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Journal Article

Beyond the Discrimination Model on Voting

01 Nov 2013-Harvard Law Review (Harvard Law Review Association)-Vol. 127, Iss: 1, pp 95-126
TL;DR: The Voting Rights Act of 1965 (VRA) was the crown jewel of the civil rights era as discussed by the authors, but it has been shown to not be constitutionally responsive to the America that the Act itself helped create out of the overt racialism of the American South.
Abstract: Retirement with dignity was denied to section 5 of the Voting Rights Act of 1965 (1) (VRA). If ever a statute rose to iconic status, a superstatute amid a world of ordinary legislation, (2) it was the VRA. In the course of not quite half a century, the Act was pivotal in bringing black Americans to the broad currents of political life--a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundation for the election of an African American President. Deciding when the time has come is never easy. We see the athlete one step too slow to carry the team, the tenor no longer able to hit the necessary C, the pop star straining to hide the arthritic hip. Invariably there are the moments that recall stardom, be they increasingly seldom. But ultimately each waning icon is allowed to step down gracefully, carried by the fans basking in the memories of faded glory. What President Lyndon Johnson introduced to America as the crown jewel of the civil rights era has now been struck down by the Supreme Court as timeworn, no longer constitutionally responsive to the America that the Act itself helped create out of the overt racialism of the American South. According to the Court in Shelby County v. Holder, (3) civil rights-era concerns could no longer justify requiring certain jurisdictions to obtain Department of Justice (DOJ) approval before altering voting procedures. For instance, until the Court's decision, Shelby County, Alabama, was subject to administrative preclearance because less than fifty percent of its citizens voted in the 1964 presidential election. (4) For the Court's majority, that was simply too long ago, leaving section 4, the VRA's coverage formula, out of touch with current reality: "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions." (5) A constitution demanding a respect for the dignity of the states and contemporary proof of a close fit between means and ends when race-based distinctions are drawn allows no room for sentiment. "That is no country for old men," wrote William Yeats of the willingness to cast aside the once vibrant but now rendered "a paltry thing." (6) And a Court no longer attached to the past glories of the Act looked with disregard at an odd legislative structure that tied its regulatory framework to turnout statistics from the 1964 presidential election. As a formal matter, the Court struck down only the formula and left untouched the constitutionality of the VRA's preclearance structure. The Court took pains to leave open the prospect of a renewed coverage formula, one that does not turn on what seventy- and eighty-year-old voters did a half century ago, perhaps sending our currently dysfunctional Congress on a new wayward journey: "Congress may draft another formula based on current conditions." (7) But despite the Court's care to avoid ruling on section 5, it was the indignity that "[s]tates must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own" (8) that provided the unacceptable constitutional insult. (9) The Court's unromantic constitutional ruling should prompt rethinking whether the regulatory model of prior federal approval of voting changes is truly responsive to the voting problems of today. The critical assumptions of the challenged provisions of the Act corresponded to a world in which overt racial exclusion meant that black citizens faced first-order impediments simply to getting registered to vote and in which only the federal government could assume the responsibility to challenge the persistence of Jim Crow. For much of post-Civil War American history, the prospect for goal-oriented abuse of election processes has been directed largely--though never exclusively--at black Americans. …
Citations
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Journal ArticleDOI
TL;DR: For example, this paper found that members of Congress who represented jurisdictions subject to the pre-clearance requirement were substantially more supportive of civil rights-related legislation than legislators who did not represent covered jurisdictions.
Abstract: Despite wide scholarly interest in the Voting Rights Act, surprisingly little is known about how its speciVc provisions aUected Black political representation. In this paper, we draw on theories of electoral accountability to evaluate the eUect of Section 5 of the Voting Rights Act, the preclearance provision, on the representation of Black interests in the 86th to 105th Congresses. We Vnd that members of Congress who represented jurisdictions subject to the preclearance requirement were substantially more supportive of civil rights-related legislation than legislators who did not represent covered jurisdictions. This result is robust to a wide range of model speciVcations, empirical strategies, and characterizations of key variables, and persists over the entire time period under study. We report further evidence that the eUects of the VRA were stronger in more competitive districts, and when Black voters comprised larger portions of the electorate. Our Vndings have especially important implications given the Supreme Court’s recent decision in Shelby v. Holder. Word Count: 8,420

22 citations

Journal Article
TL;DR: The authors show that black voters in North Carolina disproportionately cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA, and preregistered sixteen and seventeen year old voters are disproportionately black.
Abstract: Shortly after the Supreme Court in Shelby County v. Holder struck down section 4(b) of the Voting Rights Act (VRA), the State of North Carolina enacted an omnibus piece of election-reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby, portions of North Carolina were covered jurisdictions per the VRA’s sections 4 and 5—meaning that they had to seek federal preclearance for changes to their election procedures—and this motivates our assessment of whether VIVA’s many alterations to North Carolina’s election procedures are race-neutral. We show that in presidential elections in North Carolina black early voters have cast their ballots disproportionately in the first week of early voting, which was eliminated by VIVA; that blacks disproportionately have registered to vote during early voting and in the immediate run-up to Election Day, something VIVA now prohibits; that registered voters in the state who lack two VIVA-acceptable forms of voter identification, driver’s licenses and non-operator identification cards, are disproportionately black; that VIVA’s identification dispensation for voters at least seventy years old disproportionately benefits white registered voters; and, that preregistered sixteen and seventeen year old voters in North Carolina, a category of registrants that VIVA prohibits, are disproportionately black. These results illustrate how VIVA will have a disparate effect on black voters in North Carolina.

14 citations

Journal ArticleDOI
TL;DR: Rogowski et al. as mentioned in this paper found that black citizens in jurisdictions covered by Section 5 of the Voting Rights Act, the preclearance provision, exhibited consistently higher levels of trust in government and more positive perceptions of governmental responsiveness.
Abstract: The Voting Rights Act of 1965 was widely heralded as a solution to persistently high levels of Black political alienation and cynicism. But despite the importance of the Voting Rights Act for the political representation of historically marginalized groups, little is known about how citizens protected by key provisions of the Act viewed democratic institutions. Integrating insights from the policy feedback literature with studies on the relationship between electoral institutions and attitudes toward government, we predict that the voting protections embedded in the Voting Rights Act led to more favorable attitudes toward government among affected communities. Analyses of data from 1972 to 1998 show that Black citizens in jurisdictions covered by Section 5 of the Voting Rights Act, the preclearance provision, exhibited consistently higher levels of trust in government and more positive perceptions of governmental responsiveness. However, we find no evidence that preclearance was associated with similar patterns among whites. Our results may have especially important contemporary relevance given recent controversies over changes to state and local election laws. Legal scholars, historians, political scientists, public officials, and community activists argue that the Voting Rights Act of 1965 (VRA) was among the most important legislative enactments of the twentieth century. According to Jon C. Rogowski is an assistant professor in the Department of Government at Harvard University, Cambridge, MA, USA. Sophie A. Schuit is a J.D. candidate at Columbia Law School, New York, NY, USA. The authors thank the Office of Undergraduate Research and the Department of Political Science at Washington University in St. Louis for generous research support. Chris Elmendorf, Jim Gibson, Andrew Reeves, Maya Sen, and Doug Spencer provided helpful comments. This is one in a series of papers by the authors, and the ordering of authors’ names reflects the principle of rotation. An earlier version of this paper was presented at the 2016 Annual Meeting of the Midwest Political Science Association. *Address correspondence to Jon Rogowski, Harvard University, Department of Government, 1737 Cambridge Street, Cambridge, MA 02143, USA; email: rogowski@fas.harvard.edu. doi:10.1093/poq/nfy007 Advance Access publication March 31, 2018 Public Opinion Quarterly, Vol. 82, No. 2, Summer 2018, pp. 343–365 D ow naded rom http/academ ic.p.com /poq/article-ct/82/2/343/4958165 by H avard aw Shool Lrary user on 17 N ovem er 2018 Issacharoff (2013, p. 95), the Voting Rights Act “was pivotal in bringing black Americans to the broad currents of political life—a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundations for the election of an African American president.” The VRA contributed to increased voter registration and turnout among Blacks and linguistic minorities (Tate 1993; Jones-Correa 2005; Fraga 2016) and improved descriptive (e.g., Grofman and Handley 1991; Lien et al. 2007) and substantive (e.g., Whitby and Gilliam 1991; Lublin 1997; Whitby 2000) representation of people of color. In this paper, we study the consequences of the VRA for public opinion. Prior to the VRA, political mistrust, alienation, and cynicism were significantly higher among Blacks than whites (e.g., Aberbach and Walker 1970; Abramson 1983). Black political attitudes, including orientations toward the political system, have been shaped by historical legacies of slavery, the failures of Reconstruction, and Jim Crow (e.g., Dawson 1994), which may explain relatively low perceptions of legitimacy among Blacks a half-century ago.1 Successful efforts by civil rights leaders and activists to secure guaranteed voting rights from the federal government, however, may have significantly reshaped attitudes toward government among members of historically marginalized groups. We offer two main contributions to the study of public opinion and race. First, while existing research devotes significant attention to how descriptive relationship affects political attitudes among racial minority groups (e.g., Gay 2002; Marschall and Shah 2007), we focus on how attitudes toward government are shaped by perceptions of democratic legitimacy. Just as trust in government is shaped by electoral (e.g., Rahn and Rudolph 2005) and governing institutions (e.g., Marschall and Shah 2007), political inclusion is an important determinant of how citizens feel about their government. Second, we integrate insights from research on policy feedback (see, e.g., Soss 1999; Campbell 2003; Weaver and Lerman 2010; Erikson and Stoker 2011) with the study of electoral institutions. Our argument predicts that individuals affected by the provisions of the VRA developed more favorable attitudes toward government because of the opportunities it provided for political inclusion. We test our argument in the context of the preclearance requirement outlined in Section 5 of the VRA. This provision prohibited certain jurisdictions from changing election laws without federal approval and provided security for the voting rights of historically marginalized groups living in those areas. Data from the American National Election Studies conducted from 1972 to 1998 show that Black citizens living in counties subject to 1. The historical legacies of slavery have also shaped white political attitudes among whites (Acharya, Blackwell, and Sen 2016). Rogowski and Schuit 344 D ow naded rom http/academ ic.p.com /poq/article-ct/82/2/343/4958165 by H avard aw Shool Lrary user on 17 N ovem er 2018 federal preclearance reported significantly higher levels of trust in government, evaluations of government responsiveness, and approval of political institutions. These results are robust to a number of model specifications and empirical strategies. Moreover, we find no discernible evidence that preclearance had an effect on white political attitudes. Our findings have important implications for how democratization and electoral institutions affect attitudes toward the state. Electoral Institutions, Political Representation, and Attitudes toward Government The maintenance of democratic political institutions requires both diffuse and specific support. Diffuse support characterizes the public’s respect for and recognition of the political authority vested in institutions, while specific support refers to the public’s evaluations of incumbent political authorities (Easton 1975). These two dimensions of support make it possible for citizens to be personally upset by, for instance, the behavior of incumbent legislators (specific support) but still respect the authority of Congress to make the nation’s laws (diffuse support). Diffuse support thus helps maintain political institutions even in the face of dissatisfaction with particular political officials. Earlier scholarship has found that feelings of political alienation and alienation are associated with lower levels of support both for incumbent officeholders as well as the system as a whole (Citrin et al. 1975). We argue that the protection of voting rights in democracies affects citizens’ attitudes toward government. As Levi (1998, p. 90) argued, “The belief in government fairness requires the perception that all relevant interests have been considered, that the game is not rigged.” Electoral institutions play a key role in structuring beliefs in fairness and the representation of interests. By prescribing the “rules of the game,” electoral institutions affect citizens’ ability to participate in politics, influence election outcomes, and affect government policymaking. When electoral institutions and the outcomes they generate are perceived as biased, the public is likely to express greater disapproval of both the officeholders and the government system more generally.2 Our argument posits a feedback loop that links citizens’ political inclusion to their attitudes toward government. Just as participation in social welfare 2. Citizens may also use motivated reasoning and related processes to evaluate government and political figures. For instance, citizens who support their political officials may view those officials as responsive to their political interests and values (e.g., Lenz 2012). Our analysis cannot rule out this possibility. However, it is relatively uncontroversial to say that in the context of our analysis of the VRA, attitudes toward government among historically marginalized groups had been structured by generations of institutional and political inequalities rather than by those groups’ decisions to oppose government and hold more negative attitudes as a result. Electoral Institutions and Democratic Legitimacy 345 D ow naded rom http/academ ic.p.com /poq/article-ct/82/2/343/4958165 by H avard aw Shool Lrary user on 17 N ovem er 2018 programs (e.g., Soss 1999), the criminal justice system (e.g., Weaver and Lerman 2010), and the Vietnam draft (e.g., Erikson and Stoker 2011) affects political attitudes and behaviors, citizens are likely to view government as legitimate to the extent they can influence it. Policies that expand or restrict voting access shape the ability of citizens to express political voice, and with them citizens’ affective orientations toward government. This argument builds upon several strands of related research. For instance, local districting and electoral institutions have been shown to affect government trust among historically marginalized groups (e.g., Rahn and Rudolph 2005), largely because these institutions shape the opportunities for residents to meaningfully effect political change in their communities. Research in comparative politics finds that government trust in post-communist nations was higher in societies that protected individual liberties (Mishler and Rose 1997, 2001), while other kinds of political institutions, including the nature of party (Miller and Listhaug 1990) and elect

6 citations

Journal ArticleDOI
TL;DR: The Twenty-Seventh Annual Survey of American choice-of-law cases was published by the Association of American Law Schools Section on Conflict of Laws (AALSL) as mentioned in this paper.
Abstract: This is the Twenty-Seventh Annual Survey of American choice-of-law cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws and is intended as a service to fellow teachers of conflicts law, both in and outside the United States. Its purpose remains the same as it has been from the beginning: to inform, rather than to advocate. This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2013, and posted on Westlaw by January 15, 2014. Of the 1,356 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law.This Survey is longer than the Surveys of any of the previous 26 years because 2013 produced more, and more noteworthy, cases than any of the previous years. The following are some of the highlights: (1) Five decisions of the U.S. Supreme Court holding, respectively, that: (a) The Alien Tort Statute does not apply to conduct and injury occurring entirely in another country; (b) Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” for federal law purposes so as to exclude same-sex relationships, is unconstitutional; (c) The Federal Arbitration Act trumps the provisions of the Sherman Antitrust Act; (d) The “first sale” doctrine as codified in the Copyright Act applies to copies of copyrighted works lawfully made abroad and first sold abroad; and (e) The National Voter Registration Act preempts an Arizona law that sets more stringent standards for proof of citizenship when registering to vote; (2) A sixth Supreme Court decision explaining the methodology that federal courts should use when evaluating venue challenges in cases involving choice-of-forum clauses; (3) Two federal appellate decisions involving piracy off the Somali coast, and several decisions involving the extraterritorial reach of federal statutes in civil and criminal cases; (4) Several state court decisions striving to protect consumers, employees, and other weak parties through the few cracks left by the Supreme Court’s decisions on arbitration and choice-of-forum clauses; (5) An assortment of interesting cases involving products liability, other cross-border torts, economic torts, and other tort conflicts; (6) A case holding that enforcement of a Japanese tort judgment against a California Church is not “state action” triggering constitutional scrutiny under the Constitution’s Free Exercise clause, and that the judgment is not repugnant to public policy; (7) A case holding that one state’s dismissal of an action on statute of limitation grounds is a dismissal “on the merits,” barring a second action on the same claim in another state; and(8) A case defining “habitual residence” and “wrongful” removal or retention of a child under the Hague Convention on Child Abduction.
Journal ArticleDOI
Ada Guven1
TL;DR: In this article, a description of the concept of free and fair election being the most fundamental principle defining credible elections is offered, which they must reflect the free expression of the will of the people.
Abstract: This article offers a description of the concept free and fair election being the most fundamental principle defining credible elections is that they must reflect the free expression of the will of the people. Human rights treaties and international law doctrine have established that in order to hold democratic elections, states should assure their transparency, accountability and most of all must be inclusive by giving any citizen the equal opportunities to participate and be elected in the elections. These broad principles are strengthened by several electoral process-related responsibilities, as well as several key rights and freedoms, each of which derive from public international law. The paper aim in the second part to analyse the article of the US constitution that provide for the criteria of free and fair elections and more specifically the principle of ballot secrecy. Furthermore, the article will analyse the caselaw of the Supreme Court of US regarding the right to vote and elections and the interpretation of this Court in the application of the legislation.