YALE LAW SCHOOL
1992 Fall Term Examination
LAW AND POLITICAL PARTICIPATION
Ms. Karlan
INSTRUCTIONS: This is a three-hour examination. It consists of three equally weighted parts.
I recommend not writing anything until you have read the entire examination. Do not spend
a disproportionate amount of time on any one questions. Please indicate clearly which part and
which question you are answering.
If you are writing your answers by hand, please write in ink on one side of the page only.
Charles Dickens was paid by the word. Your reward is not being determined in that
fashion. Thus, resist the temptation to tell me things you know that are not directly relevant to the
questions you have been asked.
This examination is self-scheduled. Thus you may not discuss the examination with
anyone, either in or not in the class, until the end of the examination period. You must turn in the
examination with your answers and you may not keep a copy of the examination questions.
During the examination, you may look at only the required readings for the course and your
own personally prepared notes. You may not use secondary materials.
Do not identify yourself by name anywhere on the examination. Instead, please use your
social security number or another identifying number as instructed by the person administering the
examination.
Good luck and have a good spring.
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PART I
Ralph Waldo Emerson once wrote that a foolish consistency in the hobgoblin of small
minds. Is voting rights law small-minded? Below are four pairs of decisions and/or legislative
actions. With regard to each pair, please (a) identify an inconsistency or potential tension in their
approaches and (b) to the extent you can, either resolve that tension or explain why you think it
cannot be resolved. This question calls on you to identify the salient points of difference between
the halves of each pair, not simply to describe the holdings.
A.
Richardson v. Ramirez and Hunter v. Underwood
B.
Giles v. Harris and Reynolds v. Sims
C.
City of Mobile v. Bolden and Davis v. Bandemer
D.The political boundaries on the left (from Gomillion v. Lightfoot) and those on the right (from
Wright v. Rockefeller)
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PART II
The following fact pattern forms the basis for five questions. They appear in boldface.
Answer all five. Questions A and E can be answered in no more than a bluebook page or so. The
other questions are somewhat more complex and may take several pages each.
Peyton County, Alabama, has a total population of 10,000. Sixty percent of the county's
population is white; the remainder is black. There are 7000 registered voters; 5000 (71 percent) are
white. Voters must register by party, and 80 percent of the registrants, including virtually all the
voters in majority-black precincts are Democrats.
The Peyton County Board of Education consists of five members, elected at large but from
residency subdistricts to staggered 5-year terms. The chairperson of the board has traditionally
(since at least 1900) been the board member in the final year of her term. The chairperson makes
all the day-to-day decisions about how to run the county school system.
Board of Education Elections
Residency
District
Total
Population
White
(%)
Black
(%)
1
2300
1800
500
2
2100
300
1800
3
1200
1100
100
4
2200
1200
1000
5
2200
1600
600
In 1988, as a result of dissension in the white community, Felicity Frank, a black
community activist, was elected in a six-way contest to a seat on the board of education from
Residency District 5. Accordingly, as of January 5, 1993, when the new board member takes
office, she will be the most senior member of the board.
Two of the board's members, Peter Pale and Larry LeBlanc, are quite upset at the prospect
of Frank's ascendency, since she supports sex education in the schools and changing the name of
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Peyton High School's athletics teams -- currently called the White Knights. By promising another
board member, Walter Waffle, that they will support his application for membership in the Peyton
County Club, they gain his support and pass a resolution, by a 3-2 vote, providing that beginning on
January 1, 1993, the chairperson of the board of education will be selected, by a majority vote, from
among the five board members without regard to seniority. They then vote, again by a margin of 32, that Pale should be the new chairperson.
A.
Jess Folks, a black person who lives in District 2, wants to challenge the electoral
system for electing the board of education. Does he have a valid claim based on Reynolds v.
Sims and one-person, one-vote?
B.
If Frank and her followers want to prevent Pale from taking over as chairperson of
the board what is their best legal strategy? How will the Board counter this claim, and how
persuasive will its defense be?
The Peyton County Commission, the county's governing board, consists of three members,
elected at large to concurrent four year terms (i.e., all three run at the same election). The current
members of the commission are Valerie Victor, Ron Ross, and Andy Arnold. They, and all their
predecessors back to Reconstruction, are white Democrats.
One day in the dentist's office, Victor is leafing through an old copy of U.S. Law Week and
stumbles across the Supreme Court's decision in Thornburg v. Gingles. She reads on, with a
sinking feeling. At the next commission meeting she informs the other two commissioners that
their election scheme is probably illegal under section 2 of the Voting Right Act of 1965. They
agree, and Victor and Arnold, over Ross' strenuous objection, pass Resolution No. 92-02, dividing
the county into three districts with the following population characteristics:
White
Population
Black
Population
Howes Bayou 3400
100
3300
Sherry Heights 3200
2900
300
Roodie Valley 3400
3000
400
District
Total
Population
It will probably not surprise you that the districts were drawn so that Victor's house is in the
Sherry Heights District, Arnold's House is in the Roodie Valley District, and Ross's house is in a
long finger that extends off the otherwise relatively rectangular Howes Bayou district. Each district
will elect one member of the county commission, starting with the 1993 general election when all
three seats are scheduled to be filled.
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The last three black candidates who have run for the county commission (all unsuccessfully)
have lived in the county's black middle-class enclave, located in the Sherry Heights District.
Although the new districting plan concentrates black residents in a single district, it
fragments Reagan Village, a retirement community of 2000 white residents (nearly all of them
Republican "snowbirds" from New Hampshire) among all three districts.
C.
Polly Titian, one of the previously unsuccessful black candidates for county
commission, wants to bring a section 2 lawsuit challenging the new districting scheme. What
sorts of claims can she bring and what facts will she need or want to prove in order to win?
D.
Stan South, one of the Republican residents of Reagan Village, wants to challenge the
fragmentation of the Village among the three districts. Is there a legal basis for his claim?
How strong is it?
E.
Cy Entific, another Republican voter, is also concerned about the plan. As a life-long
investor in the stock market, he has long believed in one-share, one-vote. Accordingly, he
writes to the Commission proposing that it adopt a cumulative voting plan under which each
voter would have three votes to cast and could cumulate them or cast them for more than one
candidate as he or she preferred. How would blacks and Republicans fare under such a
system?
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PART III
Derrick Bell, a noted civil rights attorney and scholar, has asserted that traditional analysis
of the Supreme Court's civil rights rulings "fails to encompass fully the role of the Court in
protecting existing arrangements through these liberating decisions." In short, although the Court
may seem to be engaged in liberal activism, its decisions are profoundly conservative because they
reinforce the current political order.
Is Bell right? This semester, we looked at three issues: the right to vote; racial vote dilution;
and apportionment, including political gerrymandering. Your discussion should focus on no more
than three or four specific cases or issues within these areas.
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