted w/ Art. II (maybe) P. 1118-1119 lists Scts concerns about FL Scts reqts o Does EPC ruling make sense? Sounds like Reynolds v. Sims unequal weighing (not exactly the same, but bc no suspect classifications, not tiers of scrutiny) Analysis is sort of minimal standards of non-arbitrariness No reason to think lack of standards was part of a systematic effort to benefit a specific person/group of
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systematic effort to benefit a specific person/group of people (like in Reynolds) individualized concern that same ballot wouldnt get counted in one county but would in another o Katz: This isnt crazy as a holding, and not unprecedented (Shaw v. Reno) Q: Why dont diff machines cause the Sct concern about arbitrariness bc not standardized? Is there something fundamentally diff btwn that and humans holding votes up to the light in state-ordered recount? Sct: Not saying states cant use diff technology in diff places, even w/in jurisdictions thats not a prob w/ EPC (per curiam and Souter both say this); the prob is when the diffs look like they might be relevant in state-ordered recount o Katz: Why doesnt this violate EPC? Rehnquiest/Scalia might be less concerned about it bc voters have a way to protect themselves against arbitrariness by following the instructions on how to cast a ballot that counts, whereas in the recount, voters are at the mercy of what a human recounter thinks o Even vague standards might have been fine, but w/ the crazy pictures of people trying to tell intent by looking at ballots w/ magnifying glassthe visuals the Sct (esp. SOC) couldnt deal with it Rule: Political chaos = too arbitrary under 14A? Machines determination of valid/invalid ballot was less visible Similar to disorder in Shaw Bc machines dont discriminate based on the identity of the voter but rather based on the actual ballot? o Katz: If there was concern about that, it wasnt part of this case o FL Sct says legislature required electors to be chosen by Dec. 12 so FL could obtain safe harbor (last paragraph of decision p. 1128-29) Katz: FL Sct only said Harris could disregard late ballots if they came so late that it would prevent state from taking advantage of safe harbor provision U.S. Sct is lying here. FL Sct NEVER said FL legislature intended to take advantage of safe harbor at the expense of counting each vote o Sct just wanted to shut this down, even if for good reasons (?), so they twisted Palm Beach Canvassing Bd. v. Harris to say something it doesnt in order to end the recount rather than remanding it to the chaos o The Sct looked at the situation in FL and thought there might be a problem but it would be impossible to fix the problems w/in the time frame Giles v. Harris idea that Sct sees something going on that might

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o o o

o o

violate the Constitution, but they just throw up their hands and say they cant do anything Posner: Bush v. Gore is like Korematsu; law and order shape each other, and Sct has a legit interest in establishing order to prevent national crisis Posner: Sct is national hero Q: Or were they doing exactly what the Sct did in Korematsu, which is making a bad decision by lying or erroneously guessing about what is going on w/ the FL Sct Posner is angry at Stevens for calling out the majority RBG gives the majority the middle finger for making stuff up and essentially equating the FL Sct w/ the worst courts in the Jim Crow South Stevens Dissent: Damage in this case is to the institution of courts bc the majority is motivated by distrust of FL Sct Breyer invokes the language of Dred Scott reactions to show how dangerous the majoritys move was Self-inflicted wound to judiciary by suggesting FL Scts decision was motivated by partisan politics Majority was deeply disturbed here not because Al Gore might win but because there was chaos In Bandemer, in Timmons, etc., Sct has said time and again that stability is a super important interest Tribe: Notion that energized electorate was feeling its way toward robust democracy involved a lot of chaos, and the Rehnquist ct wasnt trying to hear all that noise (Cts distaste for democracy itself)

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Doe v. Reed o Katz: Scalia, speaking for himself, might be the counterpoint to the Rehnquist courts distaste for energized democracy o Case is being pushed by visuals of CA same-sex marriage disputes o Protect Marriage Washington gets enough signatures to get measure on that ballot involving state domestic partnerships (measure was anti-civil unions, and it fails) o Majority: Roberts says there is no facial problem w/ the Washington State Public Records Act, that requires public disclosure of individuals names who sign petitions like this o Alito is worried about harassment and intimidation o Everyone rights on this Breyer likes balancing interests o Sotomayor is talking about facial vs. as-applied challenge o Scalia Concurrence: No 1st Amdt problem w/ signing a petition No tradition of anonymity under 1st Amdt, especially when petitioner is acting as legislator (as they are here) Historical examples of how secret ballot wasnt prompted by 1st Amdt concerns Stand up for your position; have the courage of your convictions Katz: Juxtapose this Tribes position on the Scts preference for stability Compare this to AZ v. Bennett consequences of taking public stances on specific positions or not allowing people to do that
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stances on specific positions or not allowing people to do that o Burden on letting people know what you think and having public fights about things doesnt raise a 1st Amdt concern
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