Author: Michael Pitts


The Texas Redistricting Case and the Likely Continued Erosion of the Section 5 Process

The Supreme Court has decided to take up Texas’ redistricting plan on an expedited briefing and argument schedule. Even though it’s not directly a case involving preclearance under Section 5 of the Voting Rights Act, functionally the Court’s decision will likely have significant implications for Section 5. While it’s never easy to predict what the Court might do, as I explain below, I think that ultimately the Court will find a way to continue down its recent path of decisions limiting the procedural protections afforded to minority voters by Section 5.

Boiled down to the essentials, the facts of the Texas case are relatively simple. Texas is a jurisdiction covered by Section 5 of the Voting Rights Act. So in order to implement any redistricting plan, Texas needs to go through the process of securing preclearance (or pre-approval) from the federal government—either from the Department of Justice (DOJ) or from a three-judge panel of the D.C. District Court where DOJ serves as defendant. DOJ had some issues with the substance of Texas’ congressional and State House plans, alleging that the plans were discriminatory in effect and purpose in their treatment of Latino voters. Texas sought preclearance of its plans by moving for summary judgment, but the D.C. District Court decided that DOJ had created material issues of fact that necessitated a trial.

The inability to secure Section 5 preclearance created a problem for the State. Texas’ existing plan could not be used because it’s a violation of the Equal Protection principal of one person, one vote, and Texas’ proposed plan could not be used because it did not have the requisite Section 5 preclearance. Yet Texas desperately needs a new redistricting plan to hold next year’s congressional elections—initially scheduled to commence with a primary in March but now, based on an agreement between the political parties as a result of this case, currently scheduled for April. Redistricting disputes like these go to a three-judge district court, with a direct appeal allowed to the Supreme Court. Recognizing the need to remedy a constitutional one person, one vote violation before the next election, a three-judge panel in the Western District of Texas ordered into effect an interim plan for the 2012 elections. Read More


Opt-Out Voting

In the area of election law, I’ve written plenty of articles on the subjects of voting rights and election administration aimed at influencing the courts, legislators, and executive branch officials. Occasionally, though, I’ll take academic license to write a more quirky, hopefully thought-provoking piece. For instance, I have published an article recommending that close elections be resolved by a coin flip rather than litigation.

Another of my quirky articles, titled Opt-Out Voting, will soon be appearing in an issue of the Hofstra Law Review. In Opt-Out Voting, I envision a different manner of casting ballots in elections. The current paradigm of elections is basically for a registered voter to go to the polling place (or get an absentee ballot) and then select the candidate he or she desires. In contrast, opt-out voting would randomly pre-select a candidate for the registered voter and then mail a ballot to the registered voter. The registered voter would then have the option of: (1) doing nothing and staying with his or her currently selected candidate; (2) switching his or her vote to a different candidate; or (3) switching his or her ballot to a vote for “None of the Above.”

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Arizona Free Enterprise and Lucas

So the Supreme Court issued another big campaign finance decision the other day.  In Arizona Free Enterprise, the Court struck down a system of public financing that had been adopted by Arizona voters in a 1998 referendum election following a disgusting episode of political corruption.  In essence, what the voters of Arizona chose to do was set up a system of public financing of campaigns and to provide a limited amount of extra funding to publicly financed candidates in order to prevent them from being outspent by candidates who chose not to enter the publicly financed system.

Maybe the summer heat has gone to my head, but, to me, Arizona Free Enterprise is reminiscent of one of the most interesting yet lesser-known of the cases from the Warren Court’s one person, one vote Redistricting Revolution of the 1960s: Lucas v. The Forty-Fourth General Assembly of the State of Colorado (1964).  The main connection is that there does not seem to be a decent animating structural theory as to why the Court should intervene to block a democracy-related referendum adopted by the electorate of the state.  Bear with me a moment as I make the case for a connection between the two decisions rendered more than forty-five years apart.

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Student Exam Reviews

One of the things that has always interested me is whether a student coming to review his or her final exam from last semester helps that student do better the next time around. I’ve recently crunched some preliminary numbers that would seem to indicate an exam review helps—at least for students who take my Civil Procedure class.

First, some context as to the nature of my class and exam. I teach Civil Procedure I and II to a little more than 90 first-year students. The students take an exam (half essay/half multiple choice) at the end of each semester. The topics tested are not cumulative; in other words, I don’t test about material from the first semester unless we’ve encountered that material again in the second semester. In essence, the key points are that I have the same students for consecutive semesters and I give them a very similar exam (in terms of format) at the conclusion of each semester. Read More


Advice for Writing in the First Year

Over at The Faculty Lounge, fellow election law expert and Florida State law professor Franita Tolson commented that new law professors often get advised not to worry about writing during their first year. She is a bit skeptical of that advice.  So am I.  I think a new professor should definitely get something into the publication pipeline during his or her first year in the academy.

The obvious problem for a first-year professor, though, is finding the time to write.  The demands of the classroom can be overwhelming.  Moreover, a first-year professor needs to acclimate to a new environment, including getting to know his or her colleagues. In short, it’s not easy to write much during the first year because there are other important and time-consuming activities in which a new law professor needs to engage.

So how should a new law professor structure his or her life in order to accomplish the goal of publishing during the first year?  Here’s my advice . . . Read More


One Person, One Vote in Mississippi: Maybe Next Year . . .

The decennial redistricting cycle always creates some interesting litigation. While it is still quite early in the cycle, one of the more interesting opinions issued thus far is Mississippi NAACP v. Barbour. Barbour involves the equal protection principle of one person, one vote that requires state legislative districts to have roughly equal population numbers.

Mercifully, the basic facts are fairly simple. Mississippi last redrew its district lines in 2002. In February of this year, the State received census data showing that its current state legislative districts clearly violate one person, one vote. Despite having this data, the Mississippi legislature adjourned without revising the legislative district lines. Mississippi has legislative elections scheduled for this year (a primary in August followed by a general election in November). For this reason, the Barbour plaintiffs rather sensibly went to the district court and asked for relief that would require the elections this year to be held from districts that complied with one person, one vote.

If you had presented me with this situation in a law school hypothetical, I would have said the answer would seem to be fairly clear: on these facts, Mississippi needs to have a redistricting plan that complies with one person, one vote before it holds elections this year. It should come as no surprise, then, that three federal judges think the exact opposite and have decided to allow Mississippi’s legislative elections to go forward based on a plan that everyone agrees violates one person, one vote. Read More


The Obama DOJ and the Voting Rights Act

Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.

As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.

One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.

In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.

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