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STANFORD UNIVERSITY
School of Law
Final Examination in Law 577-0-01, Regulation of the Political Process
Professor Karlan
Due: May 11, 2002
One-Day Take-Home
Four Questions (one with subparts)
8.30 a.m.-4.30 p.m.
INSTRUCTIONS
1. This is an open book examination. I do not expect you to do any original research during the
examination. Thus, there is no need to go beyond your class notes and the casebook. When it comes to
matters of state law within the hypotheticals, take my statements of state law as correct. Do not look up the
state law, since I may have altered it substantially for purposes of the questions.
2.
This examination consists of four questions. Each counts equally. Budget your time and
space accordingly. Please be clear which question (and which subpart, where that is relevant) you are
answering.
3.
You will have eight hours to complete this examination. It is designed to give you time to
think about, and outline, your answers. Moreover, I value organization and clarity, so refrain from displaying
knowledge that is not relevant to the questions you have been asked. Take time for lunch or a snack.
4.
Charles Dickens was paid by the word, but your reward is not being calculated on the basis of
verbiage. There is an absolute word limit of 3000 words for the examination. (This is roughly 9-10 pages
of double-spaced typing if you use one inch margins, and CG Times 12 point type.) You must write, at the
end of the examination, immediately before the Honor Code statement, the number of words you have
used. If you either fail to disclose the number of words used or exceed the limit, you will be penalized.
5.
If you are writing your examination by hand, please write on every other line on one side of
the page only.
6.
Please write at the end of your examination the following statement: "I accept and
acknowledge the Honor Code," and sign (or type) your examination number (not your name).
7.
You must hand in the examination on time. If your examination is turned in late, your score
will be reduced.
Good luck, today, on your other exams, this summer, and with the rest of your life. You were a terrific
class. Thanks for everything.
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QUESTION I
The following bill was passed by the Louisiana Legislature on March 15, 2002.
SENATE BILL 02-007
Be it enacted by the Louisiana Legislature
That section 30-10-306 of the Louisiana Revised Statutes is amended by the addition of a new
subsection, to read:
30-10-306. Commissioners' districts - vacancies. (1) Each parish shall be divided into three compact districts
by the board of parish commissioners. Each district shall be as nearly equal in population as possible based on
the most recent federal census of the United States minus the number of persons serving a sentence of
detention or confinement in any correctional facility in the parish as indicated in the statistical report of the
Department of Corrections for the most recent fiscal year. Each district shall be numbered consecutively and
shall not be subject to alteration more often than once every two years. (2) If any commissioner, during his of
her term of office, moves from the district in which he or she resided when elected, his or her office shall
thereupon become vacant, to be filled in the next special election.
(The underlined words constitute the amendment to the previous statute.)
You are counsel to the newly elected Governor of Louisiana, Beauregard Bienpensant. BB, as he is
known (remember the boost those nicknames can give candidates) was elected as a reform candidate, beholden
to no one. BB hands you the following newspaper article. He then asks you for your assessment of the bill.
Tell me whether we are likely to end up in federal court if I sign this, m ptit chou (my little cabbage, as
he endearingly calls you because you have such a sensible head on your shoulders). What are the likely
claims? What facts are important to know? He then adds, I was elected to do the right thing. So dont just
tell me what the law requires. Tell me also what you think as a normative matter.
Here is the newspaper article the governor mentioned:
Minority Prison Inmates Skew Local Populations as States Redistrict
by Jonathan Tilove, Newhouse News Service
March 12, 2002
The inmates at Attica prison in western New York state are represented in
Albany by state Sen. Dale Volker, a conservative Republican who says it's a good
thing his captive constituents can't vote, because if they could, "They would never
vote for me."
Even so, the very presence of the more than 11,000 inmates at Attica and
seven other correctional facilities in Volker's vast rural district buttresses his
incumbency as New York redraws its legislative and congressional lines in
accordance with the 2000 Census.
Prisons can be a coveted prize in this process, swelling a district's population
with constituents who cannot vote. Most of America's huge prison population is
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black or brown, and many of America's prisons are located in very white rural
areas....
"They don't pay taxes, they don't have the right to vote, there is no reason to
count them," said Nathan Peters Jr., a longtime Gulf County [Florida] commissioner
who lives in Port St. Joe....
Allowing white, rural districts to claim urban black prisoners as residents for
purposes of representation resembles the old three-fifths clause (of the Constitution)
that allowed the South extra representation for its slaves -- extra representation that
kept the North from abolishing slavery long before the Civil War," said Peter Wagner,
who has researched the issue as a law student at Western New England College in
Springfield, Mass., and as a founder of the Prison Policy Initiative. The initiative
analyzes prison issues and advocates reforms.
As a case study, Wagner looked at New York. Since 1982, all new prisons
there have been built upstate. Almost half the state's prisons are in the state Senate
districts of four upstate Republicans who, if they could not count inmates, would
have to stretch their district lines to encompass more people, setting in motion a
ripple effect that eventually would reduce the Republican electorate in competitive
districts closer to New York City....
Even as Wagner studied the issue in New York, Taren Stinebrickner-Kauffman,
a Duke University math major, independently researched the same question,
examining data in Florida.... Stinebrickner-Kauffman found that Gulf County,
population 13,332 and solid Bush country, had sent only 81 home folks to prison, but
had prisons housing 2,574 inmates. The entire 7th state representative district, of
which Gulf County is a part, has nine prisons or work camps and 8,443 inmates
better than 5 percent of its total population....
Not everyone in Gulf County was happy with the decision to ignore the prison
population. Commissioner Billy E. Traylor, whose district includes the prison, wanted
inmates counted. He said the opposition was led by Commissioner Peters, the only
black on the five-member commission. Traylor said Peters didn't want the prison
numbers to swell Traylor's district to the point where some white voters would spill
over into his own.
Peters called that dead wrong, saying Traylor simply preferred keeping a
prison constituency to which he didn't have to answer....
In Evangeline Parish, La., attorney I. Jackson Burson went to court to block
counting the prison population in drawing the school board district for the little town
of Basile, where he went to high school. If prisoners were counted, many parents
who send their children to schools there would have been pushed out of that
district....
Nearby Iberville Parish did the same. Had it not, said Baton Rouge-based
redistricting consultant William Boone, it would have ended up with a school board
district with only two eligible voters, both Asian....
QUESTION II
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Ohios state constitution was amended in 1992 to provide that each state senator must run for reelection after the next redistricting. Ohio Const. Art. II,  4. That redistricting was just completed, when the
Governor signed Senate Bill 02-0459 into law.
The Ohio State Senate has 25 members, each elected from single-member districts.
Terms of office for state senators are normally four years in length and senators are elected to
staggered terms. Thus, 13 of the senators stood for reelection in the 2000 general election. Article II,  4 will
shorten those terms to two years. The terms of the remaining senators -- the 12 elected in 1998 -- will expire
this fall as well. In order to maintain the system of staggered terms, roughly half the senators elected in 2002
must therefore be assigned to four-year terms, while the other half must be assigned to two-year terms. Article
II,  4 provides the following assignment mechanisms:
Any re-elected senator whose prior term was shortened to two years by the occurrence of the
reapportionment year shall, after reapportionment, be assigned to serve a four-year term. Any
new senator and re-elected senator whose prior term was not shortened by the occurrence of
the reapportionment year shall, after reapportionment, be assigned to serve a two-year term. If
the number of senators assigned to serve a two-year term under the previous sentence exceeds
twelve, the number of such senators shall be reduced to twelve by random selection as
provided by law.
Jack Falstaff, a popular grassroots leader, comes to your office to seek advice. The Gadshill
community, where Falstaff lives, has experienced an explosion in its Hispanic population over the past decade,
shifting the population of the district from a largely Anglo one with a significant (30%) black minority, to one
that is now 45% Hispanic. Projections suggest that by 2005, the district will be more than 50% Hispanic.
Falstaff tells you that Gadshill is currently in Senate District 4, the district represented by Henry
Hotspur, a conservative Anglo Republican who was elected in 1998. Hispanic voters overwhelmingly
supported one of his two opponents, independent candidate Hal Prince. The Hispanic community feels that
neither the local Republican nor the local Democratic party is really responsive to their interests; each seems
interested only in preserving the seats of its current officeholders, none of whom is Hispanic. But because of
population and demographic shifts, Gadshill will be moved into Senate District 5, currently represented by
another conservative Anglo Republican, Earl Percy, who was elected in 2000. That district is now 40%
Hispanic and because it also contains rapidly growing suburbs, it is likely to remain about 40% Hispanic
throughout the decade.
Falstaff tells you that his friend Bardolph, legislative aide to Senator Quickly, a liberal Democrat,
overheard Hotspur and Percy talking in the cloakroom, and that they both agreed that Falstaff and his group
are a threat to our continued political viability and we need to hold them at bay as long as we can. Prince,
who lives in the Gadshill community, plans to run again, this time against Percy.
Falstaff asks for your assessment of whether the Gadshill voters can challenge Senate Bill 02-0459 and
Article II,  4 and what their strongest claims would be.
QUESTION III
In Smith v. Clark, 189 F. Supp.548 (S.D. Miss. 2002), a three-judge federal court held that a
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congressional redistricting plan adopted by a Mississippi state court was unconstitutional.
The Mississippi legislature had failed to redraw the states congressional districts, perhaps because it
was politically deadlocked and the states delegation had shrunk from five to four seats. So a group of
plaintiffs brought a lawsuit in state court under Article I,  2 of the U.S. Constitution and Article 44 of the
Mississippi Constitution (which requires that the state use single-member congressional districts of as equal a
population as practicable). The state court found that the legislature had failed to redistrict as required, and
implemented its own plan.
The state court plan is currently on appeal to the Mississippi Supreme Court in a different lawsuit. The
plaintiffs in Smith are not parties to that case; instead, they brought this lawsuit, seeking an injunction against
the Mississippi Secretary of State, forbidding him from using the districts ordered by the state court.
In Smith, the federal district court noted that the U.S. Constitution specifically provides in Article I, 
4, that The Times, Places and Manner of holding Elections for Senators and Representatives shall be
prescribed in each State by the Legislature thereof. (Emphasis supplied.) It found no enactment of the
Mississippi legislature that grants the Mississippi state courts the power to redistrict the State of Mississippi for
congressional elections:
[E]veryone agrees that the legislature has not enacted a redistricting plan. Instead of the
legislature, the [state] court has chosen the "Places and Manner" of conducting the
congressional elections in Mississippi. It would surely seem, on the basis of the plain
constitutional language, that the [state] court's order implementing its plan constitutes a
violation of Article I, Section 4.
The district court pointed to two U.S. Supreme Court cases that have discussed the meaning of
Legislature within the context of Article I,  4: Davis v. Hildebrant, 241 U.S. 565 (1916), and Smiley v.
Holm, 285 U.S. 355 (1932),
Davis v. Hildebrant concerned Ohio. The Ohio constitution was amended in 1912 to vest the
legislative power not only in the general assembly, but also in the people by way of popular referendum and
initiative. The General Assembly subsequently passed a congressional redistricting plan, which then was
disapproved by referendum. A lawsuit was brought in the Ohio Supreme Court, arguing that the referendum
power was not validly part of the legislative power of the state and that the use of the referendum in this case
violated Article I,  4. The Supreme Court of Ohio upheld the referendum procedure, noting that under the
reserved powers in the Tenth Amendment, the people of Ohio had expressly limited this legislative power by
reserving to themselves the power to reject any law by means of a popular referendum. The Supreme Court of
the United States agreed, finding that the referendum provision did not violate Article I. The Court held that as
a matter of Ohio constitutional law, the referendum was treated as part of the legislative power.
In Smiley v. Holm, the Minnesota governor vetoed a congressional redistricting plan passed by the
Minnesota legislature. The issue presented was whether a governor could veto a congressional redistricting
plan given Article I,  4's reference to the "Legislature" only. The Supreme Court found that the reference to
the "Legislature" did not invest the Legislature with "a particular authority ... the definition of which imports a
function different from that of lawgiver.... Rather, "the exercise of the authority must be in accordance with
the method the state has prescribed for legislative enactments." Therefore, because the laws of Minnesota
allowed for a gubernatorial veto of legislative enactments, it was proper for the Governor to veto the
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redistricting legislation.
Neither of these, it thought, provided any warrant for state courts to redistrict the state.
The defendants in Smith have decided to seek review in the United States Supreme Court. They come
to you and ask you for help in preparing their jurisdictional statement. As time is short, they are parcelling out
the work among a variety of specialists. They ask you to address the relevance for their case of three Supreme
Court opinions: Growe v. Emison (reprinted on page 324-28 of the casebook) and the per curiam and
concurring opinions in Bush v. Gore (reprinted on pages 281-91 of the casebook). They are well aware of the
fact that you probably have not previously read Growe. (It wasnt assigned reading in your Regulation of the
Political Process class, for example.) They tell you not to bother with technical questions of abstention or
deferral; they have a fed courts jock handling that aspect of their jurisdictional statement. So just
concentrate on the constitutional principle Growe extracts from Scott v. Germano, they say. And if youve
ever heard of the Anti-Injunction Act, dont worry; someone else is covering that. Finally, they have yet
another law-and-politics guy handling the Voting Rights Act aspects of the case. So ignore that as well.
****
QUESTION IV
THIS QUESTION HAS 4 SUBPARTS: A, B, C, and D. ANSWER THREE
Pick three of the following four pairs of cases. For each of the pairs you pick, describe the points of
doctrinal connection or disagreement. Do not bother telling me in detail about the facts or holdings of the
cases. Rather, I am interested in your assessment of whether the cases are consistent or contradictory, and why.
A.
Colegrove v. Green (casebook, page 142) and Pacific States Telephone & Telegraph Co. v.
Oregon (page 985)
B.
Gaffney v. Cummings (casebook, page 869) and Timmons v. Twin Cities Area New Party
(casebook, page 427)
C.
Bradley v. Perrodin (the City of Compton case we discussed in class) and Cook v. Gralike
(casebook, page 1026)
D.
Hunt v. Cromartie (casebook, page 946) and Whitcomb v. Chavis (casebook, page 673)
END OF EXAMINATION
Remember to write, and sign your examination number to, the statement "I accept and acknowledge
the Honor Code and to indicate the number of words contained in your answer.