Election Law 2008

Front 1

Colgrove v. Green (1946)

Back 1

* IL vote dilution case
* Frankfurter doesn't want to be in the political thicket

Front 2

What determines a political thicket?

Back 2

* Ruling would cause crisis
* Remedy belongs to coordinate branch of gov't

Front 3

Baker v. Carr (1962)

Back 3

* TN vote dilution
* Brennan's 6 factor political question test
* Clark concurrence - crazy quilt created by an issue that has no other means of redress.

Front 4

Brennan's 6 factor political question test

Back 4

PPULDD
* POTENTIAL for embarrassment from opposing pronouncements
* Decision must include POLICY determination
* UNUSUAL need to for adherence to political decision
* LACK of Standard
* DEMONSTRABLE constitutional commitment
* Decision would DISRESPECT coordinate branch

Front 5

Westbury v. Sander (1964)

Back 5

* Establishes equipopulousness based on Article I, §2.
* Different rules for different levels of gov't

Front 6

Reynolds v. Sims (1964)

Back 6

* Establishes that state legislative districts must be roughly equipopulous per 14th amendment.
* Establishes that right to vote is preservative of all other rights
* Under 14th Amendment EP, people have right to equal representation in both houses of state legislatures.

Front 7

Lucas v. 44th General Assembly of the State of Colorado

Back 7

* Colorado votes on reapportionment
* Majority found that an individual's right to vote cannot be put to referendum
* Concurrence noted that affirming such a scheme would set dangerous precedent, subjugating minorities away from power thru group vote

Front 8

Karcher v. Daggett (1983)

Back 8

* <1% overall relative deviation plan b/c aiming to make pleasantly shaped districts
* Majority notes that there must be race to zero
* Between equality and inequality, choose equality
* White's dissent - anything under 1% is good enough

Front 9

Vieth v. PA (2003)

Back 9

* 19 person differential, clear partisan gerrymander
* Establishes equipopulous rules

Front 10

What are rules to determine equipopulousness?

Back 10

* π must show that better plan can be drawn
* State must show that existing plan deviates for legitimate purposes
* π must show that their plan reaches the identified objectives as well

Front 11

Legitimate state objectives in redistricting

Back 11

CROPP
* COMPACT districts
* RESPECTING boundaries
* OTHER non-discriminatory purposes
* Preserving core of PRIOR districts
* PROTECTING incumbents

Front 12

Giles v. Harris (1903)

Back 12

* AA isn't allowed to register to vote
* Holmes affirms dismissal on grounds that the issue isn't resolvable in the courts.
* Also asserts that even if justicable, court has no power to enforce
* Creates tacit support of Jim Crow Laws

Front 13

White Primary Cases

Back 13

* Nixon v. Herndon (1927)
* Smith v. Allwright (1944)
* Terry v. Adams (1953)

Front 14

Nixon v. Herndon (1927)

Back 14

* Executive committee is picking primary nominees
* Holmes finds that it is discriminatory state action as the state has delegated a state power to a discriminatory entity
* Requires that there be a convention of some kind
* Refrains from getting into 15th Amendments as 14th Amendment is a clearer violation.
* Grovey v. Townsend challenges w/ a whites-only convention - SCOTUS lets stand b/c party's exclusion of non-whites isn't state action

Front 15

Smith v. Allwright (1944)

Back 15

* Reverses Grovey, Dems won't issue a ballot to AA on grounds that they are private entity and can choose their own members
* SCOTUS holds that as an agent of the state, the Dems cannot be discriminatory
* Decided under the 15th Amendment b/c is applicable to state and private entities

Front 16

Terry v. Adams (1953)

Back 16

* Jaybird Democratic Primary
* Black's majority - Jaybirds have cleared the field of competition, thus it is state action
* Frankfurter's concurrence - State official participation = state approval
* Used 15th Amendment analysis

Front 17

Whitcomb v. Chavis (1971)

Back 17

* Right to Aggregate - MC case - Center Twp thinks their votes are being diluted
* SCOTUS uses a pseudo-effects test - only source of discriminatory effect is due to racial bloc voting on the part of the electorate
* White notes that the districts are drawn per politics, not race.
* Doesn't invalidate the scheme b/c lack of proportional representation doesn't necessarily evince vote dilution - someone always loses in an election . . .

Front 18

White v. Regester (1973)

Back 18

* Determining whether state legislative scheme is invidiously discriminatory
* SCOTUS finds that lack of proportional representation doesn't evince discrimination
* Finds π must show that political processes were not equally open to participation by the groups in question
* Uses totality test
* Finds that multi-member districts can be unconstitional if they are being used to cancel out the voting strength of minority groups.

Front 19

Zimmer Factors

Back 19

DUPE MARA
* history of DISCRIMINATION
* UNRESPONSIVE legislators
* PREFERENCE for at-large or multi-member districts
* large ELECTORAL districts
* MAJORITY vote requirements
* lack of ACCESS to slating process
* lack of RESIDENCY districts
* ANTI-single shot provisions

Front 20

Mobile v. Bolden (1980)

Back 20

* Commissioners to numbered positions, requiring majority vote - Are AA votes diluted b/c none of the commissioners are of AA choosing?

Front 21

Mobile v. Bolden (1980)
Stewart Plurality

Back 21

* Enacts purpose test to limit claims by minority complainants
* Test whether/if legislators were motivated by discriminatory purpose
* Really a totality of the circumstances test - do all the circumstances add up to evince discriminatory purpose?
* Finds no invidious purpose or lack of access to participation.
* Evaluates under 14th amendment finding no foundation for §2 or 15th amendment claim

Front 22

Mobile v. Bolden (1980)
Blackmun concurrence

Back 22

* There is a discriminatory purpose, but the district court's action was too intrusive in saying that the city gov't must convert to a mayor-counsel system.

Front 23

Mobile v. Bolden (1980)
Marshall's dissent

Back 23

* Would prefer an effects/ results test as it would be easier for πs to prevail
* Believes that 14th amendment analysis would be more appropriate since a fundamental right is at stake
* Reasons that 1P1V analysis only requires a discriminatory effect.

Front 24

Mobile v. Bolden (1980)
Stevens' concurrence

Back 24

* Can't litigate every action that adversely impacts some group
* Utilizes Gomillion Test
* Structure not the result of routine political decision
* Structure has adverse impact on minority group
* System unsupported by neutral justification
* No guidance for when test is applicable

Front 25

VRA § 2

Back 25

* No qualifications or prerequisites to voting imposed that RESULTS in abridgment due to race.
* Violation evinced by TOTALITY OF CIRCUMSTANCES that processes not equally open (less participatory opportunity)
* Extent to which minority candidates have been elected is component of totality, but doesn't in and of itself, demonstrate a discriminatory effect.

Front 26

Thornberg v. Gingles (1986)
Brennan Plurality

Back 26

3 prong test to weed out unfounded claims
1. Minority is sufficiently large and geographically compact to constitute a majority in single member district
2. Minority politically cohesive
3. White majority subverts minority votes/ candidates
*πs don't have to show causation, mere correlation should suffice.

Front 27

Thornberg v. Gingles (1986)
O'Connor concurrence/dissent

Back 27

* Preconditions are good, but under this scheme they become the whole ball game
* Need to make the real test totality of the circumstances

Front 28

Johnson v. DeGrady (1994)

Back 28

* District court finds Gingles met and that additional majority minority districts can be drawn
* Souter's majority states just because a district can be drawn doesn't mean it should be drawn
* Lack of a political famine doesn't evince a political feast
* Preconditions are more determinative for at-large districts; totality of circumstances more apt for single member (senate/zimmer factors)
* Reverses DC court finding that under §2, all majority-minority district that can be drawn should be drawn.

Front 29

Holder v. Hall (1994)

Back 29

* Seeks to enlarge county dictatorship to a 5 member council from 1 (20% of pop'n is AA)
* Kennedy found that a violation cannot be found when there's no manageable standard

Front 30

Holder v. Hall (1994)
Thomas' concurrence

Back 30

* § 2 exists to ensure universal vote access, not participation or to police vote dilution
* Really, the court needs to stay out of the political thicket - it's a mess and it jeopardizes the court's impartiality by getting involved.
* §2 allows the court to gerrymander by race and heighten racial tensions

Front 31

VRA § 5

Back 31

* Provides a check on local officials at every step of the way.
* Only applies to certain areas

Front 32

What must a covered district do if they wish to institute a voting change?

Back 32

* Submit changes to AG or DC District Court for preclearance
* Fed review to make sure no discrimnatory purpose or effect (no retrogression)
* Voting schemes frozen in place unless preclearance granted

Front 33

How are § 5 enforcement actions constructed?

Back 33

* π is private citizen
* ∆ is covered jurisdiction
* Cases often filed in local District Court
* Burden proof upon π to show that practice involves non-pre-cleared change in voting
* No discrimination necessary

Front 34

How are §5 declaratory judgments actions constructed?

Back 34

• π is covered jurisdiction seeking change
* ∆ is USAG
* Suit filed in DC district court
* Question is whether change is discriminatory in purpose/effect
* π has burden of persuasion to show there's no discriminatory purpose or effect

Front 35

Allen v. State Board of Education (1969)
Majority

Back 35

What needs § 5 preclearance?
* Focuses on all actions necessary to make a vote go through
* Not just limited to participation

Front 36

Allen v. State Board of Education (1969)
Harlan's concurrence

Back 36

* VRA should only be limited to participation as §5 exists to support §4 (eliminating the practices that prevented minority voters from voting in the south)

Front 37

Allen v. State Board of Education (1969)
Black's dissent

Back 37

* VRA isn't constitutional as it interferes with state sovereignty

Front 38

Presley v. Etowah County Commission (1992)

Back 38

Commission expanded from 4 members to 6. New members don't have same powers as old ones.
* Kennedy's majority says that changes that only affect distribution of power are not subject to § 5 preclearance - have no impact on voting

Front 39

What is retrogression?

Back 39

* Things are worse off in the new scheme than in the old.
* Touchstone of § 5 approval
* Measured by ability to control a district

Front 40

Beer v. US (1976)

Back 40

What constitutes discriminatory effect?
* Retrogression - if a scheme enhances the position of racial minorities with respect to their effective exercise of electoral franchise cannot have the effect of diluting or abridging the right to vote.

Front 41

Reno v. Bossier Parish School Board (2000)

Back 41

* DC tries to use § 5 purpose test - even if there isn't a discriminatory effect, if the apportionment itself so discriminates on the basis of race or color, it is against Constitution.
* Can't force jurisdictions to create more majority-minority districts
* Only retrogression is prohibited

Front 42

Shaw v. Reno (1993)

Back 42

How does a jurisdiction balance VRA requirements without districting excessively on the basis of race?
* O'Connor's majority opinion - Districts should conform to traditional districting criteria (compactness, contiguousness, respect for political subdivisions)
* To find a racial gerrymander, must demonstrate
1. race is predominant factor in districting
2. Strict scrutiny applied to compelling state interest involved.
* Found an unconstitutional racial gerrymander

Front 43

Easley v. Cromartie (2001)

Back 43

* Contested district redrawn to be more compact, redrawn to be 48% AA, same candidate continues to get elected
* Consideration of AA Dem district as being more reliable dems, not a racial gerrymander
* Thomas' dissent - really, we shouldn't be considering race at all

Front 44

Gaffney v. Cummings (1973)

Back 44

* Bipartisan gerrymander - SCOTUS stays out of it

Front 45

Davis v. Bandemer (1986)

Back 45

* IN case
* Court fails to establish manageable standard to what constitutes partisan gerrymander

Front 46

Vieth v. Jubelirer (2004)

Back 46

* 19 person difference in overall deviation - equipopularity attained, only partisan gerrymander remains
* SCOTUS doesn't want to get involved (No political thicket!)
* Scalia's plurality focuses on who s/b designing the districts;
* is aegis of legislature, but without court involved legislatures might run amok.
* standard is whether court intervention will produce a better quality of legislators.
* Souter proposed a 5 part test for adjudicating partisan gerrymanders
* Kennedy wants to continue to adjudicate in case a standard is later discovered

Front 47

Lassiter v. Northhampton County Board of Elections (1959)

Back 47

Literacy test upheld under rational review b/c ability to read bears a legitimate relation to using a ballot

Front 48

Harper v. VA Board of Elections (1966)

Back 48

* Poll tax in VA, 14th Amend eliminated such in federal elections, VRA instructed AG to go after states still implementing
* Struck down as being facially discriminatory under 14th Amendment EP review

Front 49

Harper v. VA Board of Elections (1966)
Black's Dissent

Back 49

* Distinctions drawn and discrimination enacted by states don't violate EP so long as they are not irrational, unreasonable, or invidious.

Front 50

Harper v. VA Board of Elections (1966)
Harlan's Dissent

Back 50

* There is rational reasoning for instituting a poll tax- they are traditionally part of the mix
* Restrictions on who can/can't vote should only be restricted after wide public debate - like the sufferage debate.

Front 51

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

Back 51

* Stockbroker in his parent's basement
* Unjustified discrimination in determining who can/can't participate undermines gov't legitimacy

Front 52

Kramer v. Union Free School District No. 15 (1969)
Stewart's dissent

Back 52

* Must draw line somewhere as to who constitutes an interested party re: school board elections.
* This is a reasonable line.