[EL] “In Voting Rights Arguments, Chief Justice Misconstrued Census Data”

Samuel Bagenstos sambagen at umich.edu
Sat Mar 2 11:04:56 PST 2013

So the best way to characterize Totenberg and Galvin is that they're
responding to a debater's point with a debater's point?
On Mar 2, 2013 12:58 PM, "Derek Muller" <derek.muller at gmail.com> wrote:

> If I may, both Ms. Totenberg and Mr. Galvin are either intentionally
> misrepresenting Chief Justice Roberts's (and the lower court's dissenting
> opinion's) data, or they are unaware of an important distinction they've
> elided over.
> For Chief Justice Roberts (I think), the concern is the coverage formula.
> And the coverage formula was reauthorized in 2006. And the last available
> voter data was 2004. It's unsurprising, then, that the lower court's dissenting
> opinion<http://www.cadc.uscourts.gov/internet/opinions.nsf/D79C82694E572B4D85257A02004EC903/$file/11-5256-1374370.pdf>,
> at 11-14, look at the voting data from 2004. It specifically refers to this
> Census data<http://www.census.gov/hhes/www/socdemo/voting/publications/p20/2004/tables.html>,
> Table 4a.
> Within that table, one can see that the turnout rate for African-Americans
> in Mississippi in 2004 was 66.8%, MoE 5.2. In Massachusetts, it was 43.5%,
> MoE 9.6. So assuming one wants to stretch the MoE, the low end of MS would
> have been 61.6%, and the high end of MA would have been 53.1%. Ms.
> Totenberg's calculation to "factor in the margins of error at their
> extremes" would result in the same confidence that MA African-American
> turnout was worse than MS.
> As to the citizen voting-age population question, one can run a quick
> check in the MA data to see that it would rise from 43.5% to 46.5%, while
> MS would remain largely the same--and I'm fairly confident that even a
> change in the MoE would not put MA in a statistical range in which it would
> be better than MS.
> Now, this is important data because *it is 2004 data*, the data that
> Congress would have used (and, taking into account time and space, absent a
> DeLorean, *could* have used) when it reauthorized the coverage formula.
> Ms. Totenberg and Mr. Galvin use the 2010 Census data, which is not the
> data that Congress would have had at its disposal in reauthorization.
> Mr. Galvin "assumes" it is the 2010 data Chief Justice Roberts discusses,
> and is not terribly careful if he says the "only thing we could find" was
> the 2010 Census, or that "academics" at other institutions "could find no
> record," when the record *is in the lower court dissent itself*.
> Ms. Totenberg, to her credit, links to the lower court dissent--but then
> ignores the actual 2004 Census data cited, instead choosing to cite the
> 2010 Census data, which was not used in the lower court dissent (and which,
> I assume, was not cited by Chief Justice Roberts).
> Now, granted, I understand that one could argue that the question is too
> narrow, that citing solely the returns from a single election (i.e., 2004)
> is not enough to sink the coverage formula, that the effectiveness and
> turnout rates today are important in the Court's analysis, etc.
> But, these stories glibly rejecting a point Chief Justice Roberts made at
> oral argument by using a point he didn't make do not advance the
> conversation in any meaningful way.
> Derek T. Muller
> Associate Professor of Law
> Pepperdine University School of Law
> 24255 Pacific Coast Hwy.
> Malibu, CA 90263
> +1 310-506-7058
> SSRN Author Page: http://ssrn.com/author=464341
>  “In Voting Rights Arguments, Chief Justice Misconstrued Census Data”<http://electionlawblog.org/?p=47981>
>> Posted on March 2, 2013 9:33 am <http://electionlawblog.org/?p=47981> by Rick
>> Hasen <http://electionlawblog.org/?author=3>
>> Nina Totenberg reports<http://www.npr.org/blogs/itsallpolitics/2013/03/01/173276943/in-voting-rights-arguments-chief-justice-may-have-misconstrued-census-data>for NPR.
>> MORE<http://www.politico.com/blogs/under-the-radar/2013/03/massachusetts-official-slams-chief-justices-comments-158275.html>from Politico.
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D47981&title=%E2%80%9CIn%20Voting%20Rights%20Arguments%2C%20Chief%20Justice%20Misconstrued%20Census%20Data%E2%80%9D&description=>
>>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
>> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
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