Election Law/Voting RightsFall 2010Erin Eckles

3 WAYS TO THINK ABOUT VOTING1. Voting as Participation

Who gets to vote? Voter ID as example Outcome independent - right to vote denied regardless of whether vote would've made a difference Equal political dignity - what it means to be a citizen

2. Voting as Aggregation Right to vote to combine vote w/ other people - group right not just individual Outcome-related - right denied when submerged/diluted Prob: defining baseline of undiluted

vote3. Voting as Governance

About how gov't operates after you vote (Not just casting ballot & aggregation) No such thing as poplar will, but we create structure to determine how popular will will be

expressed Who gets to decide what rules are? (partisan officials!)

THEMES

THE RIGHT TO PARTICIPATE Art. 1 §2 cl. 1: get to vote if qualified to vote in state; Art. 1 §4: state legis. gets to set

procedures 14A P&I, DP, EP 14A §2: 1st time "male" appears in C. (in resp. to women's suffrage) To ensure black males are not disenfranchised (b/c otherwise would count toward

apportionment & not vote - meaning South gets > white power) In practice, never reduced apportionment Various provisions in the C speak of voting (EX: 14th A, section 1 & 2; 15th A; 26th A; 19th;

24th; 22nd; 23rd; 17th)CONSTITUTIONAL TEXTMinor v. Happersett (SCOTUS, 1874) (13-18) 14th A P&I ClaimIssue: Does the 14th A P&I Clause guarantee the right of women to vote?Holding: No. Although women are undoubtedly citizens, suffrage is not one of the P&I of US citizenship.Reasoning: -Women are citizens-but we do not need the 14th A to establish that. W/O the constitution people were citizens (other proof=CL understanding that children born to citizens were citizens), also jurisdiction in court of citizens)-Q: are all citizens necessarily voters? Constitution does not define P&I, so is voting one of them? NO. Constitution has not added the right of suffrage to P&I of citizenship. -Q: what voting coextensive with citizenship at time of const. adoption? In state constitutions, not every citizen was allowed to vote. It is also clear by the text of the 14th A that framers did not intend to make all citizens voters (mention of less representatives if men not allowed to vote). Right to vote is not P&I of citizenhip-14A did not create new P & I

-Reference to Slaughterhouse Cases (which is why the EPC is not brought up)-Structural Arg: if P&I included right to vote, no need for 15A-Textual arg: 14A § 2 says males, punishes for disenfranchisement-Originalist: no one thought women could vote at t3ime of 14 A adoption-Political process: Go to Mo, go to Congress (Court cannot solve the problem)-Outside proof: states admitted to union with different voting reqs and most did not allow women to vote and there was no objection to allowing state in.-some cases where being a citizen was not a requirement to vote

Felon Disenfranchisement Why allow felons to be disenfranchised?

*Keep voting with the privileged people*Felons would vote for bad laws, etc.*Deterrence (yeah, right)*Race

Richardson v. Ramirez (SCOTUS, 1974) (25-28) (SS) (Still Good Law) 14th A EPCFacts: Ex-felon disenfranchised by CA statute.Issue: Does the disenfranchisement of ex-felons constitute an EPC violation?Holding: No. Although Sec. 1 of 14th A guarantees EP, Sec. 2 provides affirmative exceptions, which allows the states to bar ex-felons.-SS: Compelling State interestfelons voting to weaken penalties-Reasoning: Language is clear that section 2 is an exception to section 1, so seems in line with original intent. Also, intent is further refined because at time 14th A was ratified, 29 states had provisions in constitutions which prohibited felons to vote….states readmitted to union after civil war were allowed back in union as long as constitution approved (most state constitutions disenfranchised felons)-Furthermore: Historical practice-Congress recognized in Reconstruction Act

-EFFECT: Limits Congress power with regard to felon voting because this makes restrictions on enfranchisement ok for the states.

Hunter v. Underwood [can't disenfranchise felons in racially discriminatory way - good law] 14th A EPCHolding: Struck down AL C prohib. ppl convicted of certain crimes to vote. There was a racial motivation for which crimes were included in statute (some crimes were included because they were committed by blacks more often).

-This case does not overrule Ramirez b/c diff - racially discriminatory (clear evidence of intent)Why this is happening @ a C convention?

1. Extreme commitment to white supremecy (S does not want to acknowledge blacks as =) 2. White supremecy commitment waivering (precommitment strategy - fear of coalitions)

*RSN C convention so focused on this is bc voting is tied to citizenship, equality, power

-Such outspoken and blatant discriminatory intent—we would never have this be so blatant today.BAN on Felon Disenfranchisement Laws?-Felon disenfranchisement has been challenged on intent grounds (# legis could reenact, # maybe harder) Congress could prohibit felon disenfranchisement for federal elections-Maybe for state under 14A §5 (Say discriminatory effect), but it'd be "enforcement" of 14A §1, and we still have §2 and Ramirez

Note that without § 2 of 14th: would analyze felon disenfranchisement under modern C framework (something that infringe right to vote…so you would need a “compelling interest”)

THE MODERN C FRAMEWORKLassiter v. Northampton County Board of Elections (US 1959) [literacy test not violate EP] 14th A EPC (RB)F: NC required literacy test to register as voter, P refused to take (Black woman) Claim: fund right to vote - can't limit I: Literacy test is allowable under 14A EP and 17A? H: Yes - as long as not apply discriminatorily. RB review *Very low even for RB (test neutrally applied)LEGIT: Promoting intell & informed use of ballot = legit. state interest # hard to policeMEANS: Rationally related (although not a proxy) + Applied neutrally-States have broad power w/r/t voting - deference.

-# does state have an interest in intelligent voting? Recognizes literacy not proxy for intelligence

-Maybe legit. ends but no permissible means - how to accomplish? *Good C law # VRA eliminates literacy tests, so if C, why can Congress regulate?-14A §5 - what are they "enforcing?" C. conduct that can be prohibited by Congress b/c of racial history of the literacy test (discriminatory effect)*NOTE: Voting is not fundamental right yet in Lassiter.

Harper v. Virginia State Board of Elections (US 1966) [poll tax unC - violates EP] [vote=fundamental right] 14th A EPCF: VA poll tax charged w/ violating EP [Reynolds: voting = fund right at this point, EP SS applies…here Dougals is applying higher RB rv] I: Whether poll tax in state election violates 14A EP? H: Yes. -Poll Tax is unconstitutional. Discrim on basis of wealth which has no relation. to ability to vote, and intelligent voting (potentially suspect class still) -Right to vote preservative of other rights so needs to be free & unimpaired-Double bound on EP claim - both suspect classification & fund right prongs -Evolving C. interpretation (framers would have thought poll tax ok) *EPC is NOT shackled to a theory of a particular era.-Black dissent: thinks that poll tax should be upheld. examples of constitutional discrimination…and willingness to pay tax, better willingness to vote.-Harlan/Stewart dissent: D/N like poll tax # think it's a legislative determination (not unC)

-Ct D/N rely on race even though adopted w/ discrim intent b/c then could have reenacted w/ diff. purpose (Lower RB rv)*Douglas is trying to say something about political participation….different theory of what a state can do.-24A: abolishes poll tax for federal elections # not for state elections

Dramatic shift in what we think political participation is from Lassiter --> Harper -Lassiter: instrumental conception of vote --> you vote for an end & state has discretion to shape.

-More education = more likely to get result we want -Civic competence; building community through participation in process -True virtual representation

-Harper: pluralistic & outcome independent conception of vote -Voting about constituting selves as a group – doesn’t care about outcome, just about

process-Level of scrutiny dictates result in Lassiter & Harper -Restrictions on the Core Electorate [should they survive SS? when are they ok?]Age, Citizenship, Residency (not subject to SS). Can't provide English only ballots when ppl speak other lang.

Kramer v. Union Free SD No. 15 (US 1969) [Not NT so violates EP to limit vote this way] 14th A EPC (SS)F: Guy lives at home w/ parents. Law limits right to vote in SD elections to 1. those who own/lease taxable property OR 2. parents/custodians of kids I: Whether statutory requirements to vote violate 14A EP? H: Yes, violates EP b/c this is not NT [SS applied]-EVEN IF they could limit the vote this way (not decided) but this is not NT) *When voting restrictions are put on the core electorate, you must use strict scrutiny and there must be a compelling basis for discrimination.-Kramer claiming to be member of "core electorate" (meets all other statutory requirements) -Don't have to elect school board, but once you do, rt to vote follows-Claimed state interest: ppl who have stake in election (goal = informed electorate=legit)-Fails NT - both overincl (let people in who are not interested) & underinclusive (Kramer is interested but not included) - trickle down

-Maybe people who will own property in the future are not -Struck down b/c disenfranchised an interested member of core electorate

- Normally presume legis. enactments are C, # here challenging reason why we defer to demo. accountable gov't-# prob w/ this arg: SB d/n make law --> state did & P voted/participated there (dissent points out) -Warren says that Kramer needs his voice to be heard from the get-go, not just in state rep race-Dissent: no different than other restrictions (age, residency) & RB should apply like Lassiter *Vigorous defense of right to vote

CORE ELECTORATE: bonafide residency, appropriate voting age, and potentially felons

RESIDENCY = Legit. Restriction on Rt to Vote-What = political community? Not ppl w/ same interests -Assumption residency = key requirement for core electorate # why? (so survives SS)

-Geographic community, representative nature? Concern about others diluting your vote "an appropriately defined..." (p.57)

-Can you be interested in an election without being a member of the core electorate? YES-Relation between residency and interest is tenuous….(oftentimes we are interested in

other elections (Scott Brown, MA) even though we are not part of the community.

Dunn v. Blumstein (US 1972) [can't have durational residency req'mt]F: TN had durational residency requirement (1 year, 3 mos in county) before you could voteH: Can restrict to Bona fide residence withstands SS b/c necessary to preserve political community (legit interest) # substantial pd of residency fails SS (durational requirement d/n stand [means = necessary to justify end of preventing fraud] -Legitimate interest, but not a compelling one. TN interests claimed (& rejected)

1. Preventing voter fraud (compelling, but this restriction = help w/ voter fraud) 2. Making sure you have "common interest" w/ community

Bona fide residency restriction not the same as duration (D/N have to have similar ideas)

(30 day registration req has = been successfully challenged yet - # how far?) 3. Exercise right intelligently (Legit rsn for the state, but this is kind of “mushy”)

Carrington v. Rash (US 1965) [who counts as bona fide resident? Can't exclude based on how you'll vote]F: TX law exclude members of military from voting in TX elections H: A state cannot exclude a sector of the electorate from voting just because of the way they may vote. A state can exclude transients, but it must be in a way that ensure that the voters are actually transients (heightened review, but before SS). Interest in excluding transients is legitimate, but this law does not ensure that this is blocking out.State args:

1. Prevent block voting by military (# can't prevent voting b/c of how you'll vote)2, Servicemembers = transients (# not necessarily transient here - job d/n automatically

make you one)Political community includes everyone not just those who will vote a certain way, we can’t single people out based on a point of view!

NONRESIDENTSHolt v. City of Tuscaloosa (US 1978) [no rights if outside the line - not part of core electorate]F: Citizens living outside boundaries of Tuscaloosa but subject to police J want to vote in Tuscaloosa. Claim: violated fund right to vote, EP.I: Right to vote in Tuscaloosa? H: No. When voters are no longer part of the core electorate, you can still have an interest, but there is no fundamental right and thus this should be analyzed under RB.

- More sympathetic than Kramer, but Holt is outside the line while Kramer was in-Holt voters had say in this AL law; Are schools different?

RB review b/c outside line (Not part of core electorate) "stripped of its voting rights attire"Just about AL power to draw lines & state could've decided that this was a

rational way to do itTuscaloosa Not providing full level of governance (# neither was SB in Kramer)

Args AGAINST Holt-Could incorporate or ask Tuscaloosa to annex -Line has to go somewhere, unfair to let vote when they don't pay taxes -Majority --> political comm. about subjective membership (choice to be inside

lines)-If d/n make choice, then case not about voting rights (assumes you had

chocie) Args FOR Holt

-Burdened by police etc. w/o vote (# state created this)-Brennan dissent: Line is drawn incorrectly…Lines should be drawn with regard

to government authority. Indirect effect v. direct regulation --> this = direct (Reciprocal rlnship btwn gov't & governed)

Purpose of upholding residency requirements = foster political community (political community is where the govt has direct regulation)-Instrumental conception of political participation: you must make a choice to be in the political community, you cannot lie on the outskirts.

Gomillion v. Lightfoot (US 1960) ['fencing out"] 15th AF: Educated black community voting. AL redraws lines so all but 3-4 black outside city, no whites out.

I: Whether redrawing lines violates 14A EP or 15A? H: Violates 15A *States have a right to define the boundaries is overcome by the 15th A-which forbids passing any law that deprives a citizen of the right to vote because of his race. *Court picked 15th A, so precedential value is very narrow (they are trying not to overrules Colegrove and to avoid burden from many lawsuits) -Participatory right - can fence out just BUT NOT based on race

-Can infer discrim. intent from crazy shape & no whites drawn out (still viol. w/o shape) -Even if Gomillion was the only one thrown out, same result, # harder to

prove -Shape shows line not drawn around natural community

Attempts to distinguish Colgrove - that was inaction, this = action & this = complete deprival -AL thought it would win based on Colegrove (Tusk can still vote, just not in district they

want to)Colgrove = dilution b/c no redistricting, found nonjusticiable

Cant define a political community based solely on race (exclusivity)This is NOT pol. Q b/c about racial discrim.

Whitaker concur: Base on 14A: this = segregation (& d/n viol. 15A b/c no right to vote where you = live) 15th A: States redraw lines all the time (Holt, this is ok)

-Gomillion is different because of race-transforms case from RB to SS)-Gomillion is not about segregation; but rather is about the political community

Compare to Holt - made choice here, & lines drawn w/ intent to deprive of vote (so 15A participatory harm)-Does choice animate the concern? Gomillion made choice, Holt did not

Registration, Identification & Participation-Most Americans don’t vote….may be because we have so many more elections than other countries…maybe because of our system (political districting; financing campaigns)

Griffin v. Roupas (7th Cir. 2004) [IL limit on absentee voting = viol. EP - deference to state] 14th

A EPCF: Working moms want to vote absentee on demand. IL law only allows absentee under certain circ. “Voting on Tuesday” claim, this is inconvenient to them and is unC. Claim that all registered voters deserve the right to vote absentee…C right.I: Whether IL law limiting absentee voting to certain circumstances violates EP? H: No.

Fed court can't order this kind of thing - broad deference to state authority to limit absentee*Plus this is a legislative issue that needs to be decided by the legislature.*Broad law that covered not only mothers, but also many other classes.

-Business not just a working mom problem (lots of classes of people are affected by this)3 state interests: 1. Preventing voter fraud; 2. incorrect voting; 3. deprived of last minute info

-distinguish Kramer: not disenfranchised

Post-Modern C FrameworkCrawford v. Marion County Election Bd. (US 2008) 14th A EPCF: IN statute requires citizens to vote in person on election day, or cast a provisional ballot and then go in person to the office of circuit clerk prior to election day and present photo id issued by the govt within 10 days. (2 Congressional statutes support state’s to reexamine their procedures) (R partisan issue)I: Does the IN statute violate the 14th A? H: No*Ct is constitutionalizing the electoral process. No more judicial review of the electoral process.

-What happened to Harper? We are masking the framework as as-applied or facial, rather than choosing the appropriate std. [Almost all burdens a state brings now are going to be ok]-CT looks at this in terms of facial v. as-applied distinction. Because this is facial=higher std (Burden would have to be very high, unless you can show that it hurts everyone you lose)-Stevens recognizes that this law burdens certain groups of people more than others. However,

since this is a facial challenge, unless you can show that this law affects everybody…you don’t win-STD: Burdick Balancing test (State interests v. Burden on Voter) (Not RB/SS)State interests: 1. Targeting fraud (illegal imm. Fraud); 2. update voter registration; 3. Safeguard voter confidence

1.This law is only addressing in-person fraud (plus there is NO evidence of this at all in IN-so shouldn’t we let this percolate a little bit)

2. Integrity of Electoral Process=Voter Confidence=Encouraging voter participation (Is this a legit interest?)

-Also problem of people with no ids-they don’t get to vote at all, just to increase other voter participation?

-IN has an interest in doing this…but -What about when voters look different from ID?

-CT says that provisional ballot solves this problem. Q of who would really go to the circuit court to vote.

-CT says that this type of commitment is a minimum requirement of all citizens in exercising their right to vote

Scalia (Concurrence): Does not like facial v. as applied distinction. D/n like review of the entire process; does not like burden on federal court.Souter: Weighed the interests differently. Would like to see fraud, but it is not that large of a burden to bring an id=Stevens is moving away from judicial review of these issues and leaving it to other players in the system to do so. (Thought that maybe Dems have to work harder to get votes, etc. and maybe they are benefited by this in the long run)

HYPO: What “as applied challenge”? Bring a case where 1 person is denied the right to vote.-Q: Is Harper still good law?-Thought that maybe Harper is just an aberration, and other cases are just holdings and not principles.-Also thought that you cannot constitutionalize everything.

Doe v. Reed (2010)F: State law in WA gave same sex couples certain benefits (health, visiting rights, etc.). A “protect marriage” coalition then sought to get this issue on the ballot, so they got signatures for a referendum. They got enough signatures to get it on the ballot, but the statute was not overturned. Then 2 other interest groups wanted to publicly get the names of the people who had signed the referendum to disclose them.I: Is disclosing the names of signers of a petition a violation of the First Amendment? (Facial)H: No, disclosure d/n violate the First Amendment as a facial-challenge.

-Some argue whether this is an “expressive act”…it is legislative but also express-Court leaves open the issue of an “as applied” challenge.STD: Substantial relation between the disclosure requirement and a sufficiently important governmental interest (Exacting scrutiny)-State Interests

1. Combating fraud, preserving integrity of electoral process; checking mistakes2. Providing information to the electorate about who supports the petition

-Plaintiff claims that there is a LRA. Plus, they argue that the objective is to harass signersRoberts: Must have a reasonable probability of harassment wil occur, but you would lose anyway because of the facial v. as-applied challenge.

Alito: Almost a dissent. Says plaintiff would will an as-applied challenge-Burden of harassment is real-State interests are inadequate (integrity of the process is a great interest, but whe have not disclosed names

before and we have integrity)-Thinks that there is technology that can check into voter fraud

Sotomayor: Skeptical anyone would win on as-applied; substantial probability of harassment is neededStevens: no evidence of fraud is neededScalia: Nothing is private with voting-we used to voice vote back in the day. Idea of civic courage, that it is a good idea for people to stand up for who they are voting for. Thomas (dissent): Thinks that requiring public disclosure is unC because there is always LRA.

The Reapportionment Revolution-We want citizens to be able to vote MEANINGFULLY….but the act of casting a ballot itself does not necessarily guarantee this.-To be meaningful, a voter must matter in the sense that it is capable of being aggregated with those of like-minded voters in order to pursue common electoral objectivesHistory:

-19th century: Congressional districts allocated based on the Census-1920: Change in population and 1840 statute is overruled-1932: Wood v. Brew-States do nothing for many years and rural areas are over-represented in elections

-Note: State legislatures have laws of when/how often districts for US Congressional and state districts are redrawn

ONE PERSON, ONE VOTEColgrove v. Green (US 1946) [malapportionment based on inertia = nonjusticiable] F: Il operating under 1901 apportionment. Claim: apportionment violates C (# what provision?))

H: Nonjusticiable political Q (= enter pol. thicket). Wrong suffered by IL & ct can't fix. Cong can (Art. 1 §5) -Frankfurter does not want to enter the “political thicket”. Congress can handle the

determination of whether the individual state legislatures had fulfilled their responsibility to secure fair representation for citizens.-RSNS for Court to stay out…

-Prudential limitations on Ct’s jurisdiction-Concerns over institutional competence-Administrability of remedies-Availability of alternative institutions to remedy any apportionment defects

Black dissent: entrenchment argument - legis won't be able to fix so ct should Reasons for judiciary staying out:

1. Political Q doctrine; 2. Institutional Competence; 3. Administrability; 4. Other institutions can remedy

2. Secondary effect: cities (malapportioned) turn to fed gov't b/c state legis. won't help them

Lucas v. 44th GA: (1964) challenge to districting adopted by majority vote, on state representatives (based on pop); state senate (not based on population) (amended C) -Majority of voters in each county approved disproportionate power to urban -Pushes FFs action/inaction distinction (decided @ same time as Reynolds) -Does the fact that it was done by referendum matter? < pol. process prob # still d/n matter-Struck down b/c voting has become ind. right & CO not allowed to structure dists. differently

*Voters cannot vote around the constitutionality of an election process.

Beginning of One-Person, One-Vote…(Most important decision for Warren Court)Baker v. Carr (US 1962) [voting rights now protected under 14A] [reapportionment=justiciable =Overrules Colegrove 14th A EPCF: State legislative district in TN challenged as violating TN C & EP. [1P1V = exist yet] -No reapportionment between 1901 and 1961. TN C has = pop. requirement # just NOT followed -Claim impossible to fix b/c legislature has to fix it & they have no incentive (protect

selves)I: Whether this question is justiciable? Is there something wrong in TN that courts can fix? H: Justiciable b/c based on EP not Guaranty so not a pol. Q like Colgrove. (Gomillion pierced justiciability) # ct d/n give a remedy

Pol. Q Doctrine - 5 Factors [Fdrl SOP concerns]-C. commitment of issue to coordinate political department -lack of judicially discoverable & manageable standard -Impossibility of deciding w/o initial policy determination clearly not for judiciary

-Impossibility of undertaking resolution w/o expressing disrespect for coordinate branch -Potential embarrassment of different departments giving different answers-State rep: can't go to Congress (like Colgrove) & legis won't fix & voters can't amend C [entrenchment problem]

-This = justiciable b/c state action so political Q factors (which are about federal SOP) are not implicated -Court making this up: No reason why solution = at large, or proportional rather than winner take all-Forcing right to vote into EP, individual rights model creates problems later -Would reliance on guaranty clause instead of EP have been better? (arg that it would)

-Under EP: partisan & racial gerrymandering = both bad but racial worse b/c closer to purposes of 14A

-EPC is focused on individual rights-Under Guaranty: Racial gerrymandering if done for bringing minority voting strength

together is doctrinally unobjectionable. But political would violate guaranty.-Racial gerrymandering d/n affect majority rule while political gerrymandering does -Guaranty clause is concerned about the structure of government (Republican form of

Govt)-Problem w/ relying on EP: can strike down anything [#s never accurate # we rely

them anyway]-PA 2000 redistricting - 19 person deviation = too much; Karcher: < than census

undercount = too much -Is Baker right & Reynolds wrong? (Yes it's a problem, but 1P1V not necessarily solution?)

-No principled way to say X = too much deviation (problem) -# cts draw lines all the time and maybe Guaranty clause would allow line to be less strict

-Clark concur: crazy quilt, fails RB (no baseline for fair representation) -Frankfurter dissent: claims of dilution requires notion of what a vote "should be" weighted-Ct engaging in pol. philosophy, choosing a model of political representation & shouldn't be doing this-this should be left up to the local government-# maybe by not doing anything they were also engaged in political philosophy (& maybe not bad?)

NOTE-These cases revolve around a notion of how government should be organized! We do not have a standard to calculate how much a vote is worth. We are just choosing political theories here.-Also, 90% of congressional districts are held unC after this decision…think of the practical effects of this-This decision, while holding that judicial review is appropriate in the arena of politics and districts…does not really give any idea of the standard courts should follow.-Now, questions arise over the Senate and Electoral College…not 1P, 1V (unC? But there are specific provisions for these institutions in our C)

Political Philosophy -"full & effective participation" requires an equally effective voices (135 - individual rights

model) Baker-Lucas: about accomodating group ints. - aggregating votes/interest group model

-Carolene Products FN: Judicial review needs to be stricter when pol. process has failed -Voting rights as an area where deference to legislature is BAD

Q: If you sign Baker, do you have to sign Reynolds?Reynolds v. Sims (US 1964) [one person, one vote, voting = fund right] F: Last apportionment of AL legislature based on 1900 census. Inaction by legis. I: Whether AL apportionment violates EP & AL C.? H: Yes.-Voting = fund right & SS applies. Dilution of vote violates EP guarantee of =participation in

process -Ct calls this discrimination: says that this is no different than giving people in some districts more than 1 vote.-Establishes 1P1V….districts drawn on population (not based on voting age population)

-Seems judicially manageable (# was it necessary?) -Makes 90% of Cong Dists unC (# never would have gotten civil rights legs. w/o

redistricting) -Appropriate for court to make this up?

-Maybe b/c better than doing nothing in Baker b/c of enrenchment problem-Maybe not doing anything is also "making something up" and engaging in pol

philosophy*Court says that there is a right to an “equally effective vote” but where is

the link to the text in the C? Unmoored in history and the text of the C.

-Federalism problem? Not letting states experiment? (Bad to micromanage remedy - might be valid reasons to malapportion)

-But can you really draw a meaningful line between Baker & Reynolds? -Unclear what needs to be =? # of ppl? of voters? [VRA says voting age population] -Harlan dissent: 14A d/n require population principle. 14th A, EPC was never intended to apply to voting rights. Further, if Reynolds is correct than the US Constitution is not appropriate in 2 Senators per state, because each state has substantially different populations.

-Points out that the Ct has yet to order a remedy.

How Equal Does Equal Have to be?Deviation from Absolute Equality? Ct strict w/r/t Cong dists. Usually allow 10% deviation at

state/local level -# need valid justification - Larios said partisan gerrymandering NOT a good reason.

Karcher v. Daggett (US 1983) [1P1V absolute equality for Cong. districts - no avoidable pop. variation allowed] [no de minimus standard….state must try very hard to make equality]F: NJ reapportionment plan. Diff btwn lg & sm dist < than census undercount. Competing plan w/ < deviation.

-Ps: R legislators who wanted their partisan gerrymander instead of D gerrymander I: Does plan violate Art. 1 §2 (how H chosen)? H: Yes b/c variation could've been avoided & no legit st int. *1% deviation does not satisfy 1P1V, unless the deviation is serving legitimate state interests (Factors-see below)-Deviation = ok if serve legitimate state interests, otherwise need complete = (Nearly impracticable)

1. Respect boundaries 2. Compact/Contiguous 3. Avoid contests between incumbents? (does this make sense?)

-Ct d/n say protecting incumbents themselves = legit. state interest, though later interp. this way.-Legit state int (allowing for deviation) to not pit incumbents against e/o (arg this is not legit int either) -Case NOT about deviation, but about a lostpolitical battle being re-fought in courts (White dissent)

-Refighting under guise of something else (legal doctrine diluted b/c real fight is political not about doctrine)

-1P1V makes partisan gerrymander easier b/c = is only qualification Thought that there will always be error (with Census count or otherwise) but there has to be some barometer….so we go with equality in apportionment

NOTE: Karcher marks the end of 1P, 1V. The only reason for the challenge in Karcher is because

of the inability to have an equipopulation vote to constrain partisan gerrymandering.-Also note that the initial benefits of the equipopulation principal was its easy calculation, administrability and function against gerrymandering.

Post 2000 PA Redistricting (Vieth v. PA)-Rs redrew lines w/o Ds & put 2 sets of D incumbents against e/o & one D incumb. against R incumb. in R district.

-Total deviation of 19 ppl. No gerrymander problem, but violates 1P1V b/c of deviation Dept. of Commerce v. US House: Can use sampling for certain purposes in gathering demographic data BUT not for purpose of apportioning Congressional seats

-Supermajority requirements ok Gordon v. Lance (US 1971)

LOCAL GOVERNANCE (Deviations-Areas where 1P, 1V does not apply)Background

Kramer idea that voting = individual fund. right (pushes against local experimentation) Avery extended 1P1V to local government (extended to officials in county government) Hadley: indicated that the dividing line between officers that have to be elected in the type

of election required in Reynolds is whether the officer performs important governmental functions.

Morris v. Bd of Estimate: 1P 1V applies (things that look like general governance class. as special use)

Wells v. Edwards (1973): 1P1V d/n apply to election of judges b/c not "representing" (# if going to be elected, shouldn't all protections attach?)

-Ct dan like judicial elections, but always uphold Special Use Districts: arg not really governance so d/n have to comply w/ voting rules

Ball v. James (US 1981) [special use district = req'd to satisfy 1P1V]F: Voting based on land owned + apportions voting power to the amount of land the person owns. Salt River Dist = provides water. Also provides electricity to 1/2 of AZ. I: Whether this is narrow function & special purpose & therefore released from 1P1V? H: Yes - special purpose district so not required to satisfy 1P1V. (Low level review to EP challenge)-SRD = pay taxes, has ED power, issues tax exempt bonds, exempt from state regulatory authority

-Usually we exempt something from regulatory authority b/c presume it will act in the public interest, but seemingly no such guarantee here -the SRD does not invoke any governmental powers/district functions are relatively narrow (simply storing water behind its dams, conserves it from loss, and delivers it through canals); electriity is not a traditional element of govt sovereignty

relationship between District and nonvoting residents=consumer and business-Makes no sense: If Kramer was interested, why not here?-Powell concur: created by state legislature, go there & fix (# that arg = work in Kramer) -Dramatic shift from Salyer (77ppl). Yes, disproportionately impacted, but that was 77 ppl (& only water)

-Here, supposedly acting in public interest, why they're extemped from regulation -Dissent here & Holt: Direct regulation = participatory right (theory of rep.) - maj. has no response in either, everyone has an interest.-Ball & Salyer notion: power = too limited to be constituting a political comm. or exercising citizenship

-Participatory right = right to participate in a community, not just right to cast vote & no community here

*Wrong result here, because this is dealing with H2O in AZ…very important resourcesHolt/Kramer: Those were cases dealing with “core electorate” not the situation here. *You are in the core electorate here, but certain governmental functions are administrative and you don’t need elections and all of the political parties-Court got it wrong, there should be a fight over other provisions (education/water/things that are

important)

When do participatory rights kick in?-Core gov't functions - education will always kick it in, electricity & water, not so much -Kessler & BIDS [residents get < say, but no 1P1V, powers look > like gov't but ct

says supp. to muni fnctns] -Fumarolo: SD gets 1P1V strictly -Catayano: attempt to limit vote in Office of Hawaiian Affairs to native Hawaiians gets

SS-Might be special use, but restricting on race & that's not ok (can't be special use

to define comm. based on race) NOTE: Question about Single Purpose Districts….do non-freeholders have any right to participate before the district exists. General answer is that the petition can be limited…Exception to the general rule is that IF the result of a successful petition would be a vote by the full electorate, then the one-person/one-vote rule applies because one group cannot be allowed to control the full electorate’s ability to vote.-After Ball….a category of special purpose bodies (like special purpose districts) have been held immune from one-person/one-vote challenges.

ADD MORE ABOUT Board of Estimate v. Morris

……………………………………..172-177Fumalaro v. Chicago Board of

Education………………………. 189-193

C. THE SENATE-The Senate is an anomaly that comes from the time of the framing-based on history.-Frames thought an upper house was needed to protect property interests (not people)-Court has said that the structure does not give the states any license to apportion districts in a similar way-Because of the population of states, it is possible for Senator’s representing 10% of the population to block the passage of a bill.

Gray v. Sanders (US 1963) [1P1V = apply to US Senate & no excuse for state legis] F: GA uses county unit system to determine (enhances rural voters to detriment of urban vote)I: Whether county unit system violates EP? H: Yes -Arg: S apportioned this way, so GA can do. [# C authorizes S to do this specifically] -Disproportionate representation in Senate result of unique compromise.

1. Problem of dilution: If there is any reapportionment that is not exactly it denies EP of the laws

2. Entrenchment: Reapportionment is a political Q that the judicial branch cannot and should not fix.

SUM-View that the US Const. does not tell us which picture of representation to choose. Rather, SC is choosing one form of representation over another.

-Alito’s Point: C should not be picking one over another (reapportionment is a political question)

-SC is within the political thicket….and now there is no turning back.

POLITICAL PARTIESINTROAmbiguous role in our system. Regulated by state, sometimes treated as state actors for 14A EP

-# sometimes have 1A associational claims alsoWho Is "The Party"? (state v national, members - electorate, leadership(*), gov't actors w/ pol. interests?) **Maybe they shouldn't be able to have it both ways:

1. Party associational interest to exclude nonmembers from primary AND2. State Regulation Legislature (as representative of a party interest) drawing lines to

protect the party (partisan gerrymandering)If we're going to protect the associational interest to the strong extent we do,

maybe we need to police the other side in a stronger way & not allow political gerrymander-Careful with originalism, because FF did not think that we would have Political parties.

B. THE BALLOT

Background

Commitment to secret ballot based on fear of intimidation Costs of secrecy - voter confusion, literacy, hurts black cands b/c ppl say # d/n do (ex.

Obama, NH) Regulation of the ballot: How to get on it? What does it look like?

Efforts by States to Entrench the 1 or 2 Party System: SC says No ProblemBurdick v. Takushi (1992) [no right to write in candidate] F: 1 candidate on ballot & voter wants to write in Donald Duck, HI law will not let him I: 1A/14A free speech/expression, participatory claim (want to cast meaningful ballot for candidate of choice)H: Court rejects 1A claim --> ballot not a forum for freedom of expression (no right to vote for who you want)

-State has power to regulate elections - regulation invariably burdens rt to vote

STD: Flexible standard-challenge to a state election law must weight the “character and magnitude of the asserted injury to the rights protected by the 1st and 14th A that the P seeks to vindicate” against the “precise interests put forward by the State as justifications for the burden imposed by its rule” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff’s rights”

-No SS just because it touches on right to vote - balance burden on vote v. state interest [low level review]

-Small burden: Easy to get on ballot in HI, only burden is deciding 60 days in advance-State interest: unrestrained factionalism (sore loser concern); prevent raiding; sense of

order (weak args, but the law is still sustained)-Kennedy dissent: higher review, but would still fail F: HI is D state, ppl are leaving ballots blank, suggesting they're unhappy w/ process and unable to participate meaningfully-Disincentive to get I cands. b/c D party entrenched - want to vote in D primary - locus of decisionmaking -State of HI = D party (so state interest = party interest). D party creates system that internalizes dissent

*Std of review developed here underlies voter ID cases*Like non-racial version of white primary cases where 1 party trying to lock it up by internalizing

-Q: Maybe the SC should be more involved because of the lock up and entrenchment of 1 party?

BULLOCK

C. PARTICIPATION1. White Primary Cases (Bozo the Clown effect)

Background: Hard Q in these cases - where is state action? -Why are white Ds so relentless? [VRA is eventually passed in opposition to this

relentlessness]-Could just let blacks vote & outvote them # want to deny rights of citizenship -Concern re: cross-racial coalitions. Precommitment strategy (d/n want to give even

minority infl. power]-'Ensuring D party can continue to control process (success depended on

noncompetitive general election)-*These cases protect right to decisionmaking process where it matters - keeps

access to locus of decisionmaking w/in white D party control-Rich conception of what the right to vote is all about. Voting is NOT just casting

a ballot, but rather, the right to have an influence when deals are made, where the vote truly matters.

-Conception of right to vote where process is competitive -Party only state actor when party primary is locus of decisionmaking

-At some point associational right trumps participatory right -Even if state can't protect your participatory right, shouldn't be able to make it harder

for participation -Problem: court afraid of remedy so finds no injury & narrows rights unnecessarily

Nixon v. Herndon (1927) 14th A EPCF: TX statute said no blacks can vote in D party primary. Black man challenged, otherwise

qualified to vote Facial challenge to statute struck down on 14A EP. Blatant 14A viol. so no need to reach 15A (not talking about voting here…rather just talking about discrimination)

H: Court struck down a statute barring AA from participating in D party primary on 14th A grounds. This was a facial violation of the EPC of the 14th A (clear racial discrimination)

-Right is not political & nonjusticiable b/c seeking private damages

Nixon v. Condon (1932) 14th A EPCTX response to Herndon - new statute allowing party executive committee to regulate

primary voter qualifications. D party excludes blacks.-State action b/c gives executive committee authority that they otherwise wouldn't have

had. Viol. 14AH: Dem party is an organizational apparatus of the State itself….organization would not

have this power unless that state gave it to itself. The committee is an “organ of the state”…then the committee must follow the 14th A, because without delegation the party would not have this power.

=Key delegation of power from state

Grovey v. Townsend (1935) (9-0)D party: only whites can be members/ part. in state convention. Black denied absentee

ballot for primary. H: Not state action b/c voluntary assn & can choose members. Parties have the power to

decide their associational right (who is members) . There is no state action here…party is not affiliated with the state.

Smith v Allwright overrule 9 years later - what ∆d? WWII rise of communism, ∆s in ct, Classic

US v. Classic (1941) (gets us to state action of the party-allows you to pierce the associational rights of parties)

F: Party officials in LA stuffing ballot boxes in primary. 15th AH: Interfering w/ rt to vote, rt to choose and have your vote count. Based on Art. 1 §4…and

15th A

Fundamental Right to Vote in the Primarcy-# no C protected right to participate in primary - just interest in Cong. primary where

either: 1. State law makes primary an "integral part" of the election (what matters in this

case) OR 2. Where primary essentially controls outcome (locus of choice)

D/n directly overrule Grovey b/c not based on 14A & d/n speak to state action (# does undermine)

-Classic is about Congressional power to fight vs. fraud-Classic is also about state action (Grovey does not see state action)

-State action here, because of congressional regulation of this primary, LA regulating primary and paying for the primaryWhite Primary CasesUsing 14th: Because the right to vote was not implicated, because it was just a primary and it was more important for the party associational rights. Parites were placing these limitations, and this was outside the FDR…change in court…then Classic pierces the associational rights of parties through 2 criteria.15th: implicates the fundamental right to vote because when a state -Why switching between 14 and 15? 14: 1920s still going about facial discrimination and not a fundamental right.

Smith v. Allright (1944) (8-1) (Where state regulates a primary, you cannot discriminate under the 15th A)

-p. 213 end para ("the recognition...) F: D party refusing to allow blacks to vote in a primary election required by TX law. I: Resolve inconsistency between Grovey & ClassicH: Private party acting under legislative direction = state actor so 15A violated when it

denies right to vote based on race.-D party = state actor b/c state has so heavily delegated (primary elections conducted

w/ state auth.)Holding: Texas is requiring poll taxes, this is more like Classic. When you have so much regulation, then party is a state actor. Because there is so much state action in the primary, you get the

-Smith is about the right to vote at the moment that counts.

-Jump to 15A --> not just racial discrimination, but discrimination that denies the right to vote

-Consequential decision - huge jump in # of registered black voters after-2 weeks after Smith... SC repeals all laws regulating parties/primaries (to elim. state action)

-D party excludes blacks from primary & Ct strikes down on 15A (not integral part if = state machinery?)

-Uses 2nd prong of Classic --> D party primary actually controls choice *Move to 15th A…important to control the choice in the general election. The move to

the 15th was generated by Classic.

Terry v. Adams [conception of pol process - get to participate at point where it makes a difference]

F: Jaybird preprimary excludes blacks. Auto enrolled in Jaybirds if register to vote & not black. Duplicating D primary # only white. Looks like election - if win Jaybird, win D primary & win GE b/c D safe dist

H: Violates 15A. This is the integral part of the process (only effective part). Effect violates 15A

-# how is it "integral" if not regulated?-15A protects access to some influence, not just meaningless vote-Bringing into existence exactly type of election 15A intended to prevent (only

election that counts) -State has permitted this to happen --> inaction as violation

-Jaybirds = have to let blacks in, just have to let them vote-Don't have to let Rs in (# why note - why can they discrim on ideology - Dunn says

you can't) Holding: if primary determines outcome of general election, citizens have the right to vote. Does not matter whether this is a completely private election, that it essentially excludes blacks, then primaries become state action when they are the sole locus of competitive elections.

-If we are excluding people based on race.-Limiting principle: decisiveness of the election.-All based on RACE

Clark concur: Not every political assn is state action # this is. Comes off official voter rolls-Theory of political participation: access to locus of effective political choice (Not just rt to cast vote, but part of participation)

-Denying right to vote if denying access to this point.-Decision criticized for reading of "state action" (if this = state action, is everything party

does state action?) -Ct later says these just about race - # that's incoherent Frankfurter, Concur:-Fact that government official participate in the election, then the state participates=state action (this is crazy!)Milton, Dissent: Hates what TX is doing…but this is NOT state action

State Action Doctrine-Where is the line between state action and not state action?-There must be some limiting factor for SC.

-Can boy scouts keep out black leader?-Can the black panthers hold an all black primary?

*Katz thinks the outcome is different for each scenario.-Would Smith and Terry extend beyond race? (Romer v. Evans struck down a law that did not allow bigamists or supporters of bigamists to vote)-There is a cost to associational freedom.

*HERESC stepping in to break the stranglehold on a political system unable to generate a change from within.

What about assns that provide a "necessary" endorsement (ex. NRA in Wyoming)-NOT running an election like Jaybirds (# that's too quick). Still decisive moment of choice? -State actor just b/c have that amt of power over election? (Concern about how this goes to

living room) -Clear wrong w/ pol. process if no comp. @ any other level that assn is decisive factor -Maybe assn. claim just richer than part. claim in these cases (this pu

2. Nader, Duke & Dietz (Both the Party and the State Seek to Exclude Citizen X from Participating)

Nader v. Shaffer (D Conn. 1976) [both state & party seek to exclude] F: Ps = nonpartisan reg. voters want into primary, claim a protected right not to be

associated.. CT: only those affiliated w/ party can vote in primary.-Claim: violates rt to vote, right not to associate. Other venues to participate are not

effective-so not the same as this primary.H: No violation of right to vote, parties have the right not to associate by excluding non-

members of party from primary. Association for a priamary is a meaningless act, just join the party that you want to vote in.

-No state action, just regulated by state…and there is no problem that the primary elections are closely regulated.

-2 Competing Fundamental Rights: Parties Assocational right; fundamental right of voter not to associate.

-So, must balance!-Ct says nothing bad happening, Ds & Rs have just gotten support over time-which is why

this election is the locus point of the vote.-# all election rules created by partisan officials (based on maj. rule system, need

50%, leads to 2 party, first past the post) -Rejects forced associational claim – court likes the closed primary-registering w/ a party not

onerous (minimizes assn w/ party-do not have to be in line with the orthodoxy)-However, consider Powell’s view of political parties in his dissent in LaFollette (253)

that political parties do not really have a true ideology, but rather are more fluid and have an overlap with their philosophy.

-What consequences does that have on conception of assn? -Protecting assn. claims of parties while saying indiv. assn claim meaningless -If so easy to associate, why does party have interest in excluding non-Ds?

-State interest in protecting political parties as viable interest groups (But remember, parties are state officials…they are protecting themselves)

1. Integrity of preserving the historic political process2. Protect party member’s associational rights (preserve parties views of its members)3. -But state itself is just Ds & Rs in legislature excluding Is (entrenchment)

-Thus, the parties are creating rules which protect the entity=beneficiaries of rules =parties

*Maybe when you see a law serving one party, or both parties interests, court should be less deferential

than it usually is to state's expression of its own interest

NOTE: Can the party require more than just public affiliation?-Like an oath? While there are some state laws which actually require voters to agree

to certain “values” of the party, most of these provisions are not actually enforced and thus the court has not had to deal with the issue. (252)

Duke v. Massey (11th Cir 1996) F: Candidate for R presidential nominee removed from state primary ballot by state R party

(he is crazy)-D sec of state, puts Duke on ballot & sends to R party (as GA statute requires), R

takes him off Claim: 1A free speech, right to associate violated by party acting according to unC state

statute, also 14th A claim EPCH: No right to associate w/ unwilling partner. Party can choose not to associate w/ you (even

under SS) State’s Interests (SS…but court does not think Candidate or individuals are heavily

burdened)Compelling: -Protecting political parties’ right to define their membership

-Party has unfettered discretion to determine who makes up party (Ex. Colbert in SC)

-NT to further compelling interest of protecting party's rt to exclude ppl w/ adverse pol. principles

-Complaint = about state action but about internal party governance -# how is this diff than white primaries? (Race is different, but still the scheme is very

similar)-Ct rejects voters "rt to vote" arg - no right to vote for cand. of choice, party leadership

decisions = reviewable -One party using state power to put other party in awkward position (Dems in

powerRs)-Ct views as "entitlement to be a nominee" & says can't have

-# maybe you have a right to compete free of state obstacles -this statute gives R party power to keep

people out of election

R Party of TX v. Dietz (TX SC)F: Log Cabin Rs excluded from state R party convention. DistCt granted injunction (vs. R’s,

saying that Log Cabin Rs could attend the convention)-Win in DistCt --> TJ = elected judge, D party! (state power exercised by partisan

officials)I: Whether this exclusion violates free speech, EP, DP? H: No, because this is not state

action.-Party is only state actor in certain circumstances (White primary cases - elections)

Generally: when parties exercise election rules…this is state action-The normal role of party leaders in internal affairs is NOT state action.

-State action seems to vary based on the target fo the state action. Why not just come out and say this. Maybe EPC (race) eroded some associational rights.

Q: Is there a difference between excluding people on the basis of the platform v. gay people?

-Log Cabin RsOrganized based on certain ideas (so Rs can exclude)-GaysIntrinsically based

Q: Why does the classification of “state action” vary on the target of the state action?-This really shouldn’t matter/Maybe the court should talk about this

3. Lafollette, Tashijan & Jones: The Party Seeks to Exclude Citizen X From Participating But the State Demands That the Party Permit Him to Participate

D Party v. LaFollette (US 1981) [inclusion in party primary against party wishes…but no requirement to allow WI to have delegates at ntl. convention]

F: Nat'l party: requires closed primary. WI statute: requires open primary to select electoral delegates for Prez

-WI D Party wants to bring opposition inside party to prevent them from creating viable alternative (one party show in WI at this time)

H: Nat'l party rule ok based on associational rights. Do not have to seat delegates from WI. Members of the national party can choose their associational rights.

-Single states can't unilaterally regulate nationwide activities-Party can protect from outsiders & prevent states from interfering -C. protect's the party's associational rights [state can do what it wants # d/n force nat'l to

recognize] -Powell dissent: only purpose of a primary is to elect delegates. Interest is not meaningful

if not vindicated @ nat'l convention

-Maybe court should not be involved here - just dispute between state & nat'l party-Say nonjusticiable or supremacy & nat'l wins

The Party Wishes to Permit Citizen X to Participate But the State Demands His Exclusion Tashjian v. R Party of CT (US 1986) [party wants Is in # state demands exclusion]

[Different outcome as Nader]F: R party wants to include Is in primary b/c helps in GE. State law prevents this, closed

primary (same statute as Nader)-R legis. tried to ∆ law but D governor vetoed (so filed suit - political battle in court)

H: R has right to invite voters into primary - associational interest of party trumps state law (Law Struck Down). Parties have the right to associate with whom they choose. Violates the parties associational rights to exclude people who the party wants to include.

-State Interests - all rejected under SS (not compelling enough interests)1. Prevent raiding (# can raid already & I voters not voting in another primary) 2. Protecting 2 party system - make sure Rs are really Rs (crucial that Rs want Is in…

trust Rs to define what its best interests are) 3. Voter Confusion (Voters are smart, can figure it out) 4. Administrative Costs --> but assn right trumps & once state chooses to have

primary-must pay-Maybe < deference to state interests b/c state interest is really 1 party's interest

(278) EK likes -Basically party has right to associate w/ ppl who have not chosen to associate w/ party

-Scalia dissent: Majority exaggerates R party assn interest (Finds NO Burden)-Sees R party as electorate & does not know if they want to include Is -State interest in protecting party membership/electorate from smoke filled room party

decisionmaking-The primary d/n have to be a poll…go ask I voters what they want, but don’t use the

primary as a poll -State has right to hold primary even if party d/n want - so they can regulate however they

want!*State does not have to honor the preferences of the Rs (State can override that

choice)

-Does NOT overrule Nader: Same law, but depends on who Ps are [NEW STD: Party hacks always win] -Law injures R party, d/n injure individual voters who want in

-When R party wants them in, have associational claim-When I voters want in & R party doesn't, no participatory claim

CA D Party v. Jones (US 2000) [party wants to exclude but state demands party allow participation-blanket]

[SC very solicitous to the associational rights of the parties]F: Prop 198 created blanket primary to replace closed,. Purpose: more moderate/centrist candidates (1 faction of party is using the referendum to gain advantage over another faction)

-Majority of voters in CA want blanket primary. (majority of every party chooses) -Blanket primary: all candidates regardless of party on primary ballot, can “jump”

between parties on races-Open primary: choose ballot, # vote all D/R (you don’t have to be D/R beforehand, can

just choose that day)I: Whether blanket primary violates 1A right to association of D party? H: Yes, right to assn includes right to exclude from selection of party nominee. Blanket primaries are unconstitutional.

-Necessary implication: individual voters/party members have no assn. interest-Party associational interest vindicated over voters interest -Just b/c states regulate party primaries D/N make them wholly public

-Parties need ability to define membership. Blanket primary forces party association w/ ppl they = want

-Candidates who will change their preference on the basis of how they are elected-Open Primary would not violate party's 1A right [@ least forced to associate for the day]

-# seems like same injury to party -Member for a day-enough association for a day (Not adulterating the process)-Primary is the most association for most members of a party

-State justifications for blanket primary (post-hoc since voters put on ballot) (SS)1. Want more moderate candidates 2. Preventing disenfranchisement (if live in safe dist - need access to meaningful

choice)-Scalia - this = disenfranchisement. Join party or shut up

NT: This is not narrowly tailored. An appropriate option would be an nonpartisan blanket primary.

*State would determine what quals are needed to get on the ballot, but each

voter regardless of affiliation may then vote for any candidate.- Is this a good thing? (Arg: if GE noncompetitive, closed primaries result in greater

polarization)-Reason for law - one faction of party arguing against another (internal battle - ct

should stay out?) -Decision criticized b/c state already regulates primaries so heavily (can have primary even if party = want)

-Classic: right to participate in primary (b/c where meaningful choice happens)-Scalia rejects in FN5 - white primary cases = applicable, those about race [puts in

box] -No participatory right to party primary unless excluding on race-Why, once we understand participation as "meaningful access", can you

limit it to race? -Seems like a broader conception of what participation is

-SCALIA: Right to cast a meaningful ballot not at issue, and if it were, it would actually require a blanket primary b/c otherwise you'd always have right to meaningful access

-EK --> he's wrong, there are other options like competitive districts-Could say party can't get safe electoral dist for general & then close doors duringprimary. Only get associational rights if it's competitive

-First case to confront noncompetitive district & party assn right (LopezTorezs says competitive = matter)

-Stevens dissent: Primary is state action so = 1st A assn right (complete opp of majority)-From the white primary cases, primaries are not part of the party, but rather part of the

state.-In dissent here, but in majority in Tashijan, why?

-Tashijan: Rs can invite Is in (assn freedom trumps state law)-Line he draws: state can't stop Rs from expanding participation in political

process -CA wants to expand participation here in teh same way, so he thinks its ok

-CA D Party rejects notion of participation as right to locus of decisionmaking-Maybe shouldn't get both partisan gerrymandering & rt to exclude

NOTE-What should the proper treatment of political parties be, by the courts? (269-various

theories) and another theory, “civil society” (parties are in the middle between family and state)

-Q: What happens to Smith, Terry, Classic?*NOT overruled

-White Primary Cases?*What is leftover from these cases is RACE; but ultimately the US is worse off with its

notion of political participation

Washington State Grange v. Washington State Republican Party (2008)[cheating in the nonpartisan primary

F: Lower courts held unconstitutional a novel WA primary system. After the SC in Jones invalidated blanket primaries, WA adopted a new scheme (Semi-nonpartisan primary…bc the preference of the party is on the ballot)

-Primary: Candidates would declare major/minor party preference (which was designated on the ballot)

-political parties could not prevent candidates from indicating the preference-Voters could select any candidate on the ballot regardless of the party preference of the

voter-Candidates with 2 highest vote totals move on to the general election

-Facial Challenge to the law (Which Thomas says is not favored)*Problem: the SC is creating a model electorate (let’s just wait and see what happens)-“as applied” duplicates the process (how would this even look, asking voters what

they thought of the ballot?)I: Does WA nonpartisan primary scheme, have the same C deficiencies as Jones (allowing primary voters who are unaffiliated with the party choose the party’s nominee)?H: NO, -Claim that this allow voters unaffiliated with the party to choose the candidate-This primary d/n choose the party’s “nominees”, rather, this is winnowing candidates (top 2 proceed regardless of party affiliation)-Claim: this burdens the associational rights of voters who will assume that candidates in GE are party nominees

-This is SPECULATION of voter confusion. Since this is a facial challenge, we can’t strike the statute down on the possibility of misinterpreting candidate’s party preferences

-Court is confident that the ballot can be printed to avoid voter confusion (EX: disclaimer explaining party preference/candidate statement/ads to the public)-Because the court has determined that there is no severe burden, no state interest-weighing-is neededRoberts/Alito (Concur)-Q of whether voters perceive candidate and party to be associated. If C is infringed, depends on how the ballot looks. -Thinks the ballot can be printed in a way that is C clear to voters.Scalia/Kennedy (Dissent)-WA is doing this to allow candidates to tap into the party’s brand-The ballot for GE causes a party to be associated with candidates who may not fully represent the party’s views. -WA here, is trying to undermine political parties (Decrease the effectiveness of political party endorse; increase more moderate candidates)-WA does not have to favor political parties; but they cannot permit their demise-Party support of a candidate makes a huge difference for the effectiveness of the ballot.-HUGE burden and not NT-Associational right to protect is the right to believe in something. Maybe he is just constitutionalizing what he thinks a political party should be.

Q: What about Tashjian?

NOTE: Roberts court has a lot of confidence in VOTERS. Exit strategy with regard to SC and C the vote. Maybe not wanting to get involved in intra-party disputes

-Scalia: Does not want wishy/washy association. He wasn’t crazy parties

NOTE-NY State Bd. Of Elections v. Lopez Torres (2008): NY elects trial judges (party selects nominees at convention with delegates). Candidates could also get on through a petition process. P complained that it was so hard to get nominated, or to get on ballot through petition. SC-rejected P challenge. SC held that party leaders are able to invoke associational rights of political parties (not individuals). And there is not right to a “fair shot” at winning.

D. INTERNAL AFFAIRSEu v. San Francisco County Dem Central Committee

ADD THISE. ENTRENCHING THE TWO PARTY SYSTEMTimmons v. Twin Cities Area New Party (1997) [ F: MN law prevents fusion candidates - can't be candidate of > 1 party. New Party wants to nominate incumbent

-@ time law adopted, Rs dominant, 3rd parties were aligning w/ Ds) I: Does prohibition of fusion candidate violate 1A or 14A H: No.

-Fusion Candidates-In some ways - makes ballot more informative (candidate of "right to life party")

-Major parties court 3d parties - may moderate major party's position-3rd parties like b/c candidate may actually win (anti-fusion laws are attack on 3rd parties)

-Often to get party on ballot in future elections, need successful past candidateH: Has right to choose standard bearer (associational right), but not right to put on ballot if already there -Ban d/n affect internal party affairs & associational rights b/c party can endorse

-Views burden on New Party's assn rights not severe -Does it matter that anti-fusion law makes things impossible for 3rd parties?-Ct says legit state interest in political stability & 2 party syste, -Many laws hurt 3rd parties, this is the same (ex. need 50% to win creates 2 parties)

-# reasons for these other laws are stability, etc. & only reason for antifusion is preventing 3rd parties -p. 305 "States have a strong interest in the stability of their political system..."-State can decide pol. stability best served thru 2 party system (Up to MN legislature to decide that political stability is est served through a healthy 2 party system.)

-How can this (preventing competition) be a legit. interest?-Court is making this up as a value worth protecting - furthering forces of entrenchment

-If ct going into the political thicket, is going the wrong direction-Stevens dissent: law intended to hurt 3rd parties & that should weigh against Constitutionality

-Does this contradict Tashijan? (?)

NOTE: Think of the role of the courts in these cases. When will the state say this law is impermissible? What should the court do?

-elevate scrutiny if anti-competitive?-Leave to the political process?

PREACLEARANCE AND THE VOTING RIGHTS ACTA . The Struggle for Black Enfranchisment (65)

Giles v. Harris (1903) [Justice Holmes saying that Congress must get out and fix this]-Background: huge amount of black participation in 1870s-90s, then C conventions disenfranchiseF: Giles denied the right to register. He had been voting since 1871. AL C allowed people registered before 1903 to be registered forever. If not registered, harsh tests applied and must register in a limited window. The cut-off was right before the time blacks were even allowed to register.I: Was AL C unC and was equitable relief (through registration) available?H: No effective equitable relief is available. -P asking for either: (1) order AL officials to register him OR

(2) throw the entire system out-Ct claims that P is asking for both the AL C to be declared unC while at the same time asking court to register himBUT, court could just do one or the other-Political Concern: Holmes is really worried about courts getting involved in every election in the state. This is Lochner (equity can’t enforce political rights-legislature must be doing this).-we should be deferring to the legislature (BUT shouldn’t we only defer bc the legislature is majoritarian…and here blacks are completely disenfranchised and thus need protection-Holmes won’t enforce reconstruction right now-This case showed that notwithstanding the 15th A, the SC would not intervene.NOTE: later Giles brought a legal action, and the SC held the same before (Catch-22)

Giles v. Teasley (1904) A [AL SC rejects action for damages]1. If he is right and AL C violates 14 and 15A, then registrars had no standing to register2. If registrars did have authority, their decisions were legally immune.-After Giles, Congress refused to seat some S legislators because blacks had been disenfranchised (Then Congress says that the SC is the proper place to resolve enfranchisement issue)-White supremacy is less entrenched than Holmes thinks it is (But, would a different result in Giles have mattered? Maybe because the things Holmes thought were entrenched at the time of Giles actually became entrenched because of that decision.Pildes noted that C conventions were only passed by slim majorities (white supremacy not entrenched yet)

NOTE: Giles, is a heads up to Congress to get out and change this. Took 60 years to

Guinn v. United States (1915)F: Grandfather clause for voting, which allowed people who were eligible to vote on 1866 (and their lineal descendants) to vote, and required a test of others (blacks) who did not fall in that category.H: Grandfather clause, while not discriminatory on its face, violates the 15th A because the date chosen for the grandfather clause was before blacks were allowed to vote.

Lane v. Wilson (1939)F: Post-Guinn, OK creates registration scheme that requires that voters either (1) voted in last election; or (2) register to vote in 2 week period.-Distinguishes on Giles (that Giles was an equitable claim, this is a legal claim)-12 registration period only applied to blacksH: This statute violates the 15A, by placing an onerous burden on blacks who are not accustomed to voting to register within this short time period. (paternalistic view)-Literacy Tests Examples (77-83)

Congressional Power (for VRA) VRA enacted under § 2 of 15A Congress is enforcing voting rights, rather than the judiciary, through the VRA 1965 Why no change until 1965? Baker, Brown v. Board: Shift of power to allow Congress to take action (Baker

led to redistricting in 1960s). Contested whether Congress has the power to enact the VRA (& then reauthorize)

Pre-VRA: Congress had DOJ bring suits on behalf of individuals

Voting Rights Act of 1965 (1233) Remedial Section only applies where state or political subdivision (“county or parish, except that where registration

for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting”) is a covered jurisdiction (BC): § 4(b)

1. Maintained a test or device (literacy, education, good character, prove qualifications by voucher of registered voters) on Nov. 1, 1964 AND

2. Less than 50% of voting-age residents were registered 1964, 1968, or 1972 Presidential Election OR voted in these elections

*This is unreviewable. States cannot opt out! 2. Suspension of Tests: required to suspend tests for 5 years…FREEZE, no changes UNLESS 3.** Preclearance (§5): Changes with regard to voting (elections) have to be Civil Rights Division DOJ OR the

Declaratory Judgment in DC DistCt-“standard, practice or procedures” with regard to voting

You (state) have to prove that the change won’t have an effect or purpose of denying vote based on race Opposite of normal presumption of validity to legislation-rather presume INVALIDITY §5(b): If standard makes it harder to elect candidates of choice: that has the purpose of abridging the right to vote

and thus preclearance is denied. § 2: Sounds like a restatement of 15A

Discretion and the Literacy Test ……………………………….. 76-84

459-461

B. CONGRESSIONAL POWER South Carolina v. Katzenbach (1966) *still good law (461) (As against the states, Congress with some evidence will win…RB)F: SC wants a declaration that the VRA is unC and also wants an injunction against enforcement. SC under VRA, because they used to have literacy tests, but the only thing they want to do is keep the polls open longer. SC did not get preclearance on the new change.I: Has Congress exercised its powers under the 15th A in an appropriate manner with relation to the States?H: YES. Congress may use any rational means to effectuate the 15th A, to effectuate the constitutional prohibition of racial discrimination in voting. (RB test). VRA is constitutional because of all of the history of discrimination and the VRA is effectuating the 15th A.

-Congress has the power to forbid things that are not necessarily unC-15th A supersedes contrary exertions of state power

How does Congress know that this needs to be fixed? *Historical backdrop of unrelenting defiance by Southern states. Big problem calls for a big solution. Case by case basis is not appropriate, Congress has enough evidence on the basis of -Is this within Congressional power to enforce 15A?

-Yes, because there is no rational way to solve the problem (not a case-by-case basis)-McCulloch v. MD: “Congress shall have the power to enforce C by appropriate legislation”

-VRA = “inventive” under Congress’ 15A § 2 Power (satisfies RB)1. Imposing remedies on parties that have not been adjudicated to be unC2. Confined to a discrete area-targeted (in the “Covered districts”)

-Q: Why is it appropriate to suspend tests even though Lassiter said that tests were ok? Cong. Can proscribe even if not unC.

*Looks like Congress is overruling the Court-Court rules that something is unC, but Congress can go broader to get at the unC thing.

Black Dissent: This is radical. Not within Congres’ power under § 2 of 15. This is a republican form of government, you

are restructuring govt that 15th A was not designed to do.

Katzenbach v. Morgan (1966) [RE: Power broad under § 5 of 14th, Congress can expand the A…but cannot restrict it] F: NY literacy test. § 4(e) of VRA provided that if you completed the 6th grade in PR and were educated in a language other than English, you could not be deprived of the right to vote because of your inability to read English. I: Is section 4(e) within Congress’ 14A § 5 enforcement power? (Can Congress prohibit NY from doing this?)H: Yes-Congress can do this even absent a record of C harm. Ratchet theory, Congress has the power to enforce the 14th A. Key is the prospective discrimination model, because of the potential for discrimination later on in housing services. -NY is arguing that it is the province of the SC to say what the Const is. Congress is not enforcing the 14th EPC by saying that literacy tests are unC (because literacy tests were upheld in Lassiter)-Expansive notion of Congressional power in § 4(e) [Congress can prohibit literacy test bc of discriminatory practice of literacy test] (476, FN 14) [RB]

-Congress might have questioned whether NY args were real reason or whether prejudice played a key role in enactment.-MIGHT be invidious and Congress can enact 4(e) to get the problem

3 Justifications for Congress’ Ability to Enact § 4(e)1. Internal to Voting (Potential for discrimination, above)2. External to Voting (helps prevent discrimination in other areas of public services-although no evidence of this) (future prospective violations)

-Congress can remedy by giving political power to solve the problem-Distinguishing VRA from other Boerne problems: helping people protect themselves*Congress has greater power in this area because vote is preservative of other rights

-§ 4(e) as enhancing political power: SC says that it is not for us to review and balance- Congress does that (HUGE DEFERENCE To Congress even when Congress did not look at any evidence)3. Education: IfSC v. Katzenbach (15A case) This is 14A § 5.

-What is the C problem that C is enforcing? -Court is moving away from race to protect language minorities.**WE are moving to preventing all racial discrimination in voting.-Prospective discrimination model (Katz thinks this)

Brennan (Ratchet Theory): Congress can expand C protected, court determined rights, but NOT restrict them (Rejected in Boerne)

-Can only go in 1 direction (expansion, not constriction)Dissent (Harlan/Stewart): Critical that 4(e) is upheld but there are no hearings/reports/findingsdissent says this is not good enough.

What is left of the VRA in the modern framework? Battle of Congressional POWERCity of Boerne v. Flores (1997) (480) (Gets rid of Congressional discretion in these cases)Background: Free exercise clause applied to fdrl govt, incorporated to states (right to observe religion without interference)-Pre 1990: test was affirmative right (govt needs a compelling rsn/NT to restrict religion even if part of general law) + State cannot single me out!-Smith Case (Native Americans denied unemployment because smoking Peyote)-CT uphold generally applicable law against drug use-no religious exemption. And SC only requires a good reason to infringe on religion)-After Smith, Congress responds to Smith with RFRA to restore compelling interest testF: Church in TX wants to expand. Building part of historic restoration zone and state declares it cannot renovate. Church argues this violates RFRA. SC strikes down RFRA.I: Is RFRA constitutional? NO. RFRA goes beyond the scope of Congress’ powers under § 5.H: Congress’ power under Reconstruction Amends is REMEDIAL in enforcement. However, Congress does not have the power to redefine the meaning of the 14th A. Thus, RFRA went beyond the powers in §5 of 14. Congress cannot expand the power of the 14th A, Congress just has the power to ENFORCE -Congress needs “congruence and proportionality” between the means adopted to protect the substantive right and the remedy. We need findings of intentional discrimination (generally applicable laws being applied discriminarily)-CT explicitly overrules Congress’ “substantive power” holding of Morgan (Ratchet Theory not good)

BUT, part of Morgan that is still good law: Congress has the power to address prospective discrimination in the political process by manipulating voting rules-IF Congress is to use remedial power of § 5, must be explicit, documented legislative record of C harm

(Boerne, did not have any record…but a lot of VRA cases did not have a record either)EX: Morgan (literacy tests are in general linked to discrimination) vs. VAWA (not enough findings (but actually there were a lot).

**All cases mention that the VRA is different (maybe because of the 5 year limit)-Boerne replaces deferential std and says that this is a stricter rule. (Congress is presumed to be suspect)

What is left of the VRA after Boerne?

Oregon v. Mitchell (1970) (477)Facts: VRA amended to bank all literacy tests nationwide. AZ challenged the ban, claiming that literacy tests in AZ had always been fairly administered. Issue: Does Congress have the authority under § 5 of the 14, to enact a nationwide ban on literacy tests?Holding: Yes. Congress in enacting the literacy test ban had before it a long history of discriminatory use of literacy tests to disenfranchise voters on account of their race. Congress could have determined that literacy tests are discriminatory.-No specific findings of discrimination required, just rsnbl assumptions about potential discrimination are sufficient.Stewart: Congress was not required to make state-by-state findings concerning the impact of literacy requirements on black’s access to the ballot box. Congress may paint a broader ban than the Constitution.

How do we reconcile VRA and Boerne?-Maybe voting is just different. Not as strong SOP concerns with voting than with RFRA.-Congress has a lot of power with regard to voting + RACE*Congress is powerful when it comes to Race and the vote, but it takes away Congress’ discretion…NOW, Congress needs to prove that something is going on.

-Congress has the power -The record of misconduct in voting is grave-But, 1997, are there rampant discriminatory practices going on here.

-BUT, maybe this is only because of the VRA. Thought that the effectiveness of the VRA is what is keeping discrimination at bay.

-Congress can over-compensate for failure of judiciary for a century-RFRA: Congress was acting too judicially there. Plus, there was no rampant discrimination, no generally

applicable rules applied discriminatorily. -VRA cannot be overruled (it is sacred legislation that is too vital to the structure of the US election system)

Lopez v. Monterey (1999) (481) (Post-Boerne)Facts: The state of CA is not a covered jurisdiction under the VRA, but a county is covered. The state changed the law of how judges were elected (from districted elections to at large-harder for minorities to elect their representatives) and the county implemented this law.County arg: CA is mandating that we change the law. It is unC to require use to preclear when we couldn’t possibly be acting unC (no discrim intent, bc they have to change)Issue: Does this county in CA have to receive preclearance (under §5 of VRA) before the change can be made?Holding: The county must still preclear. The change in the law can still have a discriminatory effect even if there is no discriminatory purpose. Even when the state mandates a change in the law, county must still preclear.

-Ct says that it does not care that VRA is an intrusion of state sovereignty.-O’Connor is looking at 1982 congressional record (no longer the 1965 terrible record)-1st time upholding Katzenbach since Boerne and first time 1982 extension upheld

Dissent (Thomas): federalism costs. There is no C wrong for Congress to remedy here. Wants to say that Boerne changes the analysis…but he is the only one

Constitutionality of VRA: Was it right to reauthorize VRA in 2006?How do we determine whether end of discrimination has been reached in terms of federal court control?Is this the right rule for the current problems? Do we still need this?

Args Constitutional

-Congress has more power with race and the vote (Morgan: remedy is appropriate…not abrogating 11th A sovereign immunity of the state (this is what Boerne does)-Katz thinks that the Morgan would be struck down by Rehnquist if ct abrogated st immunity)

BUT, if there was actual evidence of discrimination, then maybe 11th is ok.-In order to say we still need VRA in 2006, what evidence do we want in the record? (485 actual findings)

-§5 VRA enforcement actions (Voting laws changes that were struck down by DOJ)-registration disparities (gaps in registration)-UM study showed that things were slightly worse in covered jurisdiction (but this was not a record of comprehensive unC conduct in covered Jurisdictions)

-But §5 of the VRA is blocking the discrimination (wrongdoing not fully captured because VRA is blocking all kinds of bad behavior)-Congress is concerned that VRA may be the only thing preventing Jim Crow from happening again.

-BUT, Congress has made no judgments about this. Lack of deliberation about the need of the VRA

Args NOT Constitutional-Violates congruence and proportionality test of Boerne (no recent unC conduct deserving this specific remedy has been shown)-Problem: the VRA is based on 1972 coverage areas -No one ever bailouts*Maybe this is not an all-or-nothing argument…but rather the VRA can be changed!

Northwest Austin Municipal Utility District No. 1 (NAMUDO) v. Holder (2009) (Supp)Facts: Small utility district in TX, which is required to seek preclearance, although there has never been any evidence of racial discrimination in voting in the district. District wants to bailout from the preclearance measures, but the district court held that a “political subdivision” like this one could not bailout.Issue: Is the 25-year extension of §5 of VRA constitutional? Holding: Court evades the constitutional question by saying that the VRA allows a utility district to apply for bailout, because all “political subdivisions” are eligible for bailout. Remanded to Congress, for better findings. The Court resolves this issues on statutory grounds. (Katz said, Congress will not do anything and then court will strike down this section.)

-Being under VRA, this is not irrebutable you will not be bad forever.-Concern is that Congress is legislating in an area with very little evidence of bad intent.

-This decision makes bailout easier. -When SC strikes § 5 down, what does this say about Congressional power? How will Congress be able to remedy problems?-Why do local authorities not challenge this more? Why are there jurisdictions

C. COVERED CHANGES§ 5 of the VRA (Covered Changes)§ 5 requires preclearance when “enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice or procedure with regard to voting different from that in force or effect on” date when Jurisdiction became covered.

-§ 5 prevents a change from being implemented at all (you get an injunction)2 Types of Suits1. Coverage Suits: is this a change with respect to voting OR is this a type of internal government structure?

-Allen/Douherty/Riley/Presley-These suits are almost exclusively brought by voters in st. court-Allen recognized private right of action. Bc the DOJ cannot do all of this. -Result: You get an injunction (the change is not precleared, state told that they cannot do that)

2. Hurdle Suits: Here is this change with respect to voting, is there a purpose or effect that is discriminatory? Are we going to allow it?

-Beer/Richmond/Bossier Parish-Jurisdiction itself is trying to prove that there is no discriminatory purpose or effect

Coverage: Is this a change with regard to voting?

Allen v. State Board of Elections (1969) (487) Facts: 4 cases come in together dealing with the following changes: Changes from district to at large; changing from election to appointment board of education; changes reqs for independent candidates; and allowing judges to help. Each case is challenging the application of § 5 to them.Issue: Are these changes a change with regard to voting? YES. Holding: Court holding that gave § 5 the broadest scope. The examination is not whether the change has a discriminatory effect or purpose, but rather, whether this is a change with regard to voting.

*any change whether good or bad, has to be precleared. (Can you think of any possible chain of events that shows that this change is related to voting? Tell a story…go down the chain of command)*Recognizes a private right of action for § 5 suits

-Note: After Allen, all of these changes are covered (no re-litigation regarding whether this is a change with regard to voting)Dissent (Harlan): §4 and 5 are inextricably related. §5 was never meant to cover changes in government; rather 5 was meant to cover just changes in voter registration, ballot counting, voter qualifications, and standard practices/procedures with respect to voting (change of govt distinction is later adopted).

NOTE: After Allen, every change is COVERED (Until Presley and Riley)

Dougherty County Board of Education v. White (1978) (Expansion of the what is “covered” with regard to voting) Facts: AA is running for the State House in GA, 1st black to run since reconstruction. The SB in GA has a rule that if you run for a political office, you have to take a leave of absence while running. This is put in place after the AA declares his candidacy.Issue: Is this SB policy a change with regard to voting? YES.Holding: if we can tell a story with respect to a change that would be a voting change (whether indirect or direct effect on voting) the change needs to be pre-cleared. Because of this STORY, this is a change with regard to voting (this is a disincentive to run).

Q: if General absenteeism policy….maybe different but the same effect.

Presley v. Etowah County Commission (1992) (497) (Only Change not found to be a change with regard to voting) Facts: Change from at-large districts. Change to districts and the expansion of the board. The county commissioners who were elected under the old system had control of the $ within the district, then some blacks were elected and responsibilities shifted. Commission decides internally that…

1. Old members will be able to keep running the road shops (give out the $$)-new members will be in charge of grounds at the courthouse.

2. Common fund created to decide the budgetIssue: Is this a change with regard to voting?Holding: Internal power allocation and governance structure is not a change with regard to voting.

-If this is a change with regard to voting, then all governance is, and that would be too large of a burden on federalism (Can’t have courts overseeing every budgetary change, or internal change of power)

-Commissioners are still getting elected, they just have different powersStevens Dissent: We can’t cover everything (but in this situation we should).NOTE: This decision could be a function of a different court in 1992 than in 1978. Also, Kennedy is concerned about the unconstrained expansion of the VRA.

-“If federalism is to operate as a practical system of governance and not a mere poetic ideal, the States must be allowed both predictability and efficiency in structuring their govts. Constant minor adjustments in the allocation of power among state and local officials serve this elemental purpose.”-Court is shifting from deference to administrative agencies to no longer deferring.

-Dougherty: AG says something and the court defers.-No longer defer to the AG (AG said that this was a change with regard to voting…court says that when it is unequivocally clear that this is NOT a change with regard to voting-Court will not defer) (Chevron)

Riley v. Kennedy (2006)Fact: Law used to be that vacancy in the AL commission, the AL governor would come in and appoint. Local law requiring special election to fill vacancies on commission (precleared). AL SC strikes down bc inconsistent with state law and violates the AL C. Vacant position filled by the governor rather than by special election.

Claim: need preclearance, bc this is a change from the last preclearance (baseline=last precleared change)Issue: Do we have to preclear something that we have previously done (already held the election)?Holding: NO-We should respect the sovereignty of the Supreme Court of AL to say what the law of Al is. -SC will give deference to AL state legislature-Court is pushing back against the broad C power!

-BOTH DOJ and DC think that this needs to be precleared. However, the SC disregards both of this…and makes it own policy decision.-This stands for the fact that the court is in a different place, and everyone is questioning the VRA, but Congress will not amend it, so the courts will now amend the VRA.

D. DISCRIMINATORY PURPOSE OF EFFECT

(2) Hurdle Suits: Is there a discriminatory purpose or effect? (506)-Assuming that preclearance is required bc a jurisdiction has made a change with respect to voting, when should preclearance be denied?

Dialogue Ct and Congress-Allen-dilution= change with regard to voting (Congress later ratifies this view of the VRA)-Same with Beer=Congress ratifies this interpretation in 1982-Bossier Parish: overturned by Congress in 2006.

RETROGRESSIVE EFFECT?Beer v. US (1976) (pg. 506) Facts: New Orleans is reapportioning after the census. 55% of white, but 65% of registered voters are white. 1960 created 1 district with a black majority, but NOT a black voter majority (no black elected). 1. In 1970 the districts were re-drawn, and there were black majorities in 2 districts, but not a majority of registered black voters to elect their candidate of choice. NO submits the plan and the AG denies the plan. 2. NO comes back with a different plan, where 1 black would be elected…but AG again denies the plan, because the lines were drawn from N-S and should be drawn from E-W. Issue: Did this plan violate § 5 of the VRA for discriminatory effect?Holding: No. Plan’s enhancement of racial minorities does not violate § 5. § 5 of the VRA is only about retrogression (not defined), which means that you cannot make a change that leaves blacks worse off then before the plan was implemented. If the redistricting is making things better for minorities, then the plan does not violate § 5.

Baseline: the AG and DC are saying that you can provide a better option for minorities than this plan (“better” based on some ideal…population, proportional representation, idealized notion of the vote)

-AG cannot deny preclearance because there is no showing of discriminatory intent or purpose. This plan cannot be discriminatory within the meaning of § 5 because blacks used to have no one elected. -KATZ: SC made the decision to make the test easier to apply.

NOTE: The court never looks back on this decision. Is this the right result? LH of § 5 say that the purpose of § 5 is to promote minority victories, but CT here is saying that § 5 is not about equitable representation. However, Congress never presses back about this decision.

Baseline: not backsliding from what we have today (Baseline=status quo)

Appeal of retrogression?-Clear std v. unclear ideals of what makes things “worse”-Administrable? (But, what is “worse” and in administering this is really hard to apply)

-Kennedy: 1/10 1/11 is not retrogression (1-1)-Is every time a jurisdiction gets another representative, do the lines have to be re-drawn to have another majority black district?-What is precisely the right # of blacks in a district to NOT have retrogression? (97% black, but then dilution through great concentration…we don’t need that many blacks to get a candidate of choice elected)-Baseline is always moving, once you improve, the baseline moves up to the new standard-Black voters had nothing before the VRA, so is the baseline 0?

GA v. Ashcroft (2003) (510): State legislatures drew a new apportionment plan for the state senate that decreased the concentration of black voters in several districts to increase # of seats controlled by Dems.Held: No retrogressive effect. Totality of the circs shows that minorities are NOT worse off.

Retrogressive Purpose? City of Richmond v. US (1975) (513) [Hard to define what is “worse” in the annexation context; CT upholds plan that makes things worse off for blacks…does not analyze under retrogression.]Facts: Annexation of the city to find voters (Richmond in 1970s is 52% black). Annexation always dilutes existing voter strength. Often, there are reasons for annexation that are other than vote dilution.

-Richmond 52% black –42% black (But, blacks still able to elect the same # of -City and AG worked out plans for district based elections (allowed 4 black majority districts)

Plan sent to DC to preclear, and DC says that the city is acting with a bad purpose, and could have drawn 5 districts of black majorities.Holding: Even if things may be worse off for blacks, AA have enough representation and are not under represented in the state. If a city annexes, we are going to look at proportionality between districts and racial groups, rather than retrogression. (Is this proportional in terms of where they were before or after the city is anenexed?)-Even though they have intent (bringing in white people to dilute the black vote) we no longer KATZ: If the court was to say that this was retrogression, then every time a city had to expand, then they would have to preclear, and only annex a city with the same racial composition of the city.

-Court does not use “retrogression” (this plan makes things worse for blacks)Q: What is the baseline here? Blacks are not under-represented as compared to what? Proportional? Who knows.

RETROGRESSIVE PURPOSE?Reno v. Bossier Parish SB I (2000) (not in CB)Facts: Police jury redistricting precleared by AG. Same lines redrawn by SB, same plan but NAACP proposed plan for 2 black majority districts (SB did not adopt) and preclearance is denied on the basis of “new information”.

-Districts drawn so minorities won’t elect candidate of choice (but NOT retrogressive 0-0)-AG rejects plan based on § 2 VRA language

-Black majorities can be drawn in 2 districts and failure to do this=reason why we d/n preclear-AG: Discriminatory effect under § 5 includes violations of § 2.

Holding: Dilute plan is not retrogressive within the meaning of § 5. Preclearance is not necessarily denied because proposed change would violate § 2 of the VRA.

-Beer says no preclearance if retrogressive OR violates the C (Understanding that precclearance can be denied for both)

-Court here says that Beer was only about retrogression, not about violations of § 2Federalism Costs: Court does not want DOJ determining what violates § 2

**NEVER brought the § 2 claim.

Bossier II (Congress overrules this in the 2006 Amendments to the VRA: no retrogressive intent needed) (Scalia)Issue: Does the VRA prohibit preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose?Holding: Discriminatory intent that does not have retrogressive effect does not violate §5 of the VRA, so you must preclear. Retrogression applies to PURPOSE and EFFECT. Retrogression applying to effect makes it really hard to bring a suit.

-If effects prong=retrogressive, purpose has to be too.-Effect: read narrowly because effects do not violate the C-discriminatory purpose: violates the C, so no limit what you need to preclear bc this is the DOJs job

Why is the courts so expansive on coverage, but constantly lowering the hurdle to get precleared?-Concerns of the wearing away of the C (if we interpret §5 broadly, might make § 5 unC)

**Court is signaling that it is not so crazy about VRA anymore.

**2006 AMENDMENT: NO discriminatory purpose required with regard to retrogression.Beer Baseline: Status Quo (Whatever you had previously done)-How much discrimination is needed after Bossier? Who knows.

** PURPOSE: now only covers the incompetent racist, the person who actually comes out and says that

they are purposely discriminating.

Vote Dilution Majority Rule and Minority Vote Dilution: C and Legislative Approaches (527)

Why are we in § 2 rather than § 5?-§ 5 process probably did not work…so we are in § 2.

Intro (C Qbut in 1980s under VRA, bc the VRA eliminates the need to find intent)Blacks are getting the ballot…but are they getting enough representation?-What is vote dilution and why might it be problematic in a majoritarian system?

-How do we separate ordinary political losses from impermissible voter dilution?-Sometimes your candidate just loses.

-Racial Bloc voting: Should it matter? By recognizing (creating maj-minority) are we perpetuating it?MMD (Multi-member district) v. SMD (single member district)

A. THE HARM-Pre-Whitcomb: court hinted that racial vote dilution might be justiciableForston v. Dorsey (1965) [H: No 1P1V problem with hybrid MMD and SMD]

-left open the Q of if a MMD might be unC if it operates to minimize/cancel racial political strength

Whitcomb v. Chavis (1971) [no C violation by at large MMD with concentrated minority population] (529) Facts: IN legislature elected by some SMD, and some MMD. Marion county =MMD and mostly black. If SMD, blacks could elect candidate of choice.

-Claim: Blacks can’t elect candidate of choice, so they want a SMD where they can win. Claim, under EPC, our vote is diluted, our vote does not count as much as your vote.Issue: Do MMD violate EPC of 14th A bc of disproportionate representation? NO.Holding: The mere fact that an interest group has found itself outvoted and without legislative seats of its own provides no basis for invoking Constitutional remedies where there is no indication that this segment is being denied access to the political system. 1P1V is all you get. Participation is all you get. 1. Court finds the claim justiciable (for the first time)2. No violation of EP here, bc C does not command lines drawn in a certain way

-Local governments can decide how to draw lines (and maj-minority districts are not always good)-Local govts can choose between lg influence in small district and small influence in large district-White says that fact that senator is ignoring you is not a C violation (EPC does not speak to the proper role of

the govt)3. Lost bc D, not because Black. D party listens to you, they just keep losing.

*White focuses on the participation of blacks in this election (532)…but claim is about not being able to elect candidate of choice, not that blacks cannot participate.**Discriminatory Intent is not alleged here. Ct: If you drew the lines with the purpose to dilute this is not ok.

White v. Regester (1973) (538) (C violation of MMD based on list of factors (no intent looked at)) Facts: MMD in TX-Dallas County-discrimination against blacks, Bexar County-discrimination against MX Americans.

-Claim: minority voting strength dilutedIssue: Did TX invidiously discriminate against racial groups, thus violation EPC, 14th A? YES.Holding: To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The P’s burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect candidates of their choice.

-This becomes § 2 VRA (intensely local/factual analysis) without necessity of showing of intent in 1982**Not that MMD are always unC, rather that they are just deeply suspect. Jurisdictions that draw them, will run into problems. C does not say that at-large elections are not allowed.*While minorities get to vote, there is still a problem because this goes beyond merely casting a ballot.

Each of the following facts is not unC by itself…but added together=problemViolation in Dallas County (black minority) (Internal to voting problems)-White candidate slating group (but not state action…private action); history of discrimination-Using MMD with other factors-need majority vote to be elected, place system (run head to head for a place)

-Candidates elected don’t care about you

Violation in Bexar County (Hispanic minority) (external to voting problems)-History of discrimination in education, language barrier, public services, voting___________After White v. Regester is decided, Zimmer is decided (challenge to at-large elections)

ZIMMER [Things you have to show to demonstrate that a MMD is unC (violates EP) (543)Vote dilution may be found if…

Lack of access to candidate selection (slating) Unresponsiveness of legislatures to your particularized interests Tenuous policy underlying preference for MMD or at-large Existence of Past discrimination (in general precludes effective participation) Finding enhanced by showing at- large districts, majority vote requirement and anti-single shot

vote provisions (Anti-single shot: *All factors lead to a strong case…proof of vote dilution is enhanced!

*White TEST: Becomes § 2 of VRA (minus intent, which is inferred in Mobile)TEST: P has the burden of showing that the electoral process was less open to the group in question, and that the group in question had less opportunity to elect the candidate of their choice. (ZIMMER factors help you to make your case)

Q: Why is White different than Whitcomb?-Both are at large with a concentrated minority group. C violation in White, none in Whitcomb.-Whitcomb: North v. White: South (history of discrimination)-Whitcomb: Ds responsive, but just happen to be losing-White: Slating-no place in system where black votes matter (less opportunity to participate in the process)

B. INTENT—Transition to VRACity of Mobile v. Bolden (1980) [Ct finds no violation, but there is “something wrong in Mobile”] Facts: city of Mobile is governed by 3 members elected at large since 1911 (common governance scheme)Issue: Does the at-large electoral system violate the C rights of blacks (used invidiously to cancel out votes)?Holding: No 15A violation, no 14 A violation (P failed to show discriminatory intent).

15A: No violation of 15, because blacks can vote14A: Applying the Zimmer Factors…

1. No blacks are elected to the council (but they are allowed to vote) (losing an election different than no being able to participate fully)

2. Discrimination by elected officials (if individual discrimination by officials, go sue them individually)3. History of Discrimination (can’t hold this against them forever)4. At large System (you could structure the at-large district that would allow for more influence…but since

there is no proof of discriminatory intent, not req to draw more advantageous to blacks)-Q: Does this overrule Katzenbach v. Morgan (ok for Congress to mess with political participation rules to deal with discrimination in other areas-Literacy tests prohibited, bc this leads to later on discrimination in public services)?

-No, Katzenbach is preserved in Boerne…plus that was about a lit test being used to deny the right to vote (§5). This is about dilution.

-DISTINCTION: Ct says Congress can prohibit a literacy test, even if it’s not a C violation.-Ps here: Want to say that VRA prohibits the line being drawn here, bc there is actual unC conduct (but C

does not prohibit this line)VRA (P brought this claim as well…but §2 says exactly the same thing as the C, and therefore if not unC, no violation of the VRA)….which is why the VRA is amended to prohibit a lot of C conduct.

White (Dissent): Finds intent here (based on the White v. Regester factors) (dispute with majority about whether these factors indicate intent).Marshall (Dissent): Finds intent, Majority is too stingy on the std. Also, goes even further than White.

2 strands of EPC1. Suspect Classification: only need bad intent2. Fundamental Rights: Voting (still need bad intent)

-NOTE: That Stewart (Majority): Marshall’s theory will lead to proportional representation, and we cannot have that.

C. THE 1982 VRA AMENDMENTS1982 Amendments to the VRA (VRA § 2 amended and eliminates the need for intent)

Following Mobile, vote dilution litigation is halted, bc we can’t prove intent. But, there is still something wrong with Mobile.

-Nobody the blacks vote for gets elected, racial bloc voting.-no “natural majority”-majority is only defied by lines.

Amended §2 (Eliminates Intent and implements a RESULTS based Test)(a) No voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by

any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the US to vote on account of race, color, etc.

(b) A violation of (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision or not equally open to participation by members of a class of citizens protected by (a) in that its members to have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of protected class have been elected to office is one circumstances which may be considered. (But no right to proportional representation). [This is codifying Regester].

Result of Amended § 2 Shift from needing to show discriminatory intent, to showing discriminatory effect (intent is too hard) Once you satisfy the Zimmer factors, we will infer intent Courts Remedy to Racial Vote Dilution: Majority Minority Districts

-This is not the only remedy. There are other possible solutions. Racial Bloc Voting

-w/o evidence of this, courts assume no remedy needed-the political process is working-Some think that when racial bloc voting stops, then you no longer have a §2 claim-Problem: Majority minority District (§2 remedy) perpetuates the problem (you are not forcing compromise or coalition building among minority voters and majority voters)

Senate Factors (582)1. History of Discrimination2. Extent to which elections are racially polarized (racial bloc voting)

**This is added in to dispel concerns of proportional rep, and ultimately becomes the KEY factor to win a § 2 suit.

3. Unusually large districts, majority vote requirements, anti single shot4. Denial of Access to slating5. Discrimination in other areas of public service6. Are political campaigns overtly racial7. Extent to which minorities elected to office8. Other Factors-lack of responsiveness

RACIAL VOTE DILUTIONA. Gingles – The test for racial vote dilution – 3 prongs – 1 - Sufficiently Large and Geographically Compact and Political Cohesion

Thornburg v. Gingles (1986) [Claim for §2 violation, minorities want SMD-3 prong test for liability] Facts: Black residents of NC object to the districting, there are 6 MMD, 1 SMD

Claim: Blacks claim that it is hard to elect the candidate of choice and participate in the political processDC: applied the “totality of the circ” test from §2(b) and found § 2 violation because they found

official discriminationWhat is the issue that the SC is looking at?

1. DC gave too little weight to blacks being elected2. Racial bloc voting: DC looked at causation to determine racial bloc voting, and did not take

socioeconomic factors out.Holding: Many factors are relevant to vote dilution, but you have to show 3 things to claim that a MMD racially dilutes (made up these factors)

-Brennan wants the VRA to continue to be effective and to continue to work. Thus, he sees the DC struggling in applying the many factors in the “totality of circumstances” test and decides to help provide a more concrete, easier test for defining liability for racial bloc voting.-This decision conflates LIABILITY with REMEDY

*Brennan’s test show LIABILITY, but not a remedy (You do not have to draw the SMD…that is just what Brennan suggested, but now people are drawing districts based on this model)

GINGLES PRECONDITIONS (before you apply the zimmer factors) (to show racial vote dilution) (Brennan is defining liability)

1. Is the minority group sufficiently large and geographically compact?-To be able to form majority in a SMD-alleging that MMD impairs your ability to influence elections.-If you can’t draw a circle around the minority…then not compact (but, if you draw crazy lines to get the

districts…then this shows that race is all that matters.-What is “Compact”? Maybe geography should not be the basis.

2. Is the minority group politically cohesive?-Might be able to aggregate different minorities if they vote together

3. Can you demonstrate racial bloc voting?-Majority group votes sufficiently as a bloc to consistently defeat minority preferred candidate

RACIAL BLOC VOTING (how do we determine this?) a few approaches (NO MAJ on this part) (610)How do we determine whether there is actually racial bloc voting vs. interest group politics?

RACIAL Bloc Voting: Did the white voters reject the minority-preferred candidate bc he is the minority preferred candidate?

1. Correlation (Brennan): look at the race of the voters, NOT the race of the candidate and NOT why they are voting in this way. Congress said that discriminatory intent does not matter and that is what this test is showing. Wants an easier test than causation.

2. Causation (O’Connor): Correlation is enough insofar as it shows that the minority group is politically cohesive. Need to know why minorities are voting a certain way. BUT, causation is important for what the white people are doing.

-we need to know why the black candidate is losing-if that characteristic is not racial, then no problem-if whites are voting for black candidate then you cannot make out a claim-Need to know WHY black preferred candidate is losing-if that characteristic is not a racial one, then there is no problem.

PROBLEM with Causation: Can only be shown through multiple regression analysis3. White: Race of the candidate matters. How do we differentiate interest group politics and racial bloc voting?

**Circuit split on the test to be applied!

Problem with Racial Bloc Voting-Racial bloc voting runs counter to the 14th A, bc we are premising the determination of racial bloc voting on the thought that people of a certain race think the same way.-CANNOT BE SUED FOR RACIAL BLOC VOTING. VRA nor the 14th prohibit it. -Remedy of SMD actually makes Racial Block Voting WORSE (because then the majority minority district is not required to reach across the lines or compromise or collaborate)

Criticism of Brennan-O’Connor: Institutional complaint (Congress made up a test, we should follow that)

-She thinks Brennan made up the wrong test-he is focusing too much on the ability to elect, but there are many other ways to participate in the political process and he is not considering those other

waysGingles +…B. TOTALITY of the CIRCUMSTANCES

Johnson v. DeGandy (1994) [Gingles not enough to find a §2 violation, also need totality of the circumstances] Fact: Challenge to where the boundaries should be drawn. FL redistricting plan-divided into 40 Senate districts and 120 H districts. =SMD!Claim: FL redistricting unlawfully fragmented a cohesive minority community (could have drawn maj-min districts and did not.

-DC found that § 2 was violated…minority group satisfied Gingles (9 maj-min districts and could have drawn 11, so violated §2)-Also, FL failed to draw a black Senate district (but that would have been at the expense of a

Hispanic district)-either no violation or no remedy (SC affirmed)NOTE: Change from past § 2 Cases

1. Used to be MMD, now claim SMD dilutive bc of how the lines were drawn2. Paradigm: Used to be black/white, not multiple minority groups claiming

Issue: Was §2 of the VRA violated? Does § 2 require that the legislature give the maximum possible voting power to minorities? NOHolding: While Gingles 3 factors are met, that is not enough to find a violation of §2. Courts must also look at the totality of the circumstances.

-SC says that the DC was not critical enough in asking whether the history of discrimination and bloc voting behavior portended any dilutive effect from a newly proposed districting scheme, whose pertinent features were majority-minority districts in substantial proportion to the minority’s share of the voting age population.*DC did not take into account that the new plan had a lot of majority minority districts.

Proportionality (NEW factor in totality of circs test)-# of majority minority districts where you can elect candidate of choice in rough proportionality to minority population.

-Equality of opportunity, NOT proportional representation (Prop Rep: not entitled to certain # of candidates of your race)-DADE county: Hispanics 50% of district, roughly 50% districts are maj-min (whole state as baseline)

Can Proportionality be a defense, to a claim of § 2 violation?NO. Proportionality is just 1 factor that weighs against liability, but is NOT a “safe harbor” from liability-Otherwise, this would create an incentive to draw districts where unnecessary and dilute in another area**”Minority voters are not exempt from the obligation to pull, haul and trade to find common political ground,

the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.”** (Souter)

-Essence of American politics: Maybe you don’t get the candidate of choice, but you have the opportunity to pull, haul and trade*Ct is saying that they do not like Brennan’s idea (BC Brennan’s system is creating a system of 2nd Best); queasy about Brennan’s idea of SMD, majority-minority districts.

**IS the Baseline, the max that minorities can receive? NO, just must be proportional.Q: Post DeGrandy…

-Can you avoid liability after this by drawing coalition districts/influence districts? Is that enough?-If there could be influence, MUST you provide that influence?

CURRENT REMEDIES: When minority voters are not getting anything (get middle box)When minority voters are getting something, nothing better is required (Can draw the X)

Page v. Bartels (NJ Case) [unpacked but still electing candidate of choice-no § 2 violation] Facts: NJ spread out black voters, but “unpacking” maj-min districts/Issue: Was there a violation of §2? NOHolding: Black voters are electing candidates of choice, even after the majority-minority districts are “unpacked”. § 2 is not violated, because minority candidates are still electing their candidate of choice. § 2 does not require you to draw more majority/minority districts than necessary.

-Does § 2 not apply? OR is § 2 being followed?-Are minorities pull, hauling and trading to get the preferred candidate of choice?

Rural West TN African American Affairs Council v. McWherter (1995)Facts: 3 majority minority districts for the state senate. P challenged this plan under § 2 on the ground that black voters could be concentrated in compact 55% black district. State argued that while the creation of a majority black district in W. TN would likely increase the # of black state senators, such a change would reduce the overall influence of black voters in the state senate.

DC: § 2 is about maj-mi districts-state must draw, can’t make the decision that voters are better served by spreading. §2 favors maj-min over influence where there is racial bloc voting.

-DeGandy is decided, and Rural West is vacated and remanded (think about this some more)Issue: Was § 2 violated? NOHolding: DC decides that the large, but not majority black populations in the district in W. TN would be able to exert substantial political INFLUENCE in those districts, even if those districts were unlikely to elect a black senator. Influence districts are OK in addition to other maj-minority districts.

-25%-50% of voting population possesses legally significant influence that cannot be ignored-Testimony from white representatives (Cohen) that they need the black support to win.-KATZ: This is partisanship, nothing more, what were they supposed to say?

BLEACHING HYPOTHESIS-As a function of maj-min district, the surrounding districts become whiter and more R-Hypothesis assumes black voters influence elections without having maj-min districts

-But ignores that blacks elected to the legislature could also impact policy-Substantive representation-Descriptive representation

ARG vs. Hypothesis: We need black faces in the legislature (bc of horizontal influence)-Tradeoff aggregation + Governance: to get a better government-assumes that there is no influence in the electorate, so need maj-min districts, bc have influence in the legislative process.

NOTE: Both sides of this argument, argue that there is influence in one but not the other (electorate or legislature). **Assumption here: that -Maybe we need competitive elections to make this matter? Then voting influence will actually matter-Maybe Rural West is right, need some maj-min and some influence (but who decides this? The court/legislature?)

-NOTE: Richard Shelby wins AL bc of black vote (bc D, he is NOT responsive to their interests)Example of complicated relationship of race and party, may vote for party not for candidate themselves

C. SUBMERGENCE: Beyond Dilution Through Submergence (673)Holder v. Hall (1994)Facts: Blacks make up 20% of Bleckley county, single commissioner form of govt (1 person does executive/legislative, etc.) 10 other counties in GA use this form of govt, 159 use multi-member commissions. Blacks are 20% of population, and they want a 5 member district (so they could have 1 representative).

Issue: Does the size of the governing authority violate § 2 bc of vote dilution?Holding: Can’t challenge the type of governance as dilutive, under § 2 bc there is not reasonable benchmark (it is not a standard, practice, or procedure). § 2 is not about the size of the government (and not about proportional rep-1982)

-Kennedy wants to know what an undiluted vote looks like (We need a baseline…if we used to have 5-member and then go to at-large)

-K does not care about what other districts are doing (Simply bc this is a common procedure, does not mean that this is right)

Presley (§ 2 not about internal governance workings) + Holder (§ 2 not about overall governance structure)-VRA is about participation and elections: not about the structure of govt.

-Political Theory: Possible vote dilution, if there was a baseline to go off of.

Thomas/Scalia: No vote dilution claim should be included in § 2, § 2 is just about access (but that can’t be right) (You should never draw the Plus sign, because you are -agrees that the size of govt is not a “standards, practice or procedure related to voting”-Says Court went wrong with Allen: Never should have said that districtat Large is a change with regard to voting. (This is Govt structure, NOT a device)-Court’s choice of SMD, maj-min districts are NOT C requirements (nothing inherently true about this)-Court is currently engaging in political theory; and this theory is a bad one: it gives credence to the idea that race defines political interest…and further eliminates the need to form coalitions.

COUNTER: Thomas has a political theory too (Just casting the ballot…access only, individual right only)-Problem: with this political theory, is that we are grouping ppl together based on race, and EPC is about an individual.

-Thinks that these race policies are harmful to the beneficiaries and destructive to our sense of self-Thomas: We should overrule Allen and Gingles: § 2 is unworkable and ill-suited for the judiciary.

IS Thomas Right?-§ 2 must deal more than just with access: Access does not help us with what is wrong in Mobile (something beyond just intentional discrimination).-§ 2: Supposed to reach vote dilution (Congress explicitly amended to reach vote dilution)

What about problem that Congress is throwing the Q back at the SC? (what is the soln for this problem? Congress just keeps re-authorizing VRA, no dialogue, etc.)

-Invoking Colegrove (these Qs are not for the court to handle)-Is this an unC delegation for Congress to be throwing the Q back at SC?

Response to Thomas’ 3 rd Political Apartheid EK: VRA does not think people think alike, rather VRA is looking at data that shows that people vote alike.-We are resisting drawing on racial lines, but is this such a bad thing? This is a political Q.With the doctrine, people will just begin drawing SMD to avoid liability under §2. If states draw SMD and then a group says that they are not cohesive, then what happens?-people will begin claiming that the VRA made them do it (BUT, that is not the truth, VRA gives discretion, and there is no set remedy)EK: Thomas is wrong about congressional history; gives too little weight to fact that VRA gives discretion in remedy. Thomas is uncomfortable with political theory, but he has his own political theory. Wrong about inflexibility of the law dictating a plus.

**Concern that court will pull back too soon, before coalitions are made.

Butts, Jeffers, Clements, & Ortiz …….……..……………………690-696D. FELON DISENFRANCHISEMENT (696-700)Can the VRA get at Felon Disenfranchisement?

CLAIM: Arg that felon disenfranchisement violates § 2 bc it is a qualification for voting which results in a denial of the right to vote (with a racial impact, bc of the disproportionate effect on minorities)

-Vote DilutioN: disproportional impact on the black community,

Where is the caselaw? Language of § 2 clearly covers this.-But Congress never intended this, bc C authorizes it (14th A, § 2)

-Closest anyone has come to winning is 9th Cir, said you can challenge felon dis under §2 (but, not violated on the facts)-What is the claim that §2 is unC with respect to felon disenfranchisement?-Ramirez: Says felon disenfranchisement is C, so can Congress prohibit it anyway, on grounds of race discrimination?

-Boerne: There must be a C violation. -ARG: stopping felon disenfranchisement is getting at a C violation (racially discrim purpose) (BUT, still

must be C and P)-But we must have evidence of this…do we have enough?-Get it under the prospective discrimination model under Morgan.

Distinction Literacy and Felon Disenfranchisement1. Felon disenfranchisement is a more diffuse connection to discrimination.2. Literacy test invites discrimination.3. C violation of felon disenfranchisement has a better history than prospective history than

Katzenbach v. Morgan.

E. THE CONSTITUTIONALITY OF § 2 as Amended (Results Based Test)Issue: Does Congress has the power to require this with regard to § 2 (redistricting, etc.) (SC has never confronted it)

-Similar to C of §5 (Boerne problem)-SC just always says that §5 of VRA is OK.

Arg that § 2 is UnC-When Congress uses 14A, has to be C & P to C violation. Where is the C violation in failure to draw maj-min districts. (BOERNE)

-14 is about intentional discrimination. This is hard to show in the modern case (unlike in Mobile)-Can Congress do this even though conduct itself is not unC? Use theory of Morgan (prospective discrim)

-prospective undocumented discrimination in Morgan, its also in vote dilution-Not discrim internal to voting itself, but external discrimination (lack of responsiveness in govt, so

greater likelihood to face discrimination in public services.-Maybe §5 is ok bc there is a time limit on it (based on discrimination in race)-§ 2 does not have an expiration date-§2 commands are race-based on go beyond what the C allows for states to consider of race.

Defense of C of § 2-Racial bloc voting is a time limit on § 2 (no claim without racial bloc voting, and soon this claim will no longer be available).-Govt action that comes out of racial bloc voting (discrimination in housing, education and employment) is the C violation that §2 is addressing.-Results based test…there is a time limit

RACIAL GERRYMANDERING

A . UJO of W v. CAREYUnited Jewish Organizations of Williamsburgh v. Carey (US, 1977)Facts: NY keeps the same # of maj-min districts, but adjusts the populations. 3 nonwhite districts are made more balanced (lessens those with 90% and pulls up those districts that are 50%). DOJ is pushing of 65% minority as the appropriate %, to elect candidate of choice.

-AG denies preclearance, and state submits revision…then gets preclearedPs: 30K Hasidic Jews that are split into 2 districts (previously 1 district, though never a majority). Claim is that the same populations could have been drawn without splitting the Ps.Issue: Whether the use of race in districting (to comply with §5) violations the 14 or 15A? NO (WHAT IS THE CLAIM?)

14A Claim: Treating us different based on race (race based classification-split us to meet a racial quota)15A Claim: Gomillion type claim (fencing out based on race)

**Not claiming entitlement to district but an entitlement to not be split on a racial factor.Holding: No C violation. No doubt that the State deliberately used race in a purposeful manner. But its plan represented no racial slur or stigma with respect to whites or any other race, and we discern no discrimination violative of the 14 th nor any abridgment of the right ot vote on account of race within the meaning of the 15.

-As long as whites as a group were provided fair representation, we cannot conclude that there was a cognizable discrimination against whites or an abridgement of their right to vote on the grounds of race.

**Bc Hasidic Jews are part of white people at large, and they are represented=there is no problem. -Hasidic Jews are a discrete and insular minority, but the SC treats them as undifferentiated white people

-NO Injury to whites: bc Hasidic Jews considered part of white people as a whole. Articulation of the proportionality argument.

Burger Dissent (anticipates Shaw Claim)-Gomillion: Cannot draw a district with the purpose of achieving a racial result.-Drawing based on race rests on the bad assumption that only blacks can represent blacks.-This will only further racially polarized voting

Brennan Concur: Sees claim as white people are relegated to filler status-No dilution claim here…but should be wary3 Reasons why race is worrisome

1. Actually making things worse (Stimulating race consciousness)2. Says its benign, but not sure, may actually be used for bad purpose3. Social cost to those who are affected (Perception of injustice by those adversely affected-Jews here)

**If you can’t make out a vote dilution claim, you have no injury…But a NEW injury is about to be created.

B. SHAW v. RENO – A NEW CLAIM?Shaw v. Reno (US, 1993)Facts: 1990 redistricting. NC 20% black, but the population is dispersed. Plan 1, only 1 maj-min district. AG says you need another one. So, the state re-drew the plan.

-Dist. 1: inkblot, bug splattered; Dist 12: at issue here: Goes along I85 “snake like”Issue: What is the injury? Drew the line based on race…see Gomillion. White voters from surrounding districts are complaining, the sue of race to gerrymander districts (NOT a vote dilution claim, but claiming right to a colorblind process).RULE: When race predominates over traditional districting factors, SS will apply-Not all race conscious redistricting is impermissible-Evidence: When you find disregard for traditional districting factors (Compactness; contiguity; respect for political subdivisions, respecting)-C does not require this, but when you depart from these factors…then the Q is raised of racial gerrymandering.

-representation problem (-O’Connor cites Gomillion: assuming people have same interest based on race even if not.

What is the INJURY? (intentional segregation; expressive harm)-Reinforcing the perception that races think alike; problem with responsiveness of elected officials-Race is too salient in these plans; this is reinforcing racial bloc voting

NEW EPC Claim: The filler people have a complaint. You have an individual right to not be segregated based on race. -There is something harmful in the aesthetics—too much visible reliance on race-“Meaning of government action is just as important as the consequences”-Bush v. Vera: Problematic to have political identity based on race-Something just does not feel right

Standing-Have to experience the segregation personally-have to live in the challenged district. No standing outside the line-Not based on race-rather the harm of putting us all together and saying that we all think the same*Not a filler people claim

Compelling Interests (That survive SS)-Compliance with the VRA (Bush v. Vera)-Compliance with §2 or §5 (LULAC0-§5: if doing more than is needed to comply with nonretrogression, not NT, so NOT compelling state interest (Miller v. Johnson)-remedying past discrimination is NOT a compelling interest (bc §2 covers this)

Relationship Shaw and UJO-Distinction-Both cases are claims brought by white people, in districts drawn by the state-Thinking about race when drawing the lines

Shift UJO-Shaw1. Stigma (how the court talks about race)

-UJO: state is not acting like Gomillion when protecting black voters (historical discrim)-Even if crazy shaped, plan would still probably have been upheld

-Shaw: This looks like Gomillion. Crosen has been decided-says race based classification is invidious-Bad to think of race: SS even if not invidious (there is no benign use of race)-Sends a bad message to have the state use race in this way. All who live in the dist are harmed

2. Burden: Different conception of claim and how the court understands the injury-UJO: Ps not harmed by being placed in separate districts as long as whites generally in county are not diluted

-Group right to not be diluted-Shaw: Note a group-based but INDIVIDUAL claim (reconceptualizing the injury)

-does not say anything about group dilution claim, so does NOT overturn UJO-UJO may have won in 1994 with an expressive harm. -BUT, still an injury here, even if there is no white vote dilution.

AFTER SHAW: Local authorities no longer have discretion in drawing the lines. It is really tricky for authorities to redistrict. States are now paralyzed, (1P1V; §5 no retrogression; §2 no effect of dilution; Shaw can’t take race into account too much).

(2.) How do we make this claim? Interview people?-----Miller v. Johnson (1995)Facts: Goes from 1-2 black districts, DOJ said that you need three, but it was possible to draw 5.Holding: SS is required when race is the predominant factor. Even if §5 is a compelling interest, states cannot claim that § 2 or 5 made them do it (NOT compelling interests).-If you do not have a crazy shape, you can still have a Shaw claim (although it is much harder to tell what is driving the drawing of the lines)

ADD MORE ON MILLERADD BUSH

C. EASLEY v. CROMARTIE (Re-defining Shaw)Easley v. Cromartie (2001) (Shaw III) (Say PARTY not RACE when redistricting…and you are fine!)Facts: After Shaw I, and the remand to the DC, the DC said that race predominated, there were no other reasons.-Breyer says that Shaw was about respecting the legislatures competence to draw lines (but it wasn’t)-Breyer applies clear error standard of review (this is not what he is supposed to be applying)-stringent stdHolding: There is not enough evidence to show that race predominated, but Ps must show that political goals could be met another way. The court goes through the minutae of findings to see if race predominated (Staffer email; testimony, Senator)-Not respecting traditional districting principles (respecting boundaries; incumbents; compactness) not enough to show that race predominated.Thomas Dissent: Since when do we review cases in this way? SC needs to defer to DC findings.

Where are the Shaw cases now?-Maybe because of the redefining of Shaw in Cromartie, the standard is too hard to meet at this time to show that race predominated.-No cases brought post-2000: Legislatures knew the rules when they were redistricting and this is part of the reason why explicit partisan gerrymandering was so egregious.-Focus of these claims now: is what the legislature intended,-Deference to legis especially where state has chosen a plan and race correlates with party-Cromartie tempers the discussion of race (good) but explicitly endorses party line drawing (bad)

D. SUBSTANTIVE v. DESCRIPTIVE REPRESENTATIONSubstantive v. Descriptive Representation

Descriptive Representation : Electing a person who looks like you Substantive Representation : Electing a legislative body that will support your interests Coalition District : Election reps of choice, but with less than 50% of the population Influence District : NOT electing a rep of choice, but the candidate who is elected will listen to you.

Substantive & Descriptive Representation: What type of representation is best?1. What are the advantages of each type of representation?

a. Descriptive representation: Can guarantee a smaller number of safe m-m districtsi. Guarantees minorities can elect reps that look like them

(i) Need minority faces at the table to force others to address issuesii. Fewer number of reps, reps may be isolated

(i) Bleaches the rest of the electorate(ii) Overall electorate more conservative and whiter, less responsive to minority concerns

b. Substantive representation: Creating of more coalition/influence districts i. Participation is not just about electing representatives of choice

(i) Participation is about having access to process/more opportunities to participateii. More influence districts will create more opportunities for influence

(i) But, potential that minority preferred candidates will loseiii. If VRA does not support this, it would prevent formation of cross-racial coalitions

Georgia v. Ashcroft (2003) (OVERTURNED by 2006 Amendments)Facts: Benchmark: 11 majority-minority districts (10 with black VAP)Dems control House, Senate and Gov in 2000. Dems want to unpack the Democratic districts to maintain control.

Georgia v. Ashcroft 03’: State can make a choice to create “safe” districts or to “unpack” these districts to create a greater number of influence districts (change should be pre-cleared) (overruled)Dems unpacking to save themselves

c. Moving from m-m districts to influence districts is not retrogressivei. Need to look at the plan as a wholeii. Each choice comes with risks/benefits, we trust the state to choose btwn two options

(i) We don’t really know if this plan will make things better or worse(ii) O’Connor: Should let the state of GA make that decision(iii) But, premise of VRA is that we don’t trust GA to make the right decision

iii. Look to influence and power that minority reps have within government

(i) Do the minority reps hold committee chairmanships, etc? iv. John Lewis and other AA reps supported this plan

d. Dissent/Souter: What happened to the ability to electi. Influence means opportunity to exercise power, not just the sentiment that politicians listen to

constituents(i) State should not be able to carry its burden by showing that candidates elected without minority

support take minority’s interest into accountii. How is the DOJ supposed to determine if minority voters will be better off?

2. Decision “overruled” by 2006 amendments reauth VRA a. Congress says focus should be on the minority group’s ability “to elect their preferred candidate of

choice”i. States cannot make it harder for minorities to “elect” reps of choice

Add Bartlett v. StricklandE. LULAC v. PerryKennedy’s Views on Voting (from LULAC) § 2 Claim

3. Kennedy is interested in protecting vibrant political communities, not interested in protecting some politician’s fiefdoma. District 23: Districting plan violates §2 b/c TX took away the votes from Latinos just as they were about

to use it to oust Bonillai. Kennedy sees a vibrant political community in 23; wants to preserve itii. Analyzes totality of the circumstances factors in an expansive wayiii. Gingles 2 & 3 met, not geographically compact (1) after the split. Kennedy looked at the way they

were before. b. District 24: AAs do not have a §2 claim b/c Frost was not their candidate of choice

i. There had never been a contested primary and Frost is whiteii. There is not a high quality of participation in this safe district

(i) The district is dead, this is the problem4. District 25 is not a §2 district b/c it is neither geographically nor culturally compact

a. Ps in District 25 were not entitled to a district b/c the two communities were far flung and had disparate interests (one was urban, one was rural)i. Roberts/Dissent: A district cannot lose on style points alone

F. Rice v. Cayetano

PARTISAN GERRYMANDERING

A. Recognition of ClaimGaffney & Karcher

1. Political considerations do not necessarily invalidate a reapportionment plan (Gaffney)a. Those who redistrict can work with census and political data; it would be impossible to extract politics

from this political processi. Judicial interest in districting at its lowest ebb when state tries to apportion power based on voting

strength

B. DAVIS v. BANDEMER, Davis v. Bandemer: Claims of partisan gerrymandering are justiciable as potential EPC violations

b. Unconstitutional discrimination occurs when system is arranged in a way that will consistently degrade a voter’s influence on political process as a wholei. Discriminatory intent: Intentional discrimination against a groupii. Discriminator effect: Continued frustration of the will of a majority of voters or evidence of effective

denial to a minority a fair chance to influence processc. O’Connor/Concurrence: Agrees in outcome, does not agree that partisan gerrymandering claims should

be justiciablei. Does not want to encourage third parties, health and preservation of our political system depends on

two parties(i) Allowing political parties to draw lines is key part of preserving two party system

ii. This process is self-correcting(i) To maximize the number of seats a party controls the party will spread the vote a little too thin

and will end up losing some seats

Badham v. Eu

ADDC. Lack of Manageable Standards

1. Bandemer opened the door to claims, but did not provide standards as to what constituted unconstitutional partisan gerrymandering a. Hard for Ps to show that they have been shut out of the process completely

Vieth v. Jubelirer, page 843, Scalia, 2004: There is still no consensus on what test should be used to evaluate these claims

b. Scalia: Would overrule Bandemer and declare political gerrymandering claims to be non-justiciable b/c there are no judicially manageable standardsi. Bandemer is an invitation to litigation without hopes of redressii. Standards have not developed in 18 years

c. Kennedy: Would dismiss Ps claim, but would not foreclose all possibility of reliefi. Just b/c no appropriate standard has emerged yet does not mean that one will not emerge in the futureii. Does not offer a standard of his own

d. Dissenters: Engage in creative writing; each comes up with a different standard

LARIOS v. Cox NOTE, page 875,

D. ENDLESS REDISTRICTING AND BIPARTISAN GERRYMANDERING 880-8891. Stevens in Karcher: An obvious gerrymander cannot be immune from attack simply b/c it complies with

1p/1v. Court should consider: a. If plan has significant adverse impact on identifiable political group

i. Does group belong to political class with identifiable geographic distribution? ii. Is there voting influence adversely affected by the scheme?

b. Whether plan has objective indicia of irregularity (is it a gerrymander)

c. Whether the state is able to produce evidence that the plan serves the neutral, legitimate interests of the community as a whole

d. 1p/1v is another tool to attack partisan gerrymandering2. LULAC – only as much as it dilutes a racial minority group’s vote

a. But is this a good idea using VRA to knock out partisan gerrymandering, prob not making VRA poltical tooli. But may recognize that is not something that needs to be overcome, but can contribute to

communities of value. (Katz)

THE CLUSTERFUCK THAT IS BUSH v. GORE

BUSH V. GORE, 2000, PER CURIAM, 1064A. Per Curiam

1. The manual recount ordered by FL SC violates EPC b/c there are not uniform standards for each countya. Individual citizens have no right to vote for President, but when state vests the right to vote in the people

the right becomes fundamental and EP appliesb. Recount implemented by FL SC does not satisfy requirement for non-arbitrary treatment of voters

i. Absence of standards to determine voter intent will lead to unequal evaluation of ballots across counties(i) FL SC could not have given clearer standards without violating Article II

ii. EPC does not apply to voting machines; it is a different order of disparity when determining voter intent manually

2. Required remedy is to halt the recounta. Obvious that the recount cannot be completed in compliance with EPC before the deadline imposed by 3

U.S.C. §5i. FL SC has said that FL legislature intended to take advantage of “safe harbor"ii. The only reason the recount can’t be completed by this date is b/c the SC had stayed the recount

B. Article II (Rehnquist, Thomas and Scalia)1. Normally SC defers to decisions of state court, but here the Constitution conferred power on the state

legislaturea. Article II.1.2 provides that each state shall appoint electorsb. 3 U.S.C. §5 provides that the state selection of electors shall be conclusive if electors are chosen under

laws enacted prior to election day and if the process is completed six days prior to the meeting of the Electoral College

2. FL SC’s reading of FL election law distorts them beyond fair reading and thus violates Article IIa. Must ensure that state court does not frustrate legislative intent to attain the safe harbor of 3 U.S.C. §5

C. Dissenters: No EPC Violation (Stevens & Ginsburg)1. Ginsburg: SCOTUS should respect state SC

a. FL SC is unlike state SCs during the Jim Crowe erab. FL SC has authority under FL Con to determine what the law of FL is

2. Stevens: Concerns about differing standards alleviating b/c there is one magistrate overseeing recountD. Dissenters: EPC Violation, Disagree with Remedy

1. Breyer: This is a political question, the court should never have taken this casea. The Court’s action will undermine public trust in the Court, that trust is a public treasure

i. This self-inflicted would will harm the court and the nation

CAMPAIGN FINANCEX. Campaign Finance

A. Background & History……………………………………………. 326-338B. A Decade of Developments

McConnell v. FEC ……………………………………….. 403-424Randall v. Sorrell…………………………………………... 425-436

Supp. 74-75FEC v. Wisconsin Right to Life (WRTL II) ……………. 1295-1306Citizens United ………………………………………….. Supp. 75-97Davis v. FEC …………………………………………… Supp. 98-100Arizona Free Enterprise Club’s Freedom Club PAC . . . . …… Supp. 100-115Caperton…………………………………………………. Supp. 115-123

Campaign FinanceHistory-In 1974, FECA was amended. This put limits on contribution and expenditures, provided public funding for federal elections, created the FEC (Where 2/3 of the appointed board members must agree on something to move forward on any proposed regulatory undertaking.)-in 1976, Buckley v. Valeo was decided and made the First Amendment distinction, and struck down parts of FECA

-Expenditures: Amount of money a person or group can spend on political communication during a campaign, necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money (Core political speech with expenditures).-Contributions: Amount of money any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication.

-This does not implicate the 1st A, because people can contribute in other waysRSNS this limitation is legitimate: Limtes the actuality and appearance of corruptionConcern over Quid pro Quo: $ being exchanged for a certain representatives vote. This is improper

-However, this is difficult to prove that this exchange occurred.

-Buckley strikes down expenditure limits in FECA (no quid pro quo concerns)-the only concern under Buckley is equalization…are some candidates voices getting too loud?-Because of Buckley we have no idea what FECA could have looked like. Because of Buckley, independent expenditures are increased.

-Under federal law: you can give an unlimited amount of independent expenditures-past the contribution limits.

After Buckley-Nixon (2000): Uphold Buckeley and upholds states limits on state contribution’s to state candidates.

-Stevens: always saying that $ is property, and not speech-Breyer: Decreasing the size of the contribution will equalize the playing field-Thomas/Scalia: Suppressing contributions is suppressing speech, so it should be subject to SS-K:

-FEC: Also affirms expenditures limits (Soft $ comes in)-F: R party brought an attack ad before a R candidate was even in the running. The question was what this counted as? The Court held that the R party was spending $ as an independent expenditure, and the party could spend $ as long as not aligned with the candidate.