Wisconsin

Of X-Rays, CT Scans, and Gerrymanders

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Progress in the detection of malignant redistricting.

I’m not a doctor, but I think this analogy is sound, and all the more so after today’s oral argument in Gill v. Whitford, the Wisconsin redistricting case in the Supreme Court.

Think of a disease that was undetectable before the development of medical imaging technologies, a type of brain tumor perhaps. It is still very much a disease even if undetectable.

After years of frustration, along comes the invention of a breakthrough medical technology that for the first time permits the detection of some of these tumors.  X-rays didn’t use to exist, but now they can be used to spot some malignant tumors.  And for a while, the only available imaging technology is an x-ray.

But then CT scans are invented, and MRIs.  They are improved forms of imagining, able to detect tumors more accurately than x-rays.  The disease is the same; just the way to detect the presence of the disease has improved.

I would suggest that in 2004, when the Supreme Court decided Vieth v. Jubelirer, not even the equivalent of x-rays existed to detect a malignant gerrymander.  The absence of appropriate detection techniques did not mean that gerrymanders were not a cancer on democracy.  On the contrary, all the Justices on the Court at the time recognized that they were.  There just was not an available tool by which to identify when redistricting had become pathological.

After Vieth, social scientists invented a new detection technology, called the “efficiency gap,” and used it to identify the pathology of Wisconsin’s redistricting map at issue in Gill.  The efficiency gap is far from a perfect detection device; that much is clear from the district court’s trial in Gill as well as various social science commentaries on efficiency gap’s technical properties.  It is like x-rays in this respect; imperfect, but still capable of detecting disease in some circumstances.

Since the development of the “efficiency gap,” social scientists have been hard at work on creating improved detection devices. The mean-median test, for example, and computer simulations.  These might be considered the CT scans and MRIs in the field of redistricting.  There has been incredibly rapid progress in this field, maybe even more rapid than with medical imaging. In both fields, there are likely to be even better techniques in future.  Still, all the while the definition of the disease to be detected remains constant.

What struck me from reading the transcript of today’s oral argument were two points. First, there remains virtually no dispute about the nature of the disease.  As the two attorneys defending Wisconsin’s map both conceded, if there were no issue of detection involved—if the malignant cancer were on the surface of the body politic, so to speak—there would be no doubt about its unconstitutionality.  In response to Justice Kennedy’s question (page 26) about an explicit state rule “that’s saying all legitimate factors must be used in a way to favor party X or party Y,” the Wisconsin legislature’s lawyer (page 27) said “Yes.  It would be unconstitutional,” and the state’s Solicitor General agreed (page 63).  Thus, the only issue is whether the current status of available detection devices permits identification of malignancies that are not on the surface in the same way.

Which leads to the second point about the oral argument.

There was considerable use of the term “outlier” to define a gerrymander that would be subject to judicial invalidation.  Justice Breyer (page 12) included the concept as a key component of his effort to articulate a judicially workable test: after identifying whether a map drawn by a partisan legislature was demonstrably skewed against a party, the trial court would ask: “is this an extreme outlier with respect to asymmetry?” Justice Kagan (page 49) asked the plaintiffs’ attorney: “Mr. Smith, are you suggesting that we should be looking for outliers or are you suggesting that we should be trying to filter out all manner of partisan consideration, or is it some place in between?” Mr. Smith’s response (page 50): “Your Honor, the word ‘outlier’ is probably an appropriate one.” Then, confirming this initial thought, he added: “Certainly, we don’t think … that all partisanship is unconstitutional.  What you need is a method by which the extreme gerrymander . . . can be identified and held unconstitutional.”

This focus on the concept of an “outlier” map seems to me important with respect to both understanding the relevant constitutional standard for judges to enforce as well as developing the measurement technique used to enforce the standard.  The very word “outlier” entails a distinction between norm and deviation.  That distinction makes sense in terms of the role that partisan politics is entitled to play in the redistricting process.  Normal partisanship is routine and constitutionally unobjectionable.  It poses no First Amendment problem.  It is a symptom of healthy, competitive democratic contestation between political parties in a free society governed by First Amendment values.  But just as normal cell growth in a human body can turn malignant, so too can normal partisan contestation metastasize into malignant gerrymandering.  The constitutional value at stake, rooted in First Amendment freedom, is to protect the norm from this kind of malignant deviation.

This basic conceptual distinction between norm and outlier serves to answer a major question raised by Chief Justice Roberts (and echoed by others, including Justice Gorsuch).  “It is just not, it seems, a palatable answer to say the ruling was based on the fact that EG [efficiency gap] was greater than 7 percent,” the Chief Justice observed. (Page 38.)  Then, he added, crucially: “That doesn’t sound like language in the Constitution.” His concern, obviously, is with the apparent arbitrariness of such an efficiency gap cutoff and, most significantly, how to link that cutoff with a governing constitutional principle.  His concern, it must be noted, is one reason why the efficiency gap is just an early-generation detection technique, like an x-ray, most likely to be superseded by the rapid development of improved detection techniques.

To answer the Chief Justice’s question, the judicial task—as required by First Amendment principles—is to distinguish between, on the one hand, normal partisan redistricting that is reflective of healthy democratic competition from, on the other hand, the pathology of extreme gerrymandering by which one party has subverted the electoral competition between differing political ideas.  That judicial task does not require identifying a cutoff in terms of an amount of partisan asymmetry in a map.  Instead, it requires identifying a map that is outside the norm of politically plausible maps for a given state.

How then to identify whether or not a map is an outlier in this way?  That is where the development of the latest detection techniques is relevant, and some of these advances have been made even after the trial of Gill itself. Without delving into all the technical details here, these latest developments use increased computing power to build upon a basic statistical insight, that of a so-called “normal distribution” in which a random sample of data will tend to cluster around a mean, the shape of a familiar “bell curve,” with the norm being the area under the curve, and the outliers being the two “tails” of the curve.  This technique can be used to detect whether a state’s actual map is within the norm, or instead is an outlier in the tail of the distribution.  This inquiry is not arbitrary in the way that a 7 percent cutoff in an efficiency gap score arguably is; rather, it is directly tied to the First Amendment distinction between norm and deviation in the operation of healthy partisan contestation.

As I’ve discussed previously, one of the amicus briefs in Gill that most lucidly elucidates the statistical ideas of norm and outlier was submitted by Eric Lander, a molecular biologist and founding director of the Broad Institute at MIT and Harvard.  It is noteworthy that this Lander brief was mentioned twice in today’s oral argument: once by Justice Breyer (page 12) as part of his invocation of the outlier concept; and the other time by the plaintiffs’ attorney, Paul Smith (page 56), agreeing that its distinction between norm and outlier will become central to the constitutional inquiry: “I think it will become part of how these cases are decided.”

When I first read the Lander brief, I thought it somewhat surprising that the most significant amicus brief, of the multitude submitted, might have been by a molecular biologist, rather than by someone specializing in politics.  But since it turns out that the task here is to distinguish between healthy and malignant redistricting, so that the cancer of extreme gerrymandering does not destroy the body politic, perhaps it is not surprising after all.

The Oral Argument in the Gerrymandering Case: Questions That Could Matter

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Gill v. Whitford looks to be a case for which oral argument might make a difference.

It is often said that oral arguments rarely make a difference to the outcome of a Supreme Court case, that the Justices’ minds are essentially made up before oral argument begins.

But Gill v. Whitford, the blockbuster partisan gerrymandering case from Wisconsin, looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.

There are two reasons for this.   First, Justice Kennedy—whose vote is widely understood as crucial to determining whether or not the Constitution is interpreted as containing a judicially enforceable constraint on the deliberately partisan manipulation of legislative districts—has made clear from his own previous opinions on the topic that he is genuinely torn between two opposing views: on the one hand, the need to identify some such constraint; and on the other, the inability to do so thus far. Even if Justice Kennedy goes into Tuesday’s oral argument tentatively leaning towards one side or the other (having read all the briefs filed in the case), there is a significant possibility that what is said during the argument could push him back in the opposite direction.   There is little doubt that even now, so far into the litigation of this issue, Justice Kennedy is still very much open to persuasion on this issue. It is, of course, the task of the Supreme Court advocate to be persuasive when and where the opportunity exists, and there may be moments in Tuesday’s argument—in responding to one of Justice Kennedy’s questions, or even one of another Justice’s—when the advocate can make a point that either dislodges a previous expectation based on the reading of the briefs or instead solidifies a tentative understanding.

The second reason is that, even after all the briefs (or maybe because of all of them), there is still much uncertain and unsettled about the litigation of monumental lawsuit and thus important points that the oral argument can clarify or pin down in ways that might be helpful to one side or the other. For example, how important is the so-called “standing” issue, upon which the state of Wisconsin places much emphasis in its briefs, but which received relatively less attention in the district court (and virtually no discussion in the media’s consideration of the case)? In other words, could this particular lawsuit fail not because of an invalid theory on the merits of the claim, but because the plaintiffs did not identify specific districts that were harmed as a result of the statewide gerrymander (and thus did not attempt to link specific plaintiffs with a district-specific injury, even if the unconstitutionality of the gerrymander had a statewide character)?

Another point of uncertainty concerns the relationship between (1) the degree to which a redistricting map is skewed in favor of one political party and (2) possible permissible explanations for that skew, like longstanding geographic and demographic circumstances that cause (for example) Democrats to cluster in cities while Republicans are more dispersed in exurban areas. If a state legislature under control of one political party draws a map with a significant skew in that party’s favor, is the state then obligated to show that it was unable to achieve its permissible redistricting objectives with any less of a skew? In its briefs, the state seems to understand the district court (and the plaintiffs) as having adopted this position, which would amount to something like a “necessity” or “least restrictive alternative” analysis in other areas of constitutional law (typically those subject to the so-called “strict scrutiny” standard of judicial review). For example, on page 14 of its reply brief, the state defines the relevant portion of plaintiffs’ test this way: “was it impossible for the Legislature to draw a map that scored better, while still complying with other requirements?” And again, continuing on to the very next page of the same reply brief, the state repeats: “Plaintiffs define their third element as whether ‘alternative district maps’ could have been drafted that have less partisan symmetry on some metric, while still complying with traditional redistricting principles and other requirements.”

But maybe the state’s understanding of this point is incorrect and, instead, the district court (and the plaintiffs) set forth a position that operates more like a “reasonable relationship” test that is also familiar in other areas of constitutional law (those governed by a lower standard of judicial review than “strict scrutiny”)? In other words, on this view a state’s map would be constitutionally valid, even if skewed in favor of the party that drew the map (and intentionally so), as long as the map bore some “reasonable relationship” to permissible redistricting criteria; there would be no constitutional requirement of being the least skewed map that satisfies those permissible criteria. So, which of these two different understandings of the district court’s (and plaintiff’s) position is correct? Is a remand necessary, or unnecessary, to clarify this important point? These questions are ones for which Tuesday’s oral argument potentially could be extremely significant.

Related to this uncertainty about the appropriate legal standard for when “geography justifies skew” (to put the point colloquially and somewhat over-simplistically) is the nature of the relevant evidence concerning this particular legal issue. There is much discussion, especially among multiple amicus briefs, concerning the possibility of using computer simulations to identify a distribution of possible maps that conform to the state’s permissible redistricting criteria. This distribution then can be used to determine whether the state’s actual map has a degree of partisan skew that is, or is not, an outlier compared to other possible maps compliant with the state’s permissible criteria. (I have previously discussed this statistical approach and the amicus briefs that emphasize them.)

But questions remain about the relationship of this kind of statistical evidence and this specific lawsuit over this particular Wisconsin map. Was any such statistical evidence based on computer simulations introduced in the district court’s trial of this case and, if not, what is the consequence? Is it part of a plaintiff’s burden in challenging a redistrict map as a partisan gerrymander, according to the appropriate constitutional standard to be identified in this litigation, to provide statistical evidence of this nature—in order to demonstrate the state’s map to be an outlier in its degree of partisan skew (compared, again, to a myriad of other possible maps that would achieve all of the state’s permissible redistricting goals at least as well or better)? Or is the state obligated to provide statistical evidence showing that its map is not such an outlier, at least if a plaintiff is able to present a prima facie case (using other types of evidence) that the state’s map has a significant partisan skew that is both intentional and unwarranted? Is a remand required for further consideration of how this particular type of statistical evidence should bear upon an evaluation of this particular map’s constitutionality?

These are just some of the many questions that could be raised in Tuesday’s oral argument and, depending upon how they are handled by the advocates on both sides, potentially could make a difference in the Court’s disposition of the pending appeal.

If I myself had the opportunity to frame a question for each side, here’s what it would be:

For the state: do you accept the premise, as accepted by all the opinions in Vieth, that an extreme partisan gerrymander is unconstitutional in principle, the obstacle simply being the ability to distinguish in practice extreme partisanship from run-of-the-mill partisanship, which is inevitably acceptable; and if you accept this premise, then if new statistical techniques do in fact enable us to distinguish extreme from run-of-the-mill partisanship in a way that we could not before, must you necessarily concede that the constitutional question is justiciable, with the only remaining inquiry being whether your map is or is not extreme according to the new statistical technique?

For the plaintiffs: to what extent is the district court’s position, and the position that you are advocating in this Court, the same or different from the position of some of your amici who appear to advocate an “outlier” test based on a statistical technique using computer simulations; insofar as the positions are different, what is this Court supposed to do with this particular case at this stage of the lawsuit (assuming we find the amici persuasive on this point); and if there is no difference, why is there so much discussion about the possibility of using these types of computer simulations and the role they can and should play in litigation of partisan gerrymandering claims?

We will soon know what questions the Justices actually ask, see how the advocates respond to them, and have at least an initial impression of how effective these responses appear—especially in their effort to convince Justice Kennedy one way or the other. And maybe there will even be something of a surprise: like the possibility that another Justice, like Chief Justice Roberts, might appear open to persuasion (on something like an “extreme outlier” test, for example) in a way that had not been previously anticipated.

Judge Easterbrook on the Voting Rights Act: Asking Good Questions, Making Bad Law

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By Christopher Elmendorf

Professor of Law, UC Davis School of Law

Judge Easterbrook’s opinion upholding Wisconsin’s voter ID requirement asks the right questions.

Earlier this week Rick Hasen blasted Judge Easterbrook’s opinion upholding Wisconsin’s voter ID requirement as cavalier with the facts and “heartless and dismissive” in tone. But in one respect the opinion is extremely helpful: it asks the right questions.

Three questions foregrounded by Easterbrook are particularly important to the future of the Voting Rights Act:

  • What limiting principle keeps the Section 2 “results test” from obligating every state to tinker with its election machinery until rates of voter participation by race have been equalized?
  • Insofar as Section 2 conditions state obligations on past or present societal discrimination, how does this square with the 14th and 15th Amendments, which by their terms reach only state action?
  • To what extent are the “fact” questions in Section 2 cases questions that district judges should try to answer on the basis of expert testimony, as opposed to questions of belief, faith, or policy that ought to be settled by appellate courts as a matter of law?

As this post will explain, Judge Easterbrook’s answers to these questions are not convincing. But unless proponents of robust voting rights protections come forth with better answers—answers that a conservative judge can appreciate—Easterbrook’s opinion is likely to prove a harbinger of things to come at the Supreme Court.

  1. Does the “results test” of Section 2 obligate states to adjust their election rules so as to equalize rates of voter participation across racial groups?

For Judge Easterbrook this question is rhetorical. An affirmative answer would be “implausible,” he says. Perhaps more to the point, but unstated: an affirmative answer would make Section 2 a powerful voting wars weapon for the Democratic Party. This much conservative jurists are likely to resist.

But what limiting principle would permit a court to strike down Wisconsin’s voter ID law, or Ohio’s or North Carolina’s recent rollbacks of early voting and same-day registration, without also compelling states to adopt every feasible election administration reform that would tend to equalize political participation across racial groups?

Ruling in the Ohio and North Carolina cases, liberal panels of the Sixth and Fourth Circuits suggested that the reach of Section 2 depends on “social and historical conditions.” The argument, in a nutshell, is that blacks and Latinos faced substantial disparate-treatment discrimination in the past; that some societal discrimination continues in the present day; that the lower socioeconomic status of blacks and Latinos is due in part to such discrimination; and that Section 2 therefore obligates the states to remove any barrier to voting which in practice limits participation by low-SES voters relative to high-SES voters. This argument, though plausible as a matter of statutory construction, is less a limiting principle than a principled basis for no limits. There is a history of discrimination against racial minorities almost everywhere.

Judge Easterbrook offered a different and severely limiting principle: Racial inequalities in rates of voter participation violate the results test only if the state has made registration and voting very difficult for a class of citizens, defined by race or color, that is under-represented in the voter turnout statistics.

Easterbrook’s rule is dubious as a matter of statutory construction and ironic to boot. His rule would make the Section 2 redundant with the equal protection clause in election administration cases. Yet when Congress enacted the Section 2 results test, Congress was responding to a Supreme Court decision that read equal protection too narrowly. The whole point of the results test was to sweep more broadly, to provide a cause of action where minorities have formally equal opportunities to participate but too little “voting strength” in practice. It is also clear that the enacting Congress saw racial disparities in voter participation as a Section 2 problem, at least where there’s a pattern of official and societal discrimination.

So if Easterbrook’s limit is bad, and that of the Fourth and Sixth Circuits illusory (though principled), what else might do the job? One possibility is to treat Section 2 as reaching even minor voting barriers with a racially disparate impact, insofar as plaintiffs show that it is at least “significantly likely”—a relaxed evidentiary standard—that the voting requirements at issue (1) were enacted to diminish the number of votes cast by the racial minority, or (2) enable or encourage disparate-treatment discrimination by front-line election administrators, such a poll workers. Section 2 could also reach voting requirements that give electoral effect—via impacts on voter participation—to (3) disparate-treatment discrimination by state actors outside of the electoral realm (e.g. school or prison administrators); or even (4) discrimination in the larger society. However, if the significant likelihood test is to serve as a limit in practice, plaintiffs whose claims are predicated on societal discrimination should probably be expected to differentiate conditions in the defendant jurisdiction from typical conditions elsewhere.

I am not sure how the Wisconsin voter ID case would come out under this approach, but North Carolina’s rollback of same-day registration would clearly be vulnerable. In the latter case, the district court indicated that the question of discriminatory intent under the equal protection clause was close. A factual showing that almost establishes discriminatory intent under the equal protection clause should suffice to establish a “significant likelihood” of subjective discrimination for purposes of Section 2.

  1. Whither state action? 

Objecting to “social and historical conditions” arguments, Judge Easterbrook wrote that Section 2 cannot be treated as a remedy for societal discrimination because societal discrimination does not violate the Constitution. That societal discrimination is beyond the Constitution’s ken (for want of “state action”) is very well established as a general matter. But might voting be different?

Certainly there are some hints that it is. As Ellen Katz has shown, the Waite Court, which rolled back the First Reconstruction in the late 19th century, pointedly sidestepped the question of whether Congress could use its enforcement power under the 15th Amendment to remedy societal discrimination that hinders minority political participation.

In the 1950s, the Supreme Court found state action in racially exclusionary straw poll conducted by a private political club. In the 1970s, the Supreme Court emphasized societal discrimination as it developed racial vote-dilution doctrine under the equal protection clause.

The Court later abandoned the racial vote dilution jurisprudence of the 1970s, but Congress in the 1982 amendments to the VRA provided a statutory remedy for the same injury. And, importantly, conservative judges in subsequent vote dilution cases have argued that there is no constitutional problem with the 1982 amendments so long as plaintiffs must show that white voters discriminate against minority candidates on the basis of the candidates’ race. Seemingly private discrimination by voters stands in for state action. Elsewhere I have argued that this apparent exception to the state-action requirement is no exception at all, once one recognizes that to put in office persons who wield the coercive power of the state is to perform a “public function.”

“Social and historical conditions” may also be relevant to a Section 2 claim not because societal discrimination can violate the 14th or 15th Amendments when it touches the right to vote, but because societal discrimination can create political incentives for elected officials to restrict voting by members of a racial group. If this argument is correct, it answers a question that has perplexed Easterbrook and other judges: Is racially polarized voting germane to “vote denial” claims under Section 2? Many courts and commenters have deemed it irrelevant. But if societal conditions matter for Section 2 because of the incentives they create for legislators and their agents, then racially polarized voting is centrally important to vote denial as well as vote dilution claims.

  1. Distinguishing “adjudicative” from “legislative” facts?

A few years ago, the Supreme Court upheld Indiana’s photo-ID requirement for voting on the theory that it promotes “public confidence” in the electoral process. Plaintiffs in the Wisconsin voter-ID case said this argument is now a loser because subsequent empirical research found no relationship between voter ID laws and citizens’ confidence that their ballots will be counted. Judge Easterbrook held that the new findings are irrelevant because the relationship between voter ID and public confidence is a “legislative fact,” rather than a fact to be determined on the record in a particular case.

The idea here is that some putative facts are essentially just matters of belief. These “facts” must be settled as a matter of law, or else the law itself will consist of nothing more than district judges applying their personal and quite divergent prior beliefs.

I think Easterbrook was wrong that voter ID / public confidence is such a fact. Questions about causation can in principle be answered with statistics when the question concerns some discrete intervention in the world, and there is a way to estimate counterfactual outcomes—e.g., voter confidence in the absence of the ID requirement.

However, many facts of central importance to Section 2 are quintessentially legislative. Here’s an example: to what extent are current socioeconomic disparities among racial groups due to disparate-treatment discrimination? The Democratic district judge in the Wisconsin voter ID case credited an expert who said race discrimination is mostly to blame. In another case, a Republican judge might rely on conservative scholars who maintain that socio-economic disparities are largely due to differences in human capital, which in turn (some conservatives say) are substantially unrelated to race discrimination.

If we’re going to be honest, we must admit that the accounting-for-socioeconomic-disparities question is one that statistics—and hence experts—probably cannot answer. I see no way to estimate the relevant counterfactual, i.e., the pattern of socioeconomic outcomes that would be observed today if the United States had had no history of race discrimination. Furthermore, judicial answers to the accounting-for-socioeconomic-disparities question implicitly depend on normative judgments about the relevance of discrimination that took places generations ago. Justice Roberts’s famous pronouncement, “Things have changed in the South,” is as much as normative as factual.

This is not to say that all questions about race discrimination and its consequences are unanswerable. Experts can make across-state and over-time comparisons of racial attitudes, for example, and of the “treatment effect” of race in experimental settings.

One could also argue that Section 2 delegates authority to district courts to find legislative facts, rather than reserving these questions to the courts of appeal. But however one comes down on this question, there can be little doubt that voting rights law would be much improved if judges paid a little more attention what can and cannot be learned from statistics. By asking courts to distinguish legislative from adjudicative facts, Judge Easterbrook has taken a small but potentially constructive step in this direction—even if the line he drew was misplaced.

A Comparison of North Carolina and Ohio (and Wisconsin)

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Main points: (1) Ohio’s elimination of Golden Week has some differences than NC’s elimination of same-day registration throughout all of early voting; and (2) NC’s reversion to a rule disqualifying out-of-precinct ballots has an outright disenfranchising effect lacking in Ohio’s case, but present in Wisconsin’s.

Of the three election administration cases that have made it to the U.S. Supreme Court in the past couple of weeks—Ohio’s, Wisconsin’s, and North Carolina’s—I find North Carolina’s the most difficult.  I can see the Court granting a stay, as it did in the Ohio case, because the Fourth Circuit made a late change in North Carolina’s voting procedures.  Indeed, the Fourth Circuit’s October 1 ruling, which reversed the district court’s denial of a preliminary injunction, came almost a month after the Ohio preliminary injunction, entered on September 4.  Given the Supreme Court’s previous admonition against such last-minute judicial disruption to a state’s voting procedures, the Fourth Circuit’s October 1 order would appear particularly vulnerable, and indeed Judge Motz (a Clinton appointee) dissented from the Fourth Circuit’s ruling essentially because of this timing concern.

Like Judge Motz, however, I think the underlying merits of the case may be much trickier than the timing issue alone would suggest.  The underlying merits, at least has the case has developed to this point in its preliminary injunction posture, primarily concern the application of section 2 of the Voting Rights Act to recent changes in a state’s voting procedures.  The two rule changes that the Fourth Circuit preliminarily enjoined were (1) the elimination of “same day registration” during North Carolina’s early voting period and (2) the reinstatement of a requirement that a provisional ballot be cast in the voter’s correct precinct in order for any vote on the ballot to count.

The first rule change makes the North Carolina case appear, at least superficially, similar to the Ohio case.  Ohio eliminated “Golden Week,” a five-day period at the beginning of early voting in the state during which it had been possible to register and vote at the same time.  Despite this superficial similarity, however, there are factual differences that ultimately may prove important on the merits.  Ohio’s “Golden Week” was an anomaly in the context of that state’s overall early voting process; during the bulk of early voting pre-registration had been required.  Moreover, this anomaly had been the result of an accidental legislative oversight: the five-day overlap between the end of registration and the availability of absentee ballots had existed when absentee voting in Ohio had been a very limited, excuse-based system; then, when Ohio moved to no-excuse absentee voting and decided to permit in-person absentee voting (which the world calls “early voting”), Ohio suddenly realized that it had inadvertently created a “Golden Week” during which was possible to register and in-person absentee vote, without an excuse, at the same time.  By contrast, North Carolina had made a deliberate policy choice to permit same-day registration throughout its early voting period.  Thus, Ohio’s subsequent legislative decision to jettison an inadvertent anomaly, so that its entire early voting period is consistent with the state’s overall policy goals concerning registration and early voting, is arguably a very different kind of statutory correction than North Carolina’s decision to reverse course on the entirety of its same-day registration policy.

There is also the issue of partisanship.  As I discussed previously, Ohio’s new early voting rules are derived largely from a recommendation of the bipartisan Ohio Association of Election Officials.  Although my Moritz colleague Dan Tokaji sees the structure of OAEO as flawed insofar as it over-represents low-population rural counties and under-represents high-population urban counties, it nonetheless is a bipartisan body that negates the charge that Ohio’s new rules are a thoroughly partisan manipulation of the electoral process designed to rig the rules in one party’s favor.  By contrast, I did not see any evidence in the North Carolina case to inoculate that state from the charge of blatant partisanship in manipulation of the voting rules.

The second rule change in North Carolina, concerning out-of-precinct ballots, presents the risk of outright disenfranchisement not associated with an elimination of same-day registration.  Under the new North Carolina rules, any ballot cast in the wrong precinct will not count.  Period.  There is no way for the voter to validate any portion of that ballot, even with respect to statewide or countywide offices for which all precincts are eligible to participate in the election.  Thus, a voter who mistakenly is told to vote a provisional ballot in the wrong precinct—it happens—will be disenfranchised with no remedy under state law.  By contrast, a voter who registers in advance of the registration deadline will be able to vote a ballot that counts, either during early voting or on Election Day.  Thus, the consequence of North Carolina’s rule change concerning out-of-precinct ballots is much more severe to any of the adjustments to early voting, either in North Carolina or Ohio.  In this respect, the disenfranchising consequence of the new disqualification of out-of-precinct ballots in North Carolina makes that case more like the Wisconsin one concerning the addition of a new stringent voter identification requirement.

This fact alone does not make the new disqualification of out-of-precinct ballots in North Carolina a violation of section 2 of the Voting Rights Act—just like a new voter ID rule does not automatically violate section 2.  But insofar as the new rule causes a disproportionate disenfranchisement of minority voters, the stakes are obviously much higher and directly implicate the primary concerns of the Voting Rights Act.  The North Carolina case thus raises a key question about the proper interpretation of section 2.   What more (if anything), beyond the discriminatory effect of disenfranchising more minority than nonminority voters, must a plaintiff show in order to prevail on a section two “vote denial” claim?

North Carolina is hardly the only state that disqualifies out-of-precinct provisional ballots.  Florida also does, as does Ohio (except to the extent constrained by Sixth Circuit precedent concerning “right church, wrong pew” ballots cast in the correct multi-precinct polling location).  But, unlike North Carolina, neither Florida nor Ohio enacted a law that permitted the counting of out-of-precinct ballots before reverting back to a practice of disqualifying them.  Assuming that Florida’s and Ohio’s rules disproportionally disenfranchise minority voters as much as North Carolina’s, are they equally unlawful under section 2 as North Carolina’s?  Or is the reversionary rule change a relevant factor in calculating liability under section two?  If so, then does not section 2—at least to that extent incorporate a kind of anti-retrogression principle—despite protests to the contrary?

These are vexing questions for which there are no obvious answers, which is why I find the North Carolina case particularly difficult on the merits.  It raises, to my mind, profoundly important questions about the proper interpretation of section 2, a hugely significant statute to our national identity as a democracy committed to equal voting rights.   It may be surprising that such an iconic statute about to celebrate its fiftieth birthday lacks a clear standard for determining liability under its most important provision.  Yet that is the situation today.  It will be necessary for the Supreme Court to clarify the standard, either in the North Carolina case or one like it.

But the time for that clarification is still down the road a bit.  Not now, during the flurry of these emergency stay petitions.  Meanwhile, like many others, I will watch the development of the records in the pending cases, including North Carolina’s, as well as the development of the briefing on the merits of what that clarifying standard should be.  Maybe any state that disqualifies out-of-precincts ballots violates section two if that disqualification causes disproportional disenfranchisement of minority voters, and it does not matter whether this disqualification rule is a new, old, or reversionary law?  Maybe this kind of discriminatory disenfranchisement violates section 2 only when it is the consequence of new or reversionary laws, but longstanding unchanged rules are somehow protected from section 2 liability, at least absent some showing of racially discriminatory intent?   Or maybe liability hinges in part on the extent to which a state has been a bad actor in the past, so that North Carolina’s history of racial discrimination will condemn current practices for which there is no showing of intentional discrimination?  If so, then the same disproportional disenfranchisement of minority voters may be permissible under section two in a northern state, like Massachusetts or Michigan, which lacks the same segregationist history as a southern state, like Florida or North Carolina.  Although this interpretative approach would seem to run counter to the Court’s recent decision in Shelby County, perhaps it is an option available under section 2 even though it was not under sections 4 and 5.

North Carolina might end up being decided as a special case insofar as it involves a package of rule changes that should be evaluated as a package rather than as a series of separate changes.  The “totality of circumstances” inquiry that Congress explicitly built into section 2 would seem to permit, and perhaps even require, that sort of analysis.  But at this juncture, I wish to leave my own thinking on this case as undecided and tentative, while watching how it and the others unfold.