Appendix: Text and Precedent for Representational Adequacy Claims Under Fifty State Constitutions

This Appendix supplements the Article, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders in the print edition of the William & Mary Law Review

Administering Section 2 of the Voting Rights Act After Shelby County

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court\u27s evisceration of section 5. The proposed reformation of section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in section 2 cases; and second, that the courts have authority to regularize section 2 adjudication by creating rebuttable presumptions. Most section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases-each relying on data from a different set of elections-are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference and would make coalitional claims brought jointly by two or more minority groups much easier to litigate

Foreword: Theorizing Contemporary Legal Thought

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled Theorizing Contemporary Legal Thought. It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the loss of faith indicative of Contemporary Legal Thought

The Geography of Racial Stereotyping: Evidence and Implications for VRA ‘Preclearance’ After Shelby County

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the outdated formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within substate geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make substate coverage determinations to an administrative agency (along with other responsibilities for keeping the coverage formula up to date). Finally, we show that if Congress does not act, the courts could use our results to reestablish coverage in a number of states, entering much broader bail in remedies for constitutional violations than would otherwise be justified