VOTING RIGHTS LAW
Law 387, Spring Semester 2010
George Washington University Law School
Mondays, 3:50-5:50 p.m.
Room E-112
Steve Pershing
(202) 974-6392 (w)
(202) 543-0891 (h)
spershing@ucdc.edu
Peyton McCrary
(202) 307-6263 (w)
(703) 547-6278 (h)
peyton.mccrary@usdoj.gov
SYLLABUS
Course summary: Our subject is the constitutional and statutory law of voting
rights in the United States. We study major decisions on apportionment, political
participation, and race as an issue in representation. Much of the material is on the
Voting Rights Act of 1965: minority vote dilution litigation under Section 2,
federal review of voting procedures under Section 5 (including Congress’
reauthorization of those procedures in 2006), and recent constitutional challenges
to voting rights remedies. We touch on partisan gerrymandering and
developments in the law following the disputed 2000 election. Constitutional
issues are prominent throughout, but the course focuses on the subject matter
current voting rights lawyers need to know. We leave campaign finance and First
Amendment election issues to their own course, Law 419 (Prof. Noble).
Materials: Our required text is Samuel Issacharoff, Pamela S. Karlan, and Richard
H. Pildes, The Law of Democracy: Legal Structure of the Political Process
(Foundation Press, 3d ed. 2007 & supp. 2009). Secondary readings may
occasionally be handed out in class and/or posted with our course materials on the
Law School’s web portal. On reserve in the library are some excellent materials
from the vast literature on voting rights that we hope will give you a fuller sense
of the subject.
Grading: Grades will be based on an open-book final examination. Past exams
are on the Law School’s web portal. We reserve the discretion to raise or lower a
grade by one step for class participation (e.g., B+ to A- or vice versa) based on
your attendance, demonstrated understanding of the assigned reading, and
meaningful contribution to class discussion. We will have an “on-deck” system,
but that should not preclude your enthusiastic participation in all class
discussions.
Your instructors: We are members of the Law School’s adjunct faculty. From
1996 until 2005 Prof. Pershing was a lawyer in the Voting Section, Civil Rights
Division, U.S. Department of Justice; thereafter he spent four years as senior
counsel at the Center for Constitutional Litigation, a public interest law firm here
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in Washington, and is now director of the UCDC Law Program, the Washington
semester program for law students from UC Berkeley, UCLA, UC Davis and UC
Irvine. He has taught at G.W. since 1999, and has also taught civil rights law at
the American University and William and Mary law schools. Prof. McCrary has
been staff historian at the Voting Section since 1990, and was a frequent expert
witness in voting rights cases in the 1980s. Dr. McCrary taught history for 20
years at the University of Minnesota, Vanderbilt, and the University of South
Alabama, and in 1998-99 was Lang Professor at Swarthmore College, where he
taught voting rights law and civil rights policy. We are teaching in our personal
capacities, and any views we express are not necessarily those of the Justice
Department, the Civil Rights Division, or the Voting Section. We will not have
office hours at the law school, but please feel free to speak to either of us before
or after class, or get in touch by phone or e-mail.
Assigned reading: The outline below gives all the reading this course requires.
The casebook is full of fascinating material that we wish we had time to cover,
and we encourage you to let your eye wander over as much of it as you like. The
most important cases we cover are listed below for your convenience—they are
from the U.S. Supreme Court unless otherwise noted—but the other cases in the
assigned reading, as well as the authors’ notes and questions, will often be just as
important as the listed cases to our discussion and to your understanding.
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WEEK 1 (January 4):
Introduction to the course and overview of the subject
Reading:
President Johnson’s statement to Congress proposing the Voting Rights Act, March 15,
1965 (posted on portal) (available at
www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650315.asp)
Joint Views of 12 Members of the Senate Judiciary Committee Relating to the Voting
Rights Act of 1965, S. Rep. No. 162 (Part 3), 89th Cong. 1st Sess. (1965), pp. 1-31
(on portal).
In class:
Film: From Eyes on the Prize (Blackside Productions/PBS 1986, re-aired
2006), Episode 5, “Bridge to Freedom,” about the genesis of the 1965
Voting Rights Act (transcript available on portal).
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WEEK 2 (January 11):
Race and the “Political Thicket”
Reading:
Casebook pp. 11-13, 65-88, 112-18, 210-14
Giles v. Harris
Smith v. Allwright
Colegrove v. Green
Gomillion v. Lightfoot
Questions:
1.
2.
3.
4.
What do the above cases tell us about the evolving role of the federal courts in
voting rights issues between 1900 and 1960?
To what degree do the Fourteenth and Fifteenth Amendments permit regulation of
private political activity in the name of restricting discriminatory “state action”?
What are vote denial and vote dilution? Which was each of these cases about?
In what ways was Gomillion a pivotal development?
January 18:
No Class (Martin Luther King Holiday)
WEEK 3 (January 25):
The Reapportionment Revolution: Adopting the One-Person, One-Vote Standard
Reading:
Casebook pp. 118-47, 161-70, 198-201, 824-29
Baker v. Carr
Reynolds v. Sims
Gray v. Sanders
Karcher v. Daggett
Questions:
1.
2.
3.
4.
What was really decided in Baker v. Carr? What philosophies or ideals of
representation does the decision embody? Are they consistent with one another?
Is malapportionment a type of vote dilution?
Is discriminatory intent a required element of proof in a one-person, one-vote
challenge to a districting plan?
Could the one-person, one-vote standard be invoked to challenge the Electoral
College or the apportionment of the U.S. Senate? Why or why not?
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WEEK 4 (February 1):
The Evolution of Preclearance Review Under Section 5 of the Voting Rights Act
Reading:
Casebook pp. 459-70, 486-96, 506-15, 521, 1233-41
Voting Rights Act of 1965 (as amended), Sections 2, 4, 5, and 14
South Carolina v. Katzenbach
Allen v. State Board of Elections
Beer v. United States
Note on the administrative preclearance process
Questions:
1.
2.
3.
4.
5.
On what basis did the Court in Katzenbach hold Section 5 constitutional?
Did Allen correctly interpret legislative intent on the scope of Section 5 coverage?
What are Section 5 enforcement and declaratory judgment actions, and what are
the differences between them in parties, forum, subject matter and remedy?
How does racial vote dilution differ, as a practical and a constitutional matter,
from the race-based physical denial of the opportunity to cast a ballot?
How did Beer change the Section 5 preclearance standard?
WEEK 5 (February 8):
Minority Vote Dilution Under the Constitution
Reading:
Casebook pp. 527-66
Whitcomb v. Chavis
White v. Regester
City of Mobile v. Bolden
Questions:
1.
2.
3.
How do you explain the difference in outcome between Whitcomb and Regester?
Did the constitutional standard for racial vote dilution claims in the 1970s include
an intent requirement?
How did Bolden alter that constitutional standard?
February 15:
No Class (Presidents’ Day)
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WEEK 6 (February 22):
The 1982 Amendment to Section 2: From Intent to Results
Reading:
Casebook pp. 561-68, 588-94, 1233-34 (Amended Section 2 of the Voting Rights Act )
Bolden v. City of Mobile, 542 F. Supp. 1050 (S.D. Ala. 1982) (opinion on remand)
The intent standard on trial: Bolden on remand
Legislative history of the 1982 amendments to the Voting Rights Act
Questions:
1.
2.
Why did Congress revise Section 2 in 1982?
Did the 1982 amendments simply reinstate the pre-Bolden constitutional standard
for racial vote dilution claims under the Constitution?
March 1:
No Class (Spring Break)
WEEK 7 (March 8):
The Significance of Thornburg v. Gingles
Reading:
Casebook pp. 595-639; Supp. pp. 77-80
Thornburg v. Gingles (pron. “Jingles”) and Notes
Bartlett v. Strickland
Questions:
1.
2.
3.
4.
How did Gingles affect the standard for racial vote dilution claims beyond the
Regester test?
What beyond the three Gingles preconditions is required to prove liability under
amended Section 2 in a redistricting case?
Are the Gingles preconditions required for non-redistricting claims under
amended Section 2?
How, if at all, has Bartlett changed the Gingles equation?
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WEEK 8 (March 15):
Cases Under the Results Test of Amended Section 2
Reading:
Casebook pp. 639-700
LULAC v. Clements
Holder v. Hall
Johnson v. De Grandy
Questions:
1.
2.
3.
What sort of evidence tends to prove or disprove racial polarization in voting
under Section 2, and how is it obtained?
Once racial polarization in voting is demonstrated, must a Section 2 claimant
prove it was caused by race?
How do liability and remedy interact under amended Section 2? How does the
availability of a viable remedy affect Section 2 liability standards or outcomes?
WEEK 9 (March 22):
Equal Protection Limits on Voting Rights Act Remedies
Reading:
Casebook pp. 712-61
United Jewish Organizations of Williamsburgh v. Carey (“UJO”)
Shaw v. Reno
Miller v. Johnson
Easley v. Cromartie
Questions:
1.
2.
3.
4.
What new constitutional right did Shaw v. Reno recognize?
How can Shaw and UJO be reconciled?
Did the Court improve or confuse the Shaw equal protection doctrine with its
decisions in Miller and later cases?
Is there a way out? Must representation be race-conscious? Must it be
geographical?
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WEEK 10 (March 29):
Partisan Gerrymanders
Reading:
Casebook pp. 821-24, 829-34, 841-84
Gaffney v. Cummings
Davis v. Bandemer
Vieth v. Jubelirer and Notes
Questions:
1.
2.
3.
4.
Is the bipartisan Gaffney-type political gerrymander consistent with democratic
principles? What about plans that protect particular incumbents personally,
beyond keeping together voters who prefer their party? Is a plan’s effect on third
parties important to your answer?
What do politically “competitive” districts and “safe” districts offer their voters?
Is there a degree of partisan political manipulation of districting that the
Constitution should condemn? If so, what degree, and what constitutional
provision?
To what degree can the districting process be depoliticized?
WEEK 11 (April 5):
Equal Protection After the 2000 Election
Reading:
Casebook pp. 1015-22, 1064-90, 1101-16; Supp. pp. 1-23
Bush v. Gore and Notes
Stewart v. Blackwell
Crawford v. Marion Co. Election Bd.
Questions:
1.
2.
3.
4.
Did Bush v. Gore recognize a new equal protection right? If so, whose is it and
what is its scope?
Is there an individual constitutional right to substantially equal error rates, or to
error rates lower than some threshold, in the reading or counting of ballots?
What Section 2 claims might be available in such cases, to whom, and on what
facts?
Under what circumstances might a voter identification requirement be vote denial
or vote dilution under Section 2, or a denial of equal protection? Could the
absence of voter identification requirements state an equal protection claim?
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WEEK 12 (April 12):
The Court Revises Section 5 by Interpretation
Reading:
Casebook pp. 497-505, 512-21, 764-89
Presley v. Etowah Co. Comm’n
Reno v. Bossier Parish School Board (“Bossier II”)
Georgia v. Ashcroft
Questions:
1.
2.
3.
What is the relationship between Beer (week 4) and Bossier II?
How did Georgia v. Ashcroft alter the Section 5 discriminatory effect standard?
How did the 2006 Section 5 reauthorization revise Section 5 to respond to Bossier
II and Georgia v. Ashcroft?
WEEK 13 (April 13) (Constructive Monday):
Are Sections 2 and 5 of the Voting Rights Act Constitutional?
Reading:
Casebook pp. 470-86, 700-11; Supp. pp. 65-74
Katzenbach v. Morgan
City of Rome v. United States
City of Boerne v. Flores
Tennessee v. Lane
Northwest Austin M.U.D. No. 1 v. Mukasey
Notes on the constitutionality of amended Section 2
Questions:
1.
2.
3.
4.
5.
To what degree, and with what specific evidence, did the factual record before
Congress in 2006 support extending Section 5 for 25 more years?
How important in deciding the constitutionality of a federal statute is the
evidentiary record Congress considered before passing the statute?
What evidence of unconstitutional behavior must Congress have before it to
justify the remedial measures it wishes to authorize or require in order to enforce
the Fourteenth or Fifteenth Amendments?
How would your answer to either of these questions as of 1965 or 1982 differ
from your answer as of today?
What considerations should guide the Court in determining whether the
reauthorized Section 5 is constitutional? The results test of amended Section 2?
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REVIEW SESSION: By class choice, April 14-18
FINAL EXAMINATION: 24-hour take-home exam any time during the exam period,
April 19-30
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