voting rights outline one

7/30/2019 Voting Rights Outline One

1/89

Assignments posted weekly

Don't hold her to it

Things will be added

Syllabus

Ctools

Teirs of scrutiny

Equal protection clause

Remember con law

Statutory law course

Come to class

Send e-mail if you're not going to be here.

You will be called onCome in with assumption you're going to participate

Requirements

Those people are official note takers

Posted on ctools

When assignments are posted- two names will be posted

Starting next week, no brining laptops

Typical

Final exam

Logistics

IntroMonday, September 03, 2012

4:04 PM

Outline 1 Page 1


2/89

Tuesday, Sept. 4, pp. 16-30

Wednesday, Sept. 5, pp. 30-36, 41-54

Thursday, Sept. 6, pp. 54-68, 114-119

Pasted from

Apportionment provision

14th ammendment - Section 2

Direct election of senators

b/c of reps jerrymandering, stae legislators now pick reps

Today we've flipped the f ramers contention

Note:

17th ammendment

No denying ranchise based on race15th-- ammendment

-Republican form of government

Women can vote

19th ammendment

No poll tax

24th amendment

18 year olds can vote

Note that congress tried to change this but court overturned

26th

Dc voters kinda get to vote

23rd ammendment

Preisdent/ vice-preisdential election

12th ammendment

If can vote for state house of reps can vote for congress (four)

But congress, may at any time, alter such regulation

(two) time pl ace and manner of hodling elections shall be prescribed by the

state legisl ators (federal elections)

Article one section two and four

Framers had no intention of this provision doing this work

Equal Protection Clause

Mostly we deal with section one of 14th ammendment

These provisions will harldy be touched on

Get rid of privi leiges and Immunities today

Note:

Note: cosntiution doesn't give you the right to vote

Constitution

Word "male" introduced into constiution for the first time

But if you don't let 21 year old men vote, unless invovled in

rebell ion or crime, approtionement reduced by direct number of

disenfranchsied peoples

But then if not allowed to vote- they'd get more

reprsentetation (the white soutehrn democrats)

3million more sourtherners b/c of enfranchsiemnt

You let the 4 mil lion male slave population vote

But if you don't let them vote (and we know you're not going

to)

So section 2:

Apportion seats in congress based on number of people

14th ammendemtn

Why were suff ragist disspoitned by 14th

Minor v. Happersett (1874, Waite)- not all citizens have right to vote - voting not a privi lege

or immunity of citizenship; not required by a republi can form of goernemnt

Constitutional Text

Ch. 2: The Right to Participate

Right to ParticipateMonday, August 20, 2012

2:41 PM

Outline 1 Page 2
https://ctools.umich.edu/portal/tool/8b0b18e0-17f6-42f8-be36-938b21aef456?panel=Mainhttps://ctools.umich.edu/portal/tool/8b0b18e0-17f6-42f8-be36-938b21aef456?panel=Main


3/89

Male inhabitants

21 years old

Citizens of the united states

So if you deny people

You lose seats in congress

So you can disenfranchise women all you want

Or at least penalty only kicks in if disenfranchsing women

Women's suffragist movemnet

So wanted to be clear only talki ng about men.

happenign then

Why male inhabitants

Repeals 3/5th clasue

Women don't need to vote - women adequately represented by husbands

and fathers -

Women lack the capacity - no freedome of will, like insane people

Idea behind law:

Woman-citizen of missouri, is she a voter in that state, nowithstanding provision of

the constiution and laws of the state whi ch confine right to vote to men alone.

And if you can't vote, who are they going to listen to.

But legislature all men

Go to Legislature and get them to change law

Pursue a Consti tuional Ammendment

Privile ges and Immunity of Citizenship

Says 14th ammendment offers thisSue on Constituional Grounds

Pass a law under enformcent powers of 14th giving women the right

to vote

Section 5 of the 14th

Went this first b/c of abolitionist experience finding courts not

sympathetic

Some suffragist did this, but unsuccessful

Katz: one thing she could have done- could have gone to congress

Options for Virginia Minor if she wants to vote

Minor goes in to register, denied

Then she gets husband to co-sign on law suit

Law makes it a penalty to vote if not entitled to

Susan b anthony did vote then charged under Ku Klux Klan law

Gutted privile ges and Immunities clause

Right to slaughter not a privilege

Right to economic freedom, pursuing vocation not

a privilege and immunity of citizenship

Something about 'the slave race' and the

war, not econoimic freedom

Privileges and immunities are _________ who

knows

Upheld because: did not deny anyone any priv ilgegs and

immunity of citizen

Navigable water

Interstate travel

Habeaus corpus

Privileges and Immunity of citizenship

Dealt with whether governemtn could create a monopoly on

slaughter houses

Slaughter house cases

Bravel wants to sit fo rthe bar in Ill inois, not allowed b/c law

saying women can't be attorney's

Repuganant

Unfit for civil life

Justice Bradley (dissenter from slaughter house): Mira

can't be an attorney, women can't do this

Court: see slaughte rhosue, privileges and immunities not this

broad category of pursuing vocation

Bradwell v. Illionois

Between Susan B Anthony's arrest and this decision:

Note:

F:

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4/89

So P and I cabined to very narrow class of cases

Voting bar denies the a privilege and immunity of citizenship, the

right ot vote

Thus state law unconstiutional

Minor's theory:

Yes!

Just

Common/natural law (idea of political community) makes them citizen,

consotuion didn't do it

Is Virgina Minor a Citizen

If right of women to vote is a privi lege and immunity, they would have

been doing it

But lots of citizens weren't able to vote in 1789

No new rights created by 14th, additional layer of protection to

rights that already existed

At the founding, only NJ le t owmen votes (they took it away)

The originalist claim

And never any problems under republican form of govenrment or

anything else

Kept admitting new states, that had disenfranchsied lots of people

15th can't deny right of vote based on race

If Minor is right, all citizens have right to vote, why ratify

15th?

Adoption of the 15th ammendment

Structural argument

Penalty only for disencranchsing men

If a privi lege and immunity incldued right to vote, why does

the cosntituion impsoe this penalty only for the

disenfranchsiement of men

But penalty (lesser paporitonemnt)

So you can do it, just penalty

State legislature has power to disenfranchise even men

So if you can disenfranchsie men, then franchisemnt isn't a p

and I

14th amendment section 2

So right to vote is not a P & I

i

This provision says e xplicilty that states can disenfranchise citizens

Textual argument

Citizenship not a condition to voting in some states

Foreigners

Talk to missouri

Institutional capacity argument

Is the right to vote a privilege and immunity of citizens of the US?

His wife was a suff ragist

Leaves out women lack capacity to vote argument

You'd win this one easy

See Slaughter House

But back then Equal Protection is just about race/slavery/civil war

No Equal Protection Argument

Note: what arguments are missing here; what should Virginia's Minors

Guys who wrote the 14th ammendment were right fuckign there,and they weren't thinking what viriginai minor was thinking

You were defining something that has evolved

Married women could own property in own name

Lots of things like this

Rights of women have evolved since founding

Women stand ready ow to accept privil ieges and

immunities not avialble at founding

Minor: P and I captures these evolving things

Framers used concepts broad enough to bring in other

ideas over time

Don't care what you were thinki ng when you said 'Privileges

and Immunities'

Evolution

Did Virginia Minor not know that women weren't allowed to vote?

Note: one more word about originalist claim

Waite's reasosn why Minor Loses

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5/89

Notes and Questions

Cali passes law sayign former fe lons can't vote

F:

Reduction in apportinment didn't kick in i f disenfranchised people participating

in 'other crimes'

Section 1 can't possibl y provide for what section 2 says isn't a problem

"other crimes"

Harper, Lassiter

But here-text on his side, 'other crimes

Katz: there's a lot of history that has happens

Section 2 of the 14th

This was happening at time of framing',

Orgiingalist argument

If states were prohbited from disenfrancshing former felosn, why isn't

their delegation size being penalized

"particiaption in other crimes' = no decrease in disporotionment

Why does the constitutional challenge fail

Section two is about something else - rebellion, civil war

Rehnquist repsonse: 'that's the revellion part' no evidence 'other crimes' relted

to that sort of stuff

Argument should have been made:

Strict scrutiny

Katz: if no section 2, how would this have bee n examined

One person one vote doctrine

Reads disporpotionate voting denying equal protection

Baker vs. Carr 1962

Get voting as fundemental right

KATZ: what changes with EPC

That section wan't meant to limit the evolution of Equal Protection Clause

But now that we've been finding these rights (this right finding project),

Section 2 is about one problem at one specifi c time

Marshall's dissent

This continues to be the law on felon disenfranchsiment

Only goes with the Text here

Note: Rehnquist doesn't' make an originalist claim, or a structural claim

Richardson v. Ramirez (1974 Rehnquist)- convicted felons disenfranchised, uses section 2

(14th amendment- "other crimes", textual argument)

Europe - people think its crazy people currently in prision can't vote

4.6% of popul ation

5.85 million di senfrachised for former covnictions

4x greater rate than non-african americans

1 in every 13 african americans of voting age are di senfrachsied

In kentucky, flroirda, one other- 1 in 5 african americans disenfrachised as

ex-felons

Varies signifcantly by state

American exceptionalism

Katz: isvoting to change drug policy a corrupt vote

Vote for someone who is l ikely to be lax on criminals or some shit

Corruption

Civil contract theory

Community values being shared

Protect republicans

Race discrimination?

Why do we do this

Felony disenfranchisement

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6/89

Does Rehnquist change his mind?

Blatant discriminatory intent-> not okay

Holding:

Sought to disenfranchise as many black people as possible

Cam up with crimes more likely to be committed by black folk

Alabama adopted constitution in 1901

F:

Katz: this is why its hard to show discrimiantory intent now, because these

examples were so egregious

Discriminatory intent "we're here to entrench white supremacy"

Hunter v. Underwood (1985 Rehnquist) - discriminatory inent in disenfranchisning

individuals of "any crime involving moral turpitude" - records show intended to

disenfranchise blacks

Pushing back agaisnt active participation by black people and white people

agreeing with them

Prior, the white voting block didn't exist, corss-racial coaltiions helped

This was an effort by the democratic party to unify white people

These conventions help create the one party south

Katz: why did this disnfrachisment happen in the south

Not california, here, alabama

If you are people just thinking about excluding people from social

contract, etc, that's okay (see Richardson)

But Alabama could renact it the nex t day, just not say anything

But if you say "entrenching white supremacy" -> unanimous court

Difference:

Hunter compared to Richardson

Needs to be congruent and proportional to the unconstiutional

conduct (for section 5 and se ction 2)

Where is the cosntiutional violation?

Need to find a practice on its face is constiutional but is

getting close

Problem: felon disenfranchsiment isn't unconsitutional

City of Berme vs. Flores

And constiouion could get at those biases by prhobitiing felon

disenfranchsiment

Katz: this argument still hasn't gone anywhere

Most powerful constiutional violation: Criminal justice system filled with

uncosnitouoanl racial basias

Argument they can't do this:

Congress can make

But note, could pass this law just for federal elections

Katz: could Congress pass aa law prohibi ting fe lon disenfrachinsement (pursuant to

section 5 of the 14th or section 2of the 15th

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

Notes and Questions (pg 30)

Upholds literacy test

Strikes down poll tax

Katz: what's up with Douglas

She'll talk about more soon

Note: Katz: this isn't the constoiuional framework today

Lassiter refused to take literacy test, de nied registration

Test not facially discriminatory

F:

Equal protection claim

17th direct ele ction claim

Is this consistent with 14th and 17th

Argument

Lassiter v. Northhampton County Board of Elections (Douglas 1959)

The Rise of Strict Scrutiny for Restrictions on Citizens' Eligibility to Vote

The Constituional Framework

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7/89

"some relation to intelligent use o fballot"

Informed voters

States have borad power to regulate elections

Legitimate state in terest

Literacy tied to voting

Goal must be rationally related to legitimate state interest

Not looking for a close fit

Rational Basis test

No, Cognress does ban literacy test in voting rights act

Katz: does this mean congress can't ban the literacy test

Davis v. Schness - > great discretion made clear device to make racial

discrimiatnion easy

Why not?

But no such allegations here.

Why isn't this a race case?

Connection with li teracy test to intell igent use of the vote not here

Katz: I don't buy that

Distingusihed form Lassiter

Strict scrutiny for suspect classifcaitons

Strict scrutiny for infirinign on fundamental rights

Note: 2 strands to equal prtoection clause

Rigorous exacting scrutiny

Voting is a fundamental right in a free and democratic society

Note: said in later cases didn't care about poor people; this

isn't the law anymore

But here they're considering it

Lines drawn on the basis of wealth, like race, creed, or color, is not

germane to one's ability to particpate intel ligently in the lecotrate

process

i.e. maybe be ing poor is corresponding with race

Suspect classifcaiton

Fundamental right

So both lines of equal proteciton strict scrutiny

Poll taxes effect poor people

Like Du Process, Equal Protection Clause is not shcakled ot the

political theory of aparticual era

Unlike Slaughterhosue - about slaves and civil war

Douglas is saying that the EPC not li mited to racial categories, other

cateogires as well

That's what holmes was saying

So this is weird to say virignia can't choose anoth cateogry

But: point of that is saying that legislatorues get to do what they

want

Lochner (Holmes dissent)

What changes for Douglas:

Long have wealth based determiantions

Originalism

That poor people should get to vote

This is enshrining a particular poltical theory

Rational basis review

Make sure they care enough

Raise funds

Justificatiosn for poll tax

Black Dissent

Harlan dissent

Harper v. Virginia State Board of Elections (Douglas 1966)

Avoid the requiremtn of intetnional discriminatory intent

Broader holding

Given tension be tween these two cases, why doesn't go with race?

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8/89

Level of scrutiny moves

Doesn't think literacy tax differnet than poll tax- all race cases

Court is coming up with a difference conception of political participation

Katz:

Transformation in what Douglas and the court think about political

participation

Looking for a good outcome

States can shape electorate to get good outcomes

Instrumental view of the right to vote

Lassiter

Voting about constituting se lf, buidling idnetiy

Outcome independent

Objective i s not good policy, but rather inclusion

Pluralistic view of political participation

So Douglas doesn't' go with race to get to this new view of pol itical

particpiation

Harper

Shaped by the sixties!

Why does standard of review change?

Why do these cases come out differently

Really lives there

Bonafide resident

Of age (31)

Nonfelon

i.e. a member of the core electorate

Kramer lives at home while commuting into the city as a stockbroker

New York section 2012 (state law) - otherwise el igible voters inelligle to

vote for school board elections if 1) no kids in school, or 2) no taxable

property owned or leased

F:

Kramer: Restriction violates the 14th ammendment (e qual protection clause)

Kramer v. Union Free School District No. 15 (Warren 1969)

Reynolds - the right to exercise the franchise in a free and unimapired

manner is preserative of other basic civil and politcal rights, any allged

infringement of the right of citi zens to vote must be carefully and

meticulously scrutinized

Property tax payers

Parents of students

Want to restrict vote in school board ele ctiosn to those most

interested

"classification must be necessary"

Court: no ruling if this i s compelling b/c clearly not narrowly tailored

enough

Compelling interest

Senior citizens, othes livign with children, clergy, military

perosnal, boarders and lodgers, parents with children

No - also disenfranchises:

Classficatiosn permit icnlusion of many people with remote and

indirect interst, and exlcudes those who have distinct and direct

interest in the school meeting decisions

Karmer is interested because he's interested

Our unemployed person renting is

Bona fide resident

Of age

Nonfelon

Key here: Kramer is in core electorate but excluded

Katz:

Narrowly tailored

Strict Scrutiny emerges full scale

Katz: unclear exactly what Kramer's interest is, but Warren thinks this is

important here (Katz seems to indicate not important otherwhere)

Statute struck down because it di senfracnhsied Kreamer as a member of the

core elctorate with an interest in the otucome

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9/89

Notion you can exclude membe rs of school electorate from schools

doesn't fly

But maybe for utilities

Will revisit this problem

Based on assumption state gov't representas all people

But in voting cases that assumption is what is challenged

Assume represenative instiutions acceptable = rational basis

So still replace the presumption of constijonality

Warren: this doesn't mean we don't still suspect this

Stewart: c'mon dawg- > he was represented in the body that madethis

Note: the state body that Kramer could vote for is what passed this

Literacy

Lassiter- > legislature can shape the electorate to be what it wants

Here: Kramer has very tangential interest, but that interest is great

enough that the state can't shape the e lectorate for school board

elections as it sees fit

"once the franchsie is gratned to the electorate, line s may not

be drawn which are inconsistent with the Equal Protection

Calsue of the 14th" -Harper v. Virginia Board of Elections

Diffence - this is traditoinal governemtn interest

But see Ball

Note: New York State doesn't have to have school board elecitons

at all

Katz: look how far we are from Lassiter

Framework

Stewart dissent

If you look at these, they don't clearly survive strict scrutiny

Just because you live soewhere, do you have the requisitie interest, that

other people don't clearly have

Bona Fide Residency

Citizenship

Katz: Core Electorate Components

People who don't live there

Is not

Katz: Politicak community

Harman v. Forsenius (1965)

Oregon v. Mitchell (1970)

Breedlove v. Sutles (1937)- overturned by Harper

Compelling interest to create community

Thus survivies close scrutiny

An approprirately defiend and uniform requirement of bona fide resident

necessary to perseve the basic conception of poli tical community

What it is not

Katz: What is a polticial community, what does the court understand

Need to be in state for 3 years and county for 3 months

f:

Preventing voting fraud through coloniztion and inability to

identi fyign persons offering to vote

Making sure that a voter has "in fact, become a member of

the community and that as such, he has a common interest in

all tmatters pertaining to its governemtn and is, therefore,

more likley to exercise his right more inte lligently

Better ways to prevent fraud than this (i.e. good interest, not

narrow)

Court rejects premises of second interest:Exercising voting

rights intel ligently, member of community (i.e. this is not a

compelling interest)

Court:

Interst

Dunn v. Blumsetin (1972)- overturned durational residence requirment

Notes and questions (pg 54)

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10/89

Allsui ve, subejct ot abuse

More natioanl outlook, or retaining vie wpoint of origin,

hta's okay

basically

Remove members of armed forces movign to texas from voting

f:

Bona fide residents

Worried about block votingWorried military people will have different points of view

Yes, bona fide residents is compelling interest

Problem: i rrebutable presumption: can't make categorical

bars voting

Think differently not a compelling interest-this is what the

court is protecting from

Court:

Interest:

Carrington v. Rash(1965)- categoraical bar on serviceman = not bona fide

residencts

Brown v. Chattanooga Board of Comissioners (ED Tenn 1989)

People of Holt live outside corproate limits of Tuscaloosa

Subject to police and sanitary reuglation

But not vote in Tuscaloosa

But within 3 mile band of police jurisdiction

F:

P: EPC violated by no vote despite subjection to munipal powers

Police and shit

Garbage and what not

Probabably water too

Katz: here, p's have clearer interest and effect

Kramer versus Plaintiffs here:

Court: does not violate EPC

Line marked by Court's voting qualifcatiosn decisions coincides with the

geogrpahic boundary of the governmental unit at issue

Governemtn may legiimately restric right to vote of governemtn

units to those within i ts boundaries

Rational basis test: ("stripped of voting rights attire")

Can't give them all a right to vote

Have to draw lines somewhere

People otuside geography always effected by municipal policies

Here: direct regualtory authority, and that should be the

geographical line

Direct exercise of regualtory authority

They're regulating you, you get a say

If vote is about exercise of instrumental power

Decision to live in Chevy Chase versus DC has

ramifications

About meaning instead of power

Shared understanding to common good

less about outcome and more about community,

opportunities for civic dialogue

It's a matter of choice: can't remain aloof from

processes, and claim status of enfranchised

Katz: it matters who lives i n Holt and who l ives outside

the city limits

So not about right to vote, no claim to right to vote,

because not part of the community

But Rehnquist's conception of what voting is

Katz: this is irrefutable if you operate with a particualr conception of

what the right to vote is about

Brennan dissent:

Go to the state where you are fully represented

Stewart's concurrence

Holt Civic Club v. City of Tuscaloosa (1978)

United States v. Alabama (M D Ala 1961) Aff'd US 1962

The Struggle for Black Enfranchisement

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11/89

Initial black populaiton 4:1 white

After WWII african american residents are tryign to register

Tuskegee

White people pissed about 400 votes for black owman

Realize difficulty administering literacy test because everyone

here is all educated from tuskegee insitute

Loses 600:400

1954: Jess Guzman ran for scchool board

African Americans organize boycott

1957: Alabama legislature redraws boudanries of tuskegee - > removes all

but 5 African American residents, but no white residents

Charles Gamillion files suit seeking delcaration its uncosnituioanl ->

vioatlion of 14th and 15th

F:

Tremendous discretion for states to draw lines however they feel

State never offers reason for this

Can't Deprive them of pre-e xisting right to vote

i.e. see one person one vote

Katz: shouldn't matter

Vast number of people

Evil effect / race

Katz: ansswer should be no regarding shpae thing;

Strange shape

Factors

And when excluded no right to view

States can create political communities in all sorts of ways

Voting in community is a constiutuetive process not

insturmental process

States have discretion to draw lines, gets rational basis review

State has endess discretionto create communities

Except cannot form communities base d on race

But Gomillion distingusihed from Holt

Can't do that along racial lines

Race is not a permissible basis upon whi ch to define a poltical

community

Racial classifcation doesn't just heigten review, trasnsforms into

elevation of process-they're not just making administratie decision

that says this is the kind of poli tcal community we want

But Katz says this sisn't really what frankfurter was saying, he

wanted to dissent in Baker v. Carr.

Katz: thinks 15th ammendment in play

Court: Unanimous

State of ill inois draws congessional plan

Then does nothing for 50 years

So some areas get much less representation per person then

others

Populations explode in certain districts

f:

14th ammendment claim, republican form of govenremtn?

Whatever wrong is suffered by the people of ill inois, they should fix

it or congress can fix i t

Court: can't touch this; this is a political question, lines, what ahppens if

we declare i t unconsituional, illinois has no districts, we can't draw these

lines

Judges have no way to decide where the boudnaries of cities,

electoral diste ricts outhg tto be

Lines are beyond judicial competence

Katz: later, courts get into this business, but in Gomillion - Alabama

thought they'd nail this

Colegrove v. Green

Colegrove voters complaining about dillution rather than

disenfranchisement

This is a city he was a risdent in before

Gomillion can pass a ballot, but not in Tuskegee

Colegrove versus : Gomillion

Gomillion v. Lightfoot (Frankfurter 1960)

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12/89

Colegrove: lines are untouchable

Dillution versus disenfrachisment

Action versus inaction

Two years after Colegrove

Colegrove not clearly about race

Frankfurter does not idenitfy 14th amendment problem

Discrimination based on racedenying right to vote

Gomillion about 15th amendment

Was Gomillion key in overtunring colegrove

Katz: wants to limit this to 15th so he can stick withColegrove and say

courts can't draw up districts, except in race-voting cases

Note: Colegrove overturned by Baker v. Carr

No one has right to vote in jurisdiction they don't live in

But state of alabama can't do this because they're engaging in racial

segregration (see Brown vs. Borad of Ed and Cooper v. Aaron.

14th instead of 15th

Whitaker, concurring

Tuesday voting just doesnt seem like a

constitutional issue the way a poll tax does

Compare poll tax vs. Tuesday voting

Katz: Kennedy is saying this fails any level of review, butactually raising the level

o

When the elections looks like its doing

something like fixing thesystem/entrenchment/anti-competitivemaybe that demands more scrutiny

Takeaway: some circumstances invite skepticism (i.e. one-party system)

o

Kennedy dissent: says not applying strict scrutiny but clearlygiving the prohibition on write-ins a hard look

Pasted from

Kennedy Dissent

Burdick v. Takushi (White 1992)

F:

Election Modernization

Voter Fraud

Safeguarding Voter Confidence

Argument

Lifes vagaries happenso

Not worried about these people whousually have ID

o

Those with ID or who could/should have ID (likepeople who just leave it at home)

Theres a different/special burden on themo

Other group: elderly people born out of state, thepoor, the homeless, religious (but really thereligious are a whole different thing)

2 classes of people

Small number of voters who are speciallyburdened vs. states board interests

P. 84: perform a unique balancing analysis

Stevenso

6-10% of Americans without ID

Gives numbers p. 89

Souter concurrenceo

Burdens

Crawford V. Marion County Election Bd (Stevens 2008)

The Articulation of a Sliding Scale for Other Restrictions on a Citizen's Vote

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13/89

43,000

Souter has number of people without ID but stilldont know whether they can get one or whethertheyll actually be unable to vote because of the

law

Katz: Him and Stevens are talking past each other

A facial challenge must fail where it has a legitimate reach formost people

o

Burden is unclear and record doesnt tell us how many

Poor/homeless/elderly who cant vote because

dont have ID and cant get one

Q: What fact is Stevens missing? What does he need?

NEEDS somebody alleging a personal inability to voteQ: Is Stevens right? Would a better record have madethe case come out a different way?

Q: Why does Stevens find the evidence lacking as to that group of

people?

o

It was a FACIAL attack she wants it off thebooks for everybody and she wins

Did Harper have $1.50? Was she able to get thatmoney? Was the poll tax struck down only for thosepeople who could not get that amount of money nomatter what?

Stevens: There are a lot of people affected andfor most of them I dont care (people who haveID/can have ID); and I dont have enough

evidence about the other small group; and evenso, I dont care about them because this is

generally applied and for the most part not aproblem so go find an as-applied challenge

Stevens is dis-aggregating voters and this is different

Harper was a facial challenge: even if you have $100and willing to pay, still unconstitutional as applied toeverybody

For most of us its not a problem to have ID; only a

small group of people affected

(Harper is not a race case case)

Compare to Harper (poll tax)o

Katz: analytically this is immensely different fromStevens

Scalia thinks this is constitutional as applied toanybody

Scalia: we never talked about these cases in an as-applied way; its always been about the collectiveburden

Scalia: when you talk do balancing, its not about the individualcase-by-case analysis its aboutcollective burden

o

Scalia: burdens are trivialSouter: there is a burden on everybodyBoth are looking at the collective burden

Compare Souter and Scaliao

Disaggregates different burdensUnless I can say all of you are burdened, you all lose

Compare to Stevens hes doing something elseo

Role of facial vs. as-applied

Katz: I think the as-applied challenge is completelyfictitious

Katz: once you find so meone who doesnt have ID and start

talking to them and helping them, chances are they can get an IDo

Q: Did the lawyers screw up? Who should the plaintiff be? What wouldStevens do in the as-applied case?

Katz: State shouldnt be in the business of making it

harder for certain people to vote or at least not for

Katz: Stevens opinion says its OK to make voting harder for a

discrete class of people; thats fine as long as no personalinability to vote

o

Issue: making voting harder for a discrete class of people

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these weak reasons

So now were requiring legal literacy and

diligence

You have to know how to work within thebureaucracy and legal system

(So maybe the distinction with Harper could be themoney to state component of a poll tax and that wouldbe sad)

Katz: getting ID isnt just about the money, its aboutlegalliteracy

o

Leaves open question are we disaggregatingvoters? How do you do burden balancing now?

Steven says its OK to require diligence and hoop-jumping

Katz: Scalia is right that this is a very weirdjurisprudence to sustain

Katz: as-applied challenge is very narrow

Bottom line: As-applied constitutional challenge isntcapturing the problem

Katz: The group of people who wont vote because of this law isbigger than those who would be unable to get ID/voteo

Pasted from

Scalia ConcurrenceSouter Dissent

Breyer Dissent

Purcell v. Gonzalez (2006)

Notes and Questions

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16/89

Black Dissenting

Notes and Questions

Clark Concurring

Stewart Concurring

Lawyers know that they have to reassure the Court that the remedy is

something more discrete than desegregation/integration

o

Looming over Baker is school desegregation and experience of courts in thatarena (Brown v. Board)

Katz: This is the case that Warren says is the most important of his tenure

Malapportioned: lots of people in one district get onerepresentation and few people in another district also get onerepresentative

No redress at state level entrenchment

TN hasnt reapportioned since 1901 despite massive population shiftso

Facts

District Court: no relief can be granted

P. 134: facts/checklist of political questiono

About states vs. federal courts, not co-equal branches

No embarrassment aboard

No policy commitment for which there are no manageablestandards

Not a separation of powers issues

Why does Brennan say malapportionment is NOT a political question?o

Political Question

One argument that this is a guaranty clause case and thats not justiciable

(Luther)o

We have workable standards

EPC which weve been litigating for a long time

Court response: we dont have to go thereo

Guaranty Clause:

Katz: Is this the right outcome?o

Not articulating a remedy yet; were just open to talk about this problemo

We are open for business

Katz: No, there are reasons to keep it this way; stabilityoClark concurrence: this is irrational

Sees 1person/1vote but thats just an idea so debasementargument is circular because theres no set value to a vote

Geography vs. population and EPC doesnt mandate one over the

other

Frankfurter: we dont know what vote should be wortho

Claim: Nobody has been denied the right to vote the claim is dilution of yourvote

Pasted from

Understand that these lines of cases are revolutionary

Idea first articulated in Reynolds

The one person one vote conept seems obvious to us, but it was a big deal

Frankfurter is clearly right about all of this, Katz will asks us to defend what the Court

does in Baker and Reynolds and the cases since

Frankfurter Dissenting

Baker v. Carr (Brennan 1962)

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But the idea is hanging over Baker

This was a 15th case and not a 14th

But no one was denied any right to vote, just dilution

Judges aren't political theorist, no ability to choose amongst them

This was about how much each vote should count, but that's political theory

Equal Protection Clause doesn't empower judges to choose one sort of political

theory

Echos Withaker dissent in Gomill ion - Circularity Argument

State can chose how to do itConstitution doesn't bar this type apportionment

Someone had to do it - because the legislatures benefited from entrenchment b/c of

this apportionment scheme

To effectuate the mandate of equality everyone agrees lives int eh Equal

Protection Clause - need to intervene on apportionment

Because no equality if this is what our democracy looks l ike

Equal Protection Clause-

Arguments raised against Frankfurter (in Class):

Even though the framers of the 14th clearly didn't think it was about thisat all

So We're using it now

This is the first movement that leads to Harper and Kramer

Would it be strange fro the court to say the Constitution mandates

Proportional Representation

Would that be any analytical difference with what the court does in

Reynolds with one-person, one-vote

Criminal procedure

Apportionment

Job application to justice department said he was inspired to

go to law school b/c of overreaches of warren court in

One-Person, One-Vote concept more important than

abortion

Biden: Judge Alito's observation on the reapportionment

cases increases odds of a fi libuster

Remember Justice Altio's confirmation

Katz: Hypo - what if Brennan thought minorities needed to be protected

via Proportional Representation

Compromise embedded in constitution

Political History and compromise

Why is the Federal Senate okay

Probably thinks now that it's done shouldn't be changedKatz doesn't think he really wants to overturn one-person, one-vote

You're the sort of person who thinks this move was ill advised

So on similar issues, I'll be cutting the other way

Katz thinks part of the outrage against Ali to, isthat its one thing to

say that the apportionment cases are a tough sell as a matter of

constitutional interpretation, it's another thing to say you wanted to

be a lawyer because of this move

Should Alito have been given more slack?

And yet entrenchment

Problem: can't figure out what rule should apply here

Gerrymandering not unconstitutional- even though carving up district so

you'll continue to be reelected

Saying EPC mandates better apportionment

EPC does some work - we make stuff up under it

Courts Arguments addressing Frankfurter

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Also legacy of this being Judicial Activism

Then they keep going on that

Looked into the EPC and found voting

Overview: if you're not aggravated about this case, at least understand why

someone concerned about the courts making up would have issues with this

case.

Not saying Voting must mean something, or that entrenchment requires them to do it

Harlan Dissent

Population

Number of voters?

Often very different numbers (number of children, non-citizens, etc)

Sometimes use voting age popultion

Sometimes citizen voting age population

Generally go with general population

What does it mean

"one-person, one-vote"

One-Person, one-Vote Jurisprudence

Decision leaves virtually all e lectoral districts in the country unconstiutional

One person, one vote

Harlan dissenting

Reynolds v. Sims (Warren 1964)

Baker v. Carr and Reynolds are revolutionary. Baker opens the door to federal claims ofmalaportionment, but one person one vote not articulated until Reynolds. The schoolintegration cases were in the pipeline and the court wanted a more workable principle here.Left 90% of the congressional districts unconstitutional and all state districts.

Was this a good idea?Frankfurter says no one was denied the right to vote here. This is just votedebasement/dilution. No standard of what a vote should normatively be worth, and this isasking us to pick a political theory of representation, which he thinks isnt the role of thejudiciary. The EP clause doesnt give a way to choose a theory. This is rational, stable,achieves balance between geographic interests. Frankfurter says that the dilution argumentis circular.

The other side: Theres not legislative or executive remedy here because of entrenchment,so have to take extraordinary measures in order to protect constitutional rights. Someone

has to step in. How can we trust the states to give people the equal protection of the laws iftheir vote doesnt count as much? They wont be protected. Without one person one vote,the original intent of the EP clause cannot be carried out/cant achieve equality.

Majority instead says that under EP theyve made stuff up and theyre going to do it again.This wasnt the intent of those who passed EP, but this is the first move toward the modernera. They dont talk about entrenchment or say voting has to have weight, but say EPclause, through constitutional interpretation, mandates this move.

Concern that one person one vote doesnt give enough power to minorities, could say thatdont have districts at all and everybody gets on the ballot and you get seats based on the

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percentage of the vote you get. Ensures better representation of minority interests in theway other countries do. Can the S Ct say that the constitution says this and demands achange? Is that different than what the court did, analytically, in Reynolds? Both weremade up. Is that ok?

Now that its done, cant displace it (where Rehnquist came down), which is why peoplegot upset with Alito saying it was an overreach of the Court that prompted him to go to lawschool. Difference between saying it was wrong then and its wrong now so should beoverturned.

What substantive rule to use to get at entrenchment? There isnt really one. Also, maybemore cautious because of judicial activism of moving to one person one vote.

Districts were roughly equal when made and have changed because of inertia on the part oflegislatures, so potentially could argue that theres a historical basis for equality of votes.(Prof doubts they were worried about it at the time)

If we dont like the rules of political participation, change the rules through the politicalprocess.

Baker leads to the other cases weve read because this is where they see voting in the EP

clause.

One person one vote gets applied relentlessly. What does it mean? One person based onpopulation or number of voters? General rule is to go with raw population.

For Congressional districts, cannot move at all from equality based on population (Karcherv. Daggett). In PA they strike down reapportionment because of a deviation of 19 people.For state districts, theyre allowed to have 10% wiggle room. This leads to gerrymandering.

Pasted from

Penn case overturned because of 19 person deviation

If i t's a congressional district, almost none at all

Most populated district can have 10% more population than the least populated

This leads to shennagins - see Georgia case

State districts get more wiggle room: 10% deviation

How far can you move from 100% equali ty

New Jersey redistricting

Difference between most and least populated district less than 1%, or 3, 674

Had some proposals with smaller differences

F:

NJ wants to say per se good-faith effort to achieve population equality because deviation so

small

And american people restless

The census isn't perfect, don't really know how many people live here

Court:

Court: Violates EPC

Republicans Fighting the political Gerrymander

What is going on here?

Katz: only person crazier than Brennan is the Plaintiff

Karcher v. Daggett (Brennan 1983)

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This plan maximizes Democratic results

So the Repubs are using this as their only option to prevent it the Dem

plan

There's another plan that wouldn't be as good for Dems

There was some hope when 1person, 1vote came about it could be used to stop

Gerrymandering

Making districts compact

Respecting municipal boundaries

Preserving the cores of prior districts

Can deviate a little more if you're trying to avoid

Reasons for states to keep senior reps - they have committee

chairmanships and things

We have traditional districting pricniples

They cite Karcher

Including protecting incumbents

Karcher says avoiding contests between incumbents, not

protecting incumbents

But this is not what Karcher says

Katz: we'll read later cases where the court says that

Avoiding contests between incumbent Reps

Lots of reasons to choose one plan over the other:

Brennan: this is no good, not because there's another plan they might have chosen with a

smaller deviation

Katz: Idea of 10% for State Districts was designed to give states more room to experiment

with other voting procedures and things

Katz thinks what the court is doing is si lly, formal and mechanical; and to what

end?

What is the one person, one vote doctrine trying to do?

But places with prisons, or large non-citizen populations lead to some voters

getting more representation

Basing it on population instead of voters is to go to the idea that the Reps stand for

everyone in the district, not just voters

Katz: maybe we should be talking about what sorts of representation we want

One Person, One Vote invites those who have lost in the political arena to fight their

battles in the federal courts

Here: no one cares about one person, one vote

White Dissenting

Only Native Hawiaans can vote

See Off ice of Hawiian Affiars

Special Utility Districts

Lots of weird things

As we look into local cases we see one person, one vote applied to certain government structures

and not others

Local Governance

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Violated 14th ammendment

Court is looking at powers of these local entities

Cases informed by the ability of people to do it

Locals can go to the state and have them reorganize it

Why apply less vigoursly?

Sufficeint to say 1p1v applies

Exercising a mix of administrative and executive fucntions, and some legislative

fucnitons

Texas Commissioners Court

Struck down, needs to be 1 Perosn 1 Vote

NY: 1 Borough 1 Vote

When does one perosn one vote apply

Judges don't represent us (Wells v. Edwards) they serve

Katz: why are we voting for them if they're not doing what we want

Katz: shouldn't be electing judges anyway

Elected represetnatives do what electorate want, Judges don't

State judicial elections

Salt Rive District in Arizona

Does not apply

Water and Electric power in Pheonix

Sells power to 100's of thousands

Exempt from state and local taxes

Can issue tax exempt debt

Because overviewed by voters

Exempt from state oversight

Sets electric rates calibrated to produce a surplus

Can only vote for managmetn if you're a property owner

Salt River District

F:

No

Stripped of it's voting rights attire

Are we applying strict scrutiny?

Property owners

1 acre 1 vote

Something that looks like an election

Katz: these all go with Kramer- when is something a real governemtn

Taxes

Enacting regulations

Running schools, providing health and welfare

No

Conceived as private entity

Limited to what they can do with the water

Provision of Electricty wasn't a traditional function of government

Not an element of sovereignty

Not the sort of function that triggers strict scrutinty

Relationship of users to District are like relationship of consumer and

business

Don't exercise the sort of bgovernmental powers that invoke Reynolds

Why?

Court: Not bound by 1p1v

Ball v. James (stewart 1981)

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You'd have to conldue it was voting

More like management

Court looks at it like this is osmething different from voting

Everyone who doesn't own property is voiceless

Rates just went up, to benefit the voting class

Everyone uses water, and water is especially important in Arizona

One of the reasons this is exempted from the reuglations Arizona would otherwise put

in place is because its meant to be representative

Counter arguments

Legislature invented this, if you don't like it, go to the legislature and fix it

Powell Concurring

But started class saying 1P1V was crazy judicail activism, why does she hate this case?

Katz Summary: EPC doesn't mandate voting here

Karmer- schools - traditional government function

Compare with Kramer:

Katz: why is the test "what sort of things is the entity doing, the power of the entiteis anddecide if this what should involve voting?"

EPC violated by this voting system

Electricity users directly effected by this

One person one vote should apply here because the direct authority of the

entity over the citizens

Every voter has an interest in the polciy, and rate setting

Decisions to generate surplusses should not be totally in the hands of the

people who depend on it

See Holt dissent - (Brennan) - right to vote implied by direct regulatory power

Hard to see why this case, Holt, isn't about voting if you care about direct regulatory

power

Dissent (missing from casebook)

Like vitamins, get it from some things but not others

Because in Arizona, this water stuff is what matters to people

Katz: hey're wrong on the merits here

The idea that some things lie outside of voting type things is why they're focuses on

the powers of these entities

Katz: the premise here is that this is the kind of thing where voters aren't gettign together to

make the crucial dcisions of se lf-governemtn, something else is going on here, that is

beneath the heroic purposes of voting

Agency set up to protect native Hawaiians and providescholarships and things

Only native Hawaiians can vote

F:

Overturned

Not general governemtnal powers, specialized things

It's a special use district like Ball v. James

Hawaiia's arugmetns

Not going to decide if you're right about the powers

Said you could do it for property owners

But not based on race;

But we never said you could restrict voting to one of these things to a particualr race

Court:

Rice case- Office of Hawaiian Affairs

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Because Hawaiia is exercising the kind of powers governemtns do - protecting a

certain race

By using the race based classifcation, transfomred what the sort of thins were

doing

This implicated the right to vote

This is a vioaltion of the 15th- denied right to vote based on race

Notes and Questions

Gray v. Sanders (Douglas 1963)

Notes and Questions

The Senate, Republican Theory, and Interest Representation

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Wednesday, 9/19: pp. 214-220, 250-254

Notes: Max Czernlawski, Sean Dickson

Thursday, 9/20: pp. 254-261, pp. 278-79 (note 8), pp 261-274Notes: Malissa Durham, Joe Gallagher

Pasted from

Tuesday, 9/25, pp. 265-266, 268-274, 280-286,

Notes: Jeremy Garson, Noah Goodman

Wednesday, 9/26: No class

Thursday, 9/27: pp 308-314, 97-100

Notes: Eric Jarrett, Jeff Klein

Wednesday, October 3: pp. 98-100, 514-526Notes: Danny Lewin, Dana Lovisolo

Thursday, October 4: pp. 528-534, 535 (starting at note 8) - 541, 546-557Notes: Alex Malson, Christy Martenson

Pasted from

Pasted from

An Historical Note on Political Parties

Introduction

The Ballot and State Gatekeeping

Political PartiesSometimes political parties will be seen as state actors and regulated under the 15 th

Amendment, whereas other times states are able to enforce laws against them.Who do we understand as the party? Members of the electorate, officials in public office, orthe party organizational structure (officials, employees, etc.).What happens when the party electorate fights with the party organization?White primary cases led to the passing of the Voting Rights Act because constitutionalprovisions failed to be sufficient to stop these actions.Nixon v. HerndonTexas state law excludes Black Americans from participating in political primaries.This case and related cases use the 14th Amendment rather than the 15th because the caselaw of the time did not understand primary voting as part of the Constitutional right to vote.Explicitly avoids dealing with the 15th Amendment question because of the clearlydiscriminatory nature of the statute at issue.After Nixon v. Herndon, Texas legislature passes a law saying that the executivecommittees of the political parties get to decide who can vote in their primaries. Texas

Political Parties and State Action

The Role of Political PartiesWednesday, September 19, 2012

9:12 AM

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Democratic Party officials only allow white voters. Struck down by Justice Cardozo, Nixonv. Condon, as a violat ion of Equal Protection clause. Dissent argues that the party officialsare not state actors and therefore the 14th Amendment is not applicable no state action.Cardozo argues that the state gave the officials the power to make these decisions under thelaw, this delegation counts as state action the state committees become state actor bydesignation, but party organizations are not state actors without this vesting.After Nixon v. Condon, Texas Democratic Party votes to limit primary to white voters,found to be constitutional because a purely private action (Grovey v. Townsend). Supreme

Court argues that even though the state requires the primaries, parties are free to engage inthis private expressive association.Smith v. AllwrightCourt flips from Nixon v. Condon (unanimous for Black exclusion) to 8-1 againstexclusion, post-WWII.State requirement of a primary procedure requires that it be consistent with the 14 th

Amendment.Dissent argues that this decision is motivated by war-time, anti-communist sentiments.US v. ClassicBallot box stuffing in a primary denies some voters the right to vote.Constitutional right to choose a Congressman includes the right to vote and have it counted,and voters in a primary also have the right to have their vote counted as a right and

privilege of the Constitution where the state law makes the primary integral to theprocedure of choice for the election or when the outcome of the primary is decisive for thegeneral election.Art. 1 Sec. 4, authorizing Congress to regulate elections, applies to the primary when theprimary is essential to the election.Does not overrule Grovey, but sets the stage for demonstrating the relationship betweenstate actors and the party.Smith v. AllwrightSame practice as in Grovey, overrules Grovey.State authorizes party election, runs poll tax, makes qualifications for primary elections,directs the selectino of party officers makes the primary part of state action.Uses the 15th Amendment because once understood primary voting as state action,

implicates the right to vote.State of Texas violates the 15th Amendment by setting up the primary system in a way thatauthorizes a private organization to engage in discriminatory practice the highly regulatednature of the primary except for the delegation of the discriminatory procedure makes it astate action.Terry v. AdamsIn Texas, a group called the Jaybirds hold a creed primary a self-governing club thatbans Black Americans. Every winner of the Jaybird primary then goes on to run in theDemocratic primary, even though they are not required to. Court finds a violation of the15th Amendment.Hard to find a state actor in this process, particularly in light of privacy concerns.

Blacks opinion Jaybird primary brings into being precisely the same type of election thatwould happen if the county had held it, violates the 15 th Amendment. The jaybirds havebecome an integral part of the election. Immaterieal that the state does not control theprocess because the de facto election, of which Black Americans are entirely excluded.Notedoes not announce who violated the 15th Amendment, but argues that the statesinaction in permitting this primary violates the 15 th Amendment by giving up their controlover the election.Frankfurter Concurrence Vital requirement of state responsibility requires the infusion ofstate officials into scheme that prevents Black Americans from voting. Finds the infusion inthe participation of county officials as voters in the primary the sherriff votes as aJaybird, upholds the election, counts as state action.

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Even if the Republicans themselves really did want to open its primaries to independents, Scalia

says that Connecticut doesn't have to honor the wishes of the party in this regard: it is the state'srole to run elections, and Connecticut has a compelling interest in primaries.

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

If the situation was flipped--Connecticut Republicans want closed conventions, and the st ate orders open

primaries--should the analysis change? Katz doesn't think so, but that feels like it impinges more uponassociational interests of the Connecticut Republicans.

Does Tashjian overrule Nader? There independents wanted into the Republican Primary and t he

Republican Party didn't want them in, and the Court held that the Republicans could exclude them. Itseems like the rule, thus far, might be that the party always gets its way.

Pasted from

Scalia dissenting

Rosario v. Rockefeller (1973)

Notes and questions

This meant that Democrats could pick Republican or Democratic candidates for any office in the

primary, and vice-versa.

In blanket primaries, the primary ballot was the same for every voter--there were not separate Democratic

and Republican primaries.

The motivation of CA's change to a blanket p rimary was "expanding candidate choice" to better the

chances of electing moderate/centrist folks.

It seems like our notion of "who makes up the party" is important here--is it the party hacks (who dislike

blanket primaries), or those voters who are registered with the party (who, in each large p arty in CA,favored blanket p rimaries as indicated by the outcome of the ballot initiative)?

Scalia says that state regulation of primaries i s subject to the limits of the First Amendment ; forced

association violates that Amendment.

How can this be squared with Tashjian?! The st ate wins in T ashjian but loses here.

Scalia seems to have a conception of "the party" as being the p arty 's hardline core; he st resses

associational rights of the parties here, including the right of the p arty to set the party's agenda duringprimary elections--something which is compromised by "forc[ing] political parties to associatewiththose who, at best, have refused to affiliate with the party , and, at worst, have expressly affiliatedwith a rival."

For Scalia, "the party " (whose associational interests are at st ake) seems to be the group asserting the right

in court.

On both sides there is a vision of who makes up the p arty --hardliners or registered party members or the

general electorate--which is unsatisfying.

Katz is interested in #3. She thinks the majority is effectively saying that the associational interest

is "bigger" than the "disenfranchisement" that results from members of the other party in a "safe"district not being able to effectively pick a candidate.

California asserted seven state interests: (1) producing more moderate officials (impermissible--not a state

interest); (2) better representing the electorate (same); (3) ensuring that "disenfranchised" voters areguaranteed an effective vote (no one is disenfranchised here--independents just aren't associated with eitherof the two biggest parties); (4) - (7) fairness, greater choice, increased p articipation, greater p rivacy (alllegitimate interests, but Prop 198 is not narrowly tailored to achieving them).

Katz says we can't dismiss the burden of just saying "shut up and be a Republican for a day!"; there

is a First Amendment issue here.

Good point from a student: Maybe the difference between these cases and the White Primary cases is

that in these cases, one could simply register with the other p arty to vote in their primary, whereas in thelatter non-whites could not overcome the exclusion--immutable characteristic!

There is a portion of the opinion not included here wherein Scalia says that it "can't be correct" t hat the

right to cast a meaningful ballot is not at issue here because states don't even have to conduct primaries--sohow could there be a meaningful right to cast such a ballot?

Pasted from

Stevens dissent

California Democratic Party v. Jones (Scalia 2000)

Washington State Grange v. Washington State Republican Party( Thomas 2008)

But theres a wrinkle: candidates get to state a party preference. Unclear what this iso

Washington state used the blanket primary for a long time, but then they lost in at after

Jones. Washington voters passed Initiative 872 (I-872) which was designed to be a

nonpartisan blanket primary as was reflected in the dicta in Jones.

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going to look like. [Student with how the ballot looks today: it just says R and D. EK

finds this interesting b/c its not how she thought it played out.]

District Court strikes i t down because it suggests a party endorsement. 9th Circuit affirms.

9th Circuit judge acknowledges it is different from the blanket primary from Jones. But

nonetheless finds that this places a significant burden on the party to have an unwanted

candidate as their standard-bearer.

SCOTUS reverses 7-2. This came before Crawford and was seen as the writing on the wall for

Crawford. Many thought it was designed to help the outcome of Crawford by creating a new

standard for discouraging facial challenges in election law.

No patience for the argument that voters wil l be confused. He argues that we should

have more confidence in the voting public. Voters will know whats going on. Why

speculate that they would be confused?

o

Thomas writes for the court thinking that this is facially fine. He can imagine a way for it to

be okay: disclaimers, etc. Since this hasnt gone into effect yet, no way to say how it will be

implemented.

How to demonstrate confusion? The Wash. Secretary of State explains the system, the

parties identify their candidates. What would the study look like? The

counterargument to the as-applied challenge may just be that the parties didnt do

enough off-ballot work. Since the state will implement with Washington State Grangein mind, it will do whats needed to avoid the ballot being struck down.

o

Besides, Scalia argues the study is unnecessary. There is a reason I prefer R/D is

there. Its designed to influence voters. Think about David Duke. The party does not

get a place on the ballot to repudiate the fringe/unwanted candidate.

o

This was the beginning of the Courts shift to discouraging facial challenges. And Scalia is

screaming about this in dissent. The as-applied challenge may well be impossible.

Since the parties have no opportunity for counterspeech, it seems like this is designed to

suppress the ability of parties to establish bright-color partisanship. The state is attempting

to push a moderating influence which for Scalia is not a valid interest. He thinks they are

trying to blunt the effectiveness of parties.

Student question: What about the fact that in the partisan blanket primary you will only get

one candidate per party? Here you can get 2 from the same party. EK: It would be an

interesting distinction. It would certainly complicate matters.

This is a form of political stability. Do we want that? Scalia doesnt.o

Student comment: This does weaken the party; moves power away from it. EK: Yes. This is

the point of the Washington ballot. This is what Scalia dislikes. In most elections, the

centrists wil l advance out of the primary.

Student comment: How about we view this as a counterweight to the safe-districting effect

of getting more extreme candidates. How to decide between the state action of fostering

partisanship or fostering moderation?

EK: there is something confusing about the trajectory of Scalia through these cases.

This can be reconciled with Jones. But how do we explain Tashjian where he doesntfind a party interest?

o

Summary: Scalia thinks the burden on the party is big. This will shape how voters view the

parties and takes this out of their control. The candidate gets to hijack the goodwill/brand of

the party.

Pasted f rom

Roberts Concurrence

Scalia Dissent

The interaction of Ballot Access and other Electoral Regulations in Perpetuating the Two-Party

System

The Existing Two-Party System

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They also aid with the longevity of third parties. Makes the barriers election to

election less imposing.

o

Minnesota has an anti-fusion law. Fusion occurs where more than one party selects a

candidate to represent them. Minority parties support fusion because it allows for the

possibi lity for a third-party candidate to win. It also helps to organize dissent against

the major parties and inf luence the main party platforms.

Vote for anti-fusion by the major parties is a precommitment strategy. Prevents

them from appealing to third parties in election cycles where it may otherwise

be attractive to do so. Preserves long-term dominant party strength.

o

Why would minority parties support the anti-fusion law? Because it helps to channel

dissent into the minority party (e.g. Democrats) rather than let third parties flourish.In the long-run they think that this wil l be more helpful.

In Timmons, Dawkins is the incumbent state senator and is a member of the majority

party. He then reserves the endorsement from the New Party. Neither Dawkins nor

his party (DFL) objects.

[Continued next class.]

Timmons v. Twin Cities Area New Party (1997) (p. 308)anti-fusion measureadopted by state of Minnesota in 1901 to (suppress third parties) enhancepolitical stability.

New Party wants to nominate candidate whos already the DFL candidate. Thecandidate, New Party, and DFL are all okay with it. But MN state govt isagainst it.

REHNQUISTAnti-fusion rule doesnt prevent the party from organizing,endorsing who they like, etc.

PROFESSOR SAYS: This is pretty formalistic. Chief Justice saysyou can still organize, but its obvious that they cant have ameaningful participation in the election without fusion.

o

Rehnquist responds: You can still organize and participate in the politicalprocess!

First-past-the-posto

High costs of campaigningo

Besides, many features of our politica l system put burdens on third parties,so how can they be entitled to fusion where theyre not entitled to, say,

proportional representation [i.e., dont elect congresspeople at large]?

Ct. App. Found that the burden on minor parties was severe. Stopped them from(1) Developing alliances; (2) Broadening their electoral appeal.

Big difference between proportional rep. & fusionASSOCIATIONAL RIGHTDistrict elections doesnt preventthirdparties from naming their candidate. Anti-fusion directly stops thirdparties from putting their standard-bearers name on the ballot.

o

Single-member districts help represent each district moreclosely

Interests for fusion are crappy at bestvoter confusion,candidate competition

All Rehnquists other examples have valid (like, actually valid) otherpurposes. The primary purpose of anti-fusion is to crush thirdparties. Justice STEVENS picks up on this.

o

Against Rehnquist

What do we think about this argument?

Timmons v. Twin Cities Area New Party (Rehnquist 1997)

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And the claim in this case is that anti-fusion burdens thirdparties.

Theres clearly no Constitutional obligation for states to promotethird parties interests.

o

For Rehnquist

[we did not advance any reasons why hes right]oArguments for why hes right

For one, no self-respecting lawyer would stand up in court and sayyour honor, we want to get rid of third parties!

o

STEVENS points out that insulation of two parties should countagainst

o

Its just kinda a trope in the Rehnquist court.

Where does political stability even come from?o

PROFESSOR: Well no. Not really.

Isnt the logical result a one-party system? If 2 is more stable than 3,isnt 1 more stable than 2?

o

Arguments for why hes wrong

Beyond this, Rehnquist also comes up with his own state interest: a healthytwo-party system. Political stability is good, and two parties foster political

stability.

Extremely low.

So low that this provision is getting validated by a reason that Minnesotadidnt even advance

What level of review do we see in Timmons?

Dont we want to protect the right of a party to be crazy?

On the other hand, maybe this opinion protects party purity and pre-commits parties against making deals with third parties

Also, shouldnt we see a fussy Scalia opinion here?

Pasted from

Stevens dissent

Souter dissenting

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One jurisdiction: 127,000 voters in 1890. By 1910, there areabout 700.

Largely because of the Constitutional conventions in thesestates designed to disenfranchise black voters.

Giles v. Harris, however, is an enormous part of this.

Background: Explosion of black political participation in the DeepSouth after the Civil War through the 1890s.

Hes a literate black man

So it wont be taken away from him for bringing thiscase

o

Hes a janitor in a federal courthouse

He has been a registered voter in Montgomery from18711901. Hes been voting for 30 years.

Mr. Giles shows up to register in 1902 and is denied.

In 1902, Alabama writes a new constitution: If you register before1903, youre forever registered. If not, you have to take really toughtests that will essentially never allow blacks to vote.

Registrars intentionally stop blacks from registering before the 1903

Giles v. Harris (Holmes 1903)

(The struggle for Black Enfranchsiemnt pg 97)

Wednesday, October 3: pp. 98-100, 514-526Notes: Danny Lewin, Dana Lovisolo

Thursday, October 4: pp. 528-534, 535 (starting at note 8) - 541, 546-557Notes: Alex Malson, Christy Martenson

Pasted from

week, I'd l ike to begin by wrapping up our discussion of the retrogression

standard under Section 5, and thought we would take a look at Texas v. Holder,

a recent decision denying preclearance to the Texas Voter ID measure. I have

not edited the decision and please feel free to skim and skip parts (Parts III A &

B in particular). Then, I'd like to discuss the constitutionality of Section 5 of theVRA, pp. 559-573, 573-584, p. 12 of the attached excerpt from City of Boerne;

and the Shelby County decision. I have not edited Shelby County and here too

you should feel free to skim or skip parts that do not interest you. I expect to

begin the constititutional discussion on Tuesday, and don't think we'll reach

Shelby County until Thursday.

Pasted f rom

Preclearance and the Voting Rights ActTuesday, October 02, 2012

6:50 PM

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cutoff.

So Giles brings the case (and Booker T. Washington secretly paidfor it).

PROBLEM IN THE CASE:This is a suit in equity, and Giles prays for (1) An order requiringthe registrars to put him on the voter rolls; OR (2) Declare the entire

system unconstitutional.

We cant add you to the rolls if we declare the systemunconstitutional!

But if we say the rules are unconstitutional, that doesnt putyou on the rolls!

Justice Holmes says this relief is impossible!

Um but the constitutional defect is that black people arent on therolls. Granting #1 solves #2. Cmon.

Holmes is obviously wrong / showing desperate lack of creativity

MORE FUNDAMENTAL PROBLEM:Even if we issue a declaratory judgment, we wont be able toenforce it. Wed have to re-institute Reconstruction. Equity cantenforce political rights. The state itself or the U.S. politicaldepartments must rectify this wrong.

He knows full well that SCOTUS cant make this happen, and thatif SCOTUS makes a ruling, Congress wont back him up (becausewere amassing an empire and dont want to let people in thePhilippines vote).

Legislatures do things we dont like, and just because wedont like them doesnt mean that we strike them down

PROFESSOR: Is there a parallel toLochnerhere?

Because the 14th and 15th Amendments are SO CLEAR thatthis is not allowed

Plus, here the legislatures are elected undemocratica llybecause so many people were disenfranchised

And then, why is this nothing like Lochner?

[NOTE: The exact same result happened when Giles tried bringingthe suit at law seeking damages, rather than in equity seeking aninjunction.]

AFTER THIS CASE: House elections committee says its no longerin the business of reviewing discriminatory state electionregistration. This Committee says that citizens wanting to challengethese disenfranchising constitutional conventions can (1) Try tovote, and if that doesnt work, (2) Appeal to the courts.

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The doors are now closed EVERYWHERE.

But thats not right! These are White SupremacyEntrepreneurs, who sprung up and took radical action at theturn of the century.

So in 1903, when Justice Holmes said (in so many words) we

could never challenge white supremacy in the Deep Southblack voters had been voting for decades!!!

Constitutional convention failed in Marylando

It barely passed in North Carolinao

Black/white coalitions all over the placeo

Well educated, thriving, black middle classo

And the margin of victory clearly came fromvoter fraud (i.e., the Black Belt came outmost in support of disenfranchisement)

54 of 66 counties in Alabama voted againsto

Disenfranchisement was not monolithic

So everyone is acting as though White Supremacy is so entrenchedthat nobody in the federal government can touch it.

By saying it, he makes it true.

UPSHOT: A different outcome in Giles v . Harris was possible,probably couldve been enforced, and might have changed thecourse of history!

EXAMPLE: Grandfather Clause in Oklahoma (saying you can voteif you or your ancestors couldve voted in 1866obviouslyexcluding black people) struck down under 15th Amendment. Then,Oklahoma changes its system and re-does it with the starting date at1916, and anyone else has to register in a 12-day window. SCOTUS

strikes that down again.

Justice Frankfurter argues that 12 days isnt enough of a windowbecause were dealing with a population that isnt accustomed topolitical participation and isnt motivated enough to get goingwithin 12 days. Justice Holmes probably made that so.

Pasted from

AND NOW! THE FIVE-MINUTE INTRO TO THE VOTING RIGHTS ACT

Voting Rights Act of 1965 (p. 1287)

There has been a slow crawl toward creating voting rights, with acts in the late50s, early 60s, and a little bit of voting rights stuff in the Civil Rights Act.

DoJ is bringing lawsuits against voting rights violations, and even thoughtheyre winning, its not proving effective at all.

In Selma, there are 156 African American voters registered, out of a possible15,000. So theres a peaceful march across the bridge, and its met withextreme violenceand the whole experience is broadcast on national TV.

Then we get the VOTING RIGHTS ACT.

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able to annex land.

School boardcovered jurisdiction. 12 seats on the board. Needs newplan.

-

NAACP has plan which would elect 2 black people. In the record theBoard says no b/c wed elect black people.

-

Janet Reno wont preclear police plan (precleared for police) when itsadopted for school board use b/c theres another plan that would get two

black people on the board.

-

This plan is dilutivebut you never gave them anything. So do youpreclear?

-

Should a plan thats dilutive under 2 be rejected under 5? No.-

Does 2 violation show discriminatory intent?-

retrogression limiting effect prong also limit purpose prong? If so,board could act with discriminatory intent as long as its not worsediscriminatory intent than before.

o

Cabining discriminatory intent to retrogressive discriminatoryintenthappens inBossier II

o

What about 14A here? Not brought, so doesnt matter.o

In 2006, Congress overrules it: discriminatory intent doesnt meanretrogressive discriminatory intent, means discriminatory intent.

o

Does Congress have the power to set up this kind of regimeto goafter purposeful discrimination thats not retrogressive? Thedecision showed lots of hostility to VRA. Theres traditionaldiscrimination and they still ignore it. A sign of dislike of VRA

o

retrogressive intent:-

Bossier Parish cases (late 90s/early 2000)

TX enacts a voter ID law. Its harsh. Indiana looks like nothing incomparison.

-

Can get an ID to vote. No fee, but its not costless. Need to go to office, ithas to be open, and 81 counties dont even have an office. Need to present

ID to get an IDneed a document that will cost as low as $22 (birthcertificate) to much more. Exceptions for elderly and disabled, but only ifthey vote absentee.

-

The fight: who doesnt have ID, and how do we know.-

TX is being difficult. Miss deadlines, not following through onthings.

o

Why do that? Maybe you know its unconstitutionalthe statutesgoing down, so lets push it.

o

If you bring a modest case, you can get preclearance and thenprobably get VRA struck down in the process. But this case mightbe too extreme.

o

Why have an egregious law and then push so hard?o

Complaints with litigation strategy-

3 panel judges said TX acted with discriminatory intent-Theres an effects prong! Facially neutral provisions with discriminatoryeffects are barred! Texas has to show it doesnt have those effects. Texasargued that this should be litigated like Crawfordpurpose only, povertyirrelevant. But thats not how the law works.

-

This is a change in respect to voting. This is a device.

A covered jurisdiction going to get preclearance to show nodiscriminatory purpose or effect in the change in respect to voting.

o

The questions in the case: retrogressive in effect? Discriminatoryintent?

o

What does this case say?-

Texas v. Holder(D.C. Dist. Ct.)

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Retrogressive effect (VRAp 1295): effect ofdiminishing the ability of any citizens onaccount of race. Doesnt have to be purpose todiscriminate on race, but it has an effect onpeople based on race.

Tatel notices that the law makes it harder for poorpeople to vote, and minorities aredisproportionately represented in poverty. Racialminorities less likely to own cars than whitepeoplethis burdens poor people. Constitutionand VRA dont care about poor people, but VRAis about discriminatory effects based on race, andthose are here b/c its discriminatory against poorpeople.

Case says yes, theres retrogressive effect on account ofrace.

What if you enacted all the suggestions at the end of theopinion? Doesnt voter ID still make things worse for

poor people? Isnt anything youre going to ask goingto be harder for poor people.

Maybe Texas is saying even a modest provision runsafoul of the standard. Maybe DOJ was right to preclearGA, b/c thats a bad case to keep VRA up, but this isbetter.

What if TX had done early voting, and after a fewelection cycles said no b/c expensive and fraud, so theywant to switch back. Can they step back from that? Itmakes it harder for poor thus minorities to vote if theydo that.

Premise of VRA: minority voters cant fend forthemselves in covered jurisdiction b/c normalpolitical process not open to their needs. See TXrejecting the moderating amendments, and we canpoint to TX for why VRA is still required.

This is exactly what the statute was meant to getat.

By not presenting a more modest case, TX wentway over the line of whats permissible. In moremodest cases, DOJ will preclear itwill allow

burdens, just not this extreme.

Effects tests are complicated. Just the meredisparity never winsneed disparity and more.

So at some level this case is an outrage. TX said wedont have to follow rules. Enacted radical provisionw/o regard for VRA, litigated it hard and implausibly so

long as the VRA is constitutional. In making theseclaims they make the case for why we still need VRA.

So what does this case stand for?o

Rule here: voter ID provision with these characteristics wont beprecleared in 2012.

o

If this went to SCt, would SCt affirm? Not obvious. But maybe theywont take it.

o

Hard to say. A different population in TX that would change theeffects of the law.

o

If TX had just copied GA law, would that have been precleared?-

What could have changed it? Maybe if theyd behaved in discovery. Or iftheyd been a little more moderate. If it seemed like they were trying at

-

voting rights outline one

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