Section V is on the ropes

[muon2]

Which professor was "clubbed"? I don't recall that.

Which population measure is used for the differential? Is it CVAP?

Henry Louis Gates

CVAP - it's from the Current Population Survey - which includes voting questions following each even-year November election.

Voting and Registration in the Election of November 2010 - Detailed Tables

Here is an update coverage formula:

If a racial or ethnic minority that constituted 3% or more of the population, had registration or voting in the 2010 election that was 5% or more below that for non-Hispanic whites, it is covered.

States that are not covered:

Southern states where black participation is comparable to white participation.
AL, LA, MS, SC, TN

Midwestern states where black participation is comparable to white participation
IN, MO, OH

State where AIAN participation is comparable to white participation
ND

States with no significant non-white population.
IA, ME, NH, VT

Covered:
AK: B(lack), H(ispanic), AIAN
AZ: B H
AR: B
CA: B H A(sian)
CO: B H
CT: B H
DE: B H
DC: B H
FL: H
GA: H
HI: B H NHAOPI
ID: H AIAN
IL: A H
KS: B H AIAN
KY: B
MD: A H
MA: B A H
MI: B
MN: B
MT: AIAN
NE: H
NV: B A H
NJ: A H
NM: H AIAN
NY: B A H
NC: B H
OK: B H AIAN
OR: H
PA: H
RI: B H
SD: AIAN
TX: B A H
UT: H O(ther)
VA: B A H
WA: B A H O
WV: B
WI: B
WY: H AIAN

Formula used White non-Hispanic alone; Black alone; Asian alone; Hispanic (of any race), so Black Hispanic, and Asian Hispanic are counted in two groups.

The Census Bureau does not break out AIAN, NHAOPI, and Other racial categories.   I subtracted from Total, the White non-Hispanic alone, Black alone, Asian alone, and Hispanic (of any race) to get an "Other" population.  This resulted in a double exclusion of non-White Hispanics (New York ended up with a negative value because of the relatively large number of Puerto Ricans and naturalized Dominicans who also identify as Black.  I generally characterized this population as AIAN: AK AZ ID KS MT NM ND OK SD WY.  HI was classified as NHAOPI, NC as a mixture of AIAN and multi-racial; and NV, UT, and WA as a combination of AIAN and NHAOPI.   Because of the methodology these numbers are statistically unreliable.

So is one outcome that SCOTUS throw out Sect V unless an up-to-date Sect IV is created? If so, Congress could use the table above, but it would seem unlikely with the current divisions.

[True Federalist (진정한 연방 주의자)]

To me, it seems like the VRA is entirely consistent with the Constitution, as read through the 15th Amendment. As it states: "The Congress shall have power to enforce this article by appropriate legislation." This should easily afford Congress broad latitude to pass laws relating to the first section of the amendment (i.e. race and color). Without preclearance, it's almost a guarantee that several states will go back to the whack-a-mole strategy of the pre-VRA era.

It'd be far easier for the Court to reject this suit considering that Shelby County, Alabama is not the proper plaintiff. As it was mentioned during oral arguments, even the most basic regulations would take in Alabama (and most definitely Shelby County). If Section 5 is to survive this case intact, I could possibly see Justice Kennedy taking that route. It seems like he's uncomfortable with Section 5, but perhaps not enough so to essentially eradicate it.

I can't speak to Shelby County in particular, but if one were to apply the standards in the VRA, but replace 1964, 1968, and 1972 with 2000, 2004, and 2008, Alabama would not be subject to statewide preclearance.  They had over 50% of the voting age population vote in all three of those elections.  [The atlas does not yet have the 2012 numbers.]

2000 had by far the lowest turnout of those three elections.  Here's a map with the states in green having below 50% of the VAP voting in 2000, but over 50% in both 2004 and 2008 while the states in yellow were below 50% in 2000 and at least one of 2004 or 2008.

[jimrtex]

I can't speak to Shelby County in particular, but if one were to apply the standards in the VRA, but replace 1964, 1968, and 1972 with 2000, 2004, and 2008, Alabama would not be subject to statewide preclearance.  They had over 50% of the voting age population vote in all three of those elections.  [The atlas does not yet have the 2012 numbers.]

2000 had by far the lowest turnout of those three elections.  Here's a map with the states in green having below 50% of the VAP voting in 2000, but over 50% in both 2004 and 2008 while the states in yellow were below 50% in 2000 and at least one of 2004 or 2008.

You would have to use CVAP.    The 15th Amendment is explicitly limited to citizens.

Since 1992, Hawaii was the only state to fall below 50% voting in a presidential election, in 1996 and 2000.

Even 60% would not be a difficult test to meet.

[jimrtex]

Which professor was "clubbed"? I don't recall that.

Which population measure is used for the differential? Is it CVAP?

Henry Louis Gates

CVAP - it's from the Current Population Survey - which includes voting questions following each even-year November election.

Voting and Registration in the Election of November 2010 - Detailed Tables

Here is an update coverage formula:

If a racial or ethnic minority that constituted 3% or more of the population, had registration or voting in the 2010 election that was 5% or more below that for non-Hispanic whites, it is covered.

States that are not covered:

Southern states where black participation is comparable to white participation.
AL, LA, MS, SC, TN

Midwestern states where black participation is comparable to white participation
IN, MO, OH

State where AIAN participation is comparable to white participation
ND

States with no significant non-white population.
IA, ME, NH, VT

Covered:
AK: B(lack), H(ispanic), AIAN
AZ: B H
AR: B
CA: B H A(sian)
CO: B H
CT: B H
DE: B H
DC: B H
FL: H
GA: H
HI: B H NHAOPI
ID: H AIAN
IL: A H
KS: B H AIAN
KY: B
MD: A H
MA: B A H
MI: B
MN: B
MT: AIAN
NE: H
NV: B A H
NJ: A H
NM: H AIAN
NY: B A H
NC: B H
OK: B H AIAN
OR: H
PA: H
RI: B H
SD: AIAN
TX: B A H
UT: H O(ther)
VA: B A H
WA: B A H O
WV: B
WI: B
WY: H AIAN

Formula used White non-Hispanic alone; Black alone; Asian alone; Hispanic (of any race), so Black Hispanic, and Asian Hispanic are counted in two groups.

The Census Bureau does not break out AIAN, NHAOPI, and Other racial categories.   I subtracted from Total, the White non-Hispanic alone, Black alone, Asian alone, and Hispanic (of any race) to get an "Other" population.  This resulted in a double exclusion of non-White Hispanics (New York ended up with a negative value because of the relatively large number of Puerto Ricans and naturalized Dominicans who also identify as Black.  I generally characterized this population as AIAN: AK AZ ID KS MT NM ND OK SD WY.  HI was classified as NHAOPI, NC as a mixture of AIAN and multi-racial; and NV, UT, and WA as a combination of AIAN and NHAOPI.   Because of the methodology these numbers are statistically unreliable.

So is one outcome that SCOTUS throw out Sect V unless an up-to-date Sect IV is created? If so, Congress could use the table above, but it would seem unlikely with the current divisions.

The questioning in oral arguments certainly suggested that an up-to-date formula


The current test is based on a combination of certain state actions in conjunction with low overall participation.  The actions included use of literacy tests or failure to provide election materials in Spanish for the 1972 election.   But it has been decades since literacy tests have been used.  And any failure to provide Spanish language materials has been largely incidental and not systemic.

The low overall voter participation is not necessarily an indication of state discrimination, and even it was it is quite rare for turnout to below 50% of CVAP (only Hawaii in 1996 and 2000 failed).  Only about a half dozen states would fail a 60% test (some of this is due an aging of the population - 1972, baby boomers were 8 to 27, with the older ones in their prime non-voting years).  In 2008, there was a 24% differential in those not voting between 18-24 51.5% not voting, and 65-74 27.6%.

About all you have to go on is disparate effect.  What is Massachusetts doing that causes Blacks to not participate in elections?  If nothing, then it will be easy to preclear any changes.  It's probably not a good idea to be changing polling places 60 days before an election, except in extreme circumstances, such as a polling place being severely damaged by flood or fire.  At worst it will cause Massachusetts to evaluate what they are doing - sort of like the good kind of affirmative action.

If the 2008 election were used, KY and MI would be off the covered list, and IN, IA, LA would be

In 2008, many states were being caught on a 5% differential in White-Black registration, which was not being matched in voting.  Blacks who reported being registered to vote were turning out at higher rates than whites who reported being registered to vote,

The CPS doesn't have a large enough sample size to be reliably used for racial groups in individual states.   The base estimates of persons who were over 18 of a particular race were bouncing all over the place between 2008 and 2012, without even adding complications about citizenship and voting behavior, which are a couple of questions that might be misreported (income is also probably misreported).

It might be able to use the ACS, without any questions about voting behavior.  This permits a larger sample over a longer period of time.   The November CPS has the voting question because it is believed respondents will have a better memory of whether they had voted a few weeks earlier.   The ACS could be matched with statewide voter registries, assuming they also included whether a voter had voted or not.

[politicallefty]

I can't speak to Shelby County in particular, but if one were to apply the standards in the VRA, but replace 1964, 1968, and 1972 with 2000, 2004, and 2008, Alabama would not be subject to statewide preclearance.  They had over 50% of the voting age population vote in all three of those elections.  [The atlas does not yet have the 2012 numbers.]

2000 had by far the lowest turnout of those three elections.  Here's a map with the states in green having below 50% of the VAP voting in 2000, but over 50% in both 2004 and 2008 while the states in yellow were below 50% in 2000 and at least one of 2004 or 2008.

Is that the actual test required by Section 4? I haven't really dug through the oral arguments, but I do recall it being mentioned that almost any standard would capture Alabama (and thus, force any possible constitutional issue to be settled on preclearance itself). I'll agree that that the areas captured by Section 5 do seem to be somewhat arbitrary and antiquated. However, I don't think looking at that data takes in the whole picture. You might have to take into account any possible prophylactic effect that the VRA creates through Section 5. The standards may be flawed, but I don't see that as reason enough to render Section 5 essentially unenforceable in the absence of Congressional action. Section 5 simply places the burden of proof upon the state or local jurisdiction, which I think should be found entirely consistent with the enforcement provision of the 15th Amendment (not to mention the Elections Clause).

From a policy standpoint, I think it would be preferable if Section 5 applied to all 50 states.

[True Federalist (진정한 연방 주의자)]

Is that the actual test required by Section 4? I haven't really dug through the oral arguments, but I do recall it being mentioned that almost any standard would capture Alabama (and thus, force any possible constitutional issue to be settled on preclearance itself). I'll agree that that the areas captured by Section 5 do seem to be somewhat arbitrary and antiquated. However, I don't think looking at that data takes in the whole picture. You might have to take into account any possible prophylactic effect that the VRA creates through Section 5. The standards may be flawed, but I don't see that as reason enough to render Section 5 essentially unenforceable in the absence of Congressional action. Section 5 simply places the burden of proof upon the state or local jurisdiction, which I think should be found entirely consistent with the enforcement provision of the 15th Amendment (not to mention the Elections Clause).

From a policy standpoint, I think it would be preferable if Section 5 applied to all 50 states.

Yeah, the VRA uses a 50% threshold, tho jimrtex indicates that I used the wrong dataset and that with the correct one, only Hawaii would not pass that level.  Of course 50% is fairly arbitrary and could be raised in a Congressional rewrite.  Indeed, because the Court should not be second-guessing how Congress would rewrite the bill if it is forced to, rather than whether Shelby County itself would be covered under a rewrite, I see the relevant questions as being:

1) Is preclearance constitutional, provided a rational basis for determining which jurisdictions are subject to it is given?

and

2) Is how the 2006 renewal of the VRA decides which jurisdictions are subject to preclearance done in a manner that has a rational basis?

Other than maybe Thomas, I don't think any of the justices would deny the constitutionality of preclearance per se.  Maybe Scalia or Alito would hold that there is no possible rational basis for imposing it now but I doubt that even if they think that to be the case that either would put it in an opinion.  However, I think it probable that the court will tell Congress to update how preclearance is determined and might even stay striking the current method of determining until the end of the 113th.  That the court did not want a period in which preclearance was not in force was no doubt part of the reason they used Northwest Austin to send Congress a signal, which Congress of course ignored.

I don't think preclearance for all would pass constitutional muster, tho a standard so tough it had that effect might.

[jimrtex]

Is that the actual test required by Section 4? I haven't really dug through the oral arguments, but I do recall it being mentioned that almost any standard would capture Alabama (and thus, force any possible constitutional issue to be settled on preclearance itself).

The "standard" would be, "we know those Alabamians are a devilish lot, and we need to keep an eye on them."

If black Alabamians are just as likely white Alabamians, how can it be said that their right to vote is being denied or abridged.   If black Massachusetts citizens are 15% less likely to vote than white Massachusetts citizens, how can it be said that Massachusetts is not discriminating against blacks?  What other explanation is there?

[BigSkyBob]

Is that the actual test required by Section 4? I haven't really dug through the oral arguments, but I do recall it being mentioned that almost any standard would capture Alabama (and thus, force any possible constitutional issue to be settled on preclearance itself).

The "standard" would be, "we know those Alabamians are a devilish lot, and we need to keep an eye on them."

If black Alabamians are just as likely white Alabamians, how can it be said that their right to vote is being denied or abridged.   If black Massachusetts citizens are 15% less likely to vote than white Massachusetts citizens, how can it be said that Massachusetts is not discriminating against blacks?  What other explanation is there?

Another explanation is that Alabama Whites are being discriminated against.

[krazen1211]

http://trailblazersblog.dallasnews.com/2013/04/texas-legislature-may-have-to-have-special-session-for-redistricting.html/

Texas is preparing to engage in fresh gerrymandering.

[krazen1211]

Great news: Supreme Court released decisions today all written by liberals. The conservatives might have written the Section V, the Affirmative Action, and the marriage decisions!

[Brittain33]

Great news: Supreme Court released decisions today all written by liberals. The conservatives might have written the Section V, the Affirmative Action, and the marriage decisions!

Is that how Supreme Court announcements work?

We know Section V is seriously endangered, but that's a novel theory.

[krazen1211]

Great news: Supreme Court released decisions today all written by liberals. The conservatives might have written the Section V, the Affirmative Action, and the marriage decisions!

Is that how Supreme Court announcements work?

We know Section V is seriously endangered, but that's a novel theory.

Generally opinions are divided up in some equitable manner so each justice gets a few. So, if you're on the wrong end of a bunch of important 5-4's, you get the unanimous ones.

SCOTUSBLOG is guessing that Kennedy got the Affirmative Action case and Roberts will take Section V.

[Lief 🗽]

Great news: Supreme Court released decisions today all written by liberals. The conservatives might have written the Section V, the Affirmative Action, and the marriage decisions!

I didn't know Clarence Thomas was a liberal now. Interesting.