58 Pages Posted: 11 May 2013 Last revised: 31 Jan 2015
Date Written: July 29, 2013
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 paper proposes a new, legally defensible coverage approach based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and 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Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the "outdated" formula invalidated by Shelby County.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 sub-state 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 sub-state 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.
Keywords: race, discrimination, prejudice, stereotypes, voter, voting, states, counties, Voting Rights Act, Section 2, Section 5, MRP
Suggested Citation: Suggested Citation
Elmendorf, Christopher S. and Spencer, Douglas M., The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County (July 29, 2013). 102 CAL. L. REV. ___ (2014, Forthcoming); UC Davis Legal Studies Research Paper No. 339. Available at SSRN: https://ssrn.com/abstract=2262954 or http://dx.doi.org/10.2139/ssrn.2262954
By J. Kousser