The Geography of Voter DiscriminationMRP Meets the VRA

Christopher S. ElmendorfProfessor of Law

University of California, Davis

Douglas M. SpencerAssociate Professor of LawUniversity of Connecticut

Can the tools of political science be used to solve important legal problems?

SHELBY COUNTY v. HOLDER (ORAL ARGUMENT, FEB. 27, 2013)

CHIEF JUSTICE ROBERTS:Is it the government's submission that the citizens in the South are more racist than citizens in the North? 

SOLICITOR GENERAL VERRILLI:It is not, and I do not know the answer to that, Your Honor…

The constitutional status of Section 5 of the Voting Rights Act

• Section 5 applies to so-called “covered jurisdictions” (mostly in Deep South), which must get federal government’s approval before changing election laws.

• Originally a temporary measure, but extended repeatedly, most recently in 2006 for another 25 years.

• Supreme Court in Shelby County v. Holder will determine whether Section 5 is a permissible exercise of Congress’s power to enforce 14th & 15th Amendments. Legal issue boils down to “congruence” between coverage formula and current racial discrimination in electoral process.

Our approach:

Measure individual attitudes that are correlated with voting behavior

SECTION 5 OF THE VOTING RIGHTS ACT IS ON CONSTITUTIONAL THIN ICE

Coverage formula for Section 5 is based primarily on election practices in 1965, and voter participation in 1968 and 1972.

SECTION 5 COVERAGE

The constitutional status of Section 2 of the Voting Rights Act

• Section 2 applies nationally; bars electoral arrangements “which result” in members of a protected class “having less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.” Most claims about vote dilution.

• Repeatedly narrowed by Supreme Court over the last 15 years, largely on basis of “constitutional avoidance” canon.

• Lower courts are muddling toward a solution: require plaintiffs to prove that their injury was “caused” by subjective racial discrimination on the part of the majority-group electorate or conventional state actors (government officials).

• But courts have no idea how to implement the so-called causation requirement, and they often ignore it in practice. Greiner (2008) argues that it is “probably not possible to articulate a coherent causal question in the Section 2 context.”

SECTION 2 IS ALSO VULNERABLE

Solving the Section 5 and Section 2 problems

Section 5

•Directly responsive to the Chief Justice’s questions at oral argument in Shelby County (and in earlier cases)

•Basis for congressional re-enactment in 2013?

Section 2

•Would not enable courts to answer the impossible question of whether minority-preferred candidates would have been elected “but for” majority-group discrimination, but would allow courts to create sensible presumptions about whether minority participation in the political process in defendant jurisdiction is more/less impaired by racial discrimination than is typical nationally.

NEEDED: A GEOGRAPHICALLY GRANULAR MEASURE OF VOTERS’ PROPENSITY TO DISCRIMINATE ON BASIS OF RACE

Behavioral versus attitudinal measures of propensity to discriminate

Behavioral (disparate treatment)

•E.g., Obama vs. Kerry vote share, Obama vs. Clinton preference in 2008 primary election (Ansolabehere et al. 2010, Jackman & Vavrek 2011)

•Difficulty: Is it race, or does Obama (or his opponent) differ from Kerry (or his opponent) in some other way that is valued differently in different parts of the country?

Attitudinal

•E.g., racial resentment, racial stereotyping, implicit bias

•Difficulties: measurement problems, political relevance, face validity

TWO APPROACHES TO MEASUIRNG PREJUDICE

DATA

We rely on the 2008 National Annenberg Election Survey (online) to measure nonblacks’ attitudes toward blacks

2008 National Annenberg Election Survey (NAES) online edition.• N = 19,325 non-black respondents• 5 wave survey (we use most recent answer)

PREJUDICE (P) =DIFFERENCE BETWEEN OWN-GROUP (O) AND BLACK (B) RATINGS

Intelligent < --- 0 to 100 --- > UnintelligentHardworking < --- 0 to 100 --- > LazyTrustworthy < --- 0 to 100 --- > Untrustworthy

MRP vs. DISAGGREGATION (average prejudice)

Is Section 5 of the VRA congruent to anti-black prejudice?

STATE-LEVEL PREJUDICE MEASURED IN THREE WAYS

Results are robust to various ways of aggregating prejudice

Joint distribution of covered states in the prejudice ranking, by mean prejudice (bootstrapped)

Joint distribution of covered states in the prejudice ranking, by proportion of nonblacks above nat’l average (bootstrapped)

Section 5 coverage is just the first-stage of our project

• County-level results (waiting on geocoding from Annenberg)

• Improving the MRP model (important for county-level results):

– Incorporate measure of overlap in black and own-group densities by income

– Measure of residential integration at fine scale (census block)

– Interaction terms (e.g., education & residential integration)

– Other ideas?

EXTENSIONS AND REFINEMENTS

Measure of prejudice is correlated with votes against Obama