Election Law Prof. Mayer, Fall 2008 THE RIGHT TO PARTICIPATE

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1 Electin Law Prf. Mayer, Fall 2008 THE RIGHT TO PARTICIPATE CATEGORY Gverning Statutes/Case Law Practical Cnsideratins The Minr v. Happersett (1874) Virginia Minr sught t Majr Themes: Cnstitutinal Fundatin (Katherine) vte even thugh Missuri nly allwed suffrage t men. Based her case n Amend. XIV, 1 Arguments: Text f the cnstitutin, riginalism Wh gets t participate Hw d they get t participate Wh gets t set the rules 11/4 (wmen were clearly citizens at the time f the Majr Applicatins Text: 1-18, ntes 3, 5, 6, 8, 25-28, ntes 1, 2, 5, 6. cnstitutin) and precedent, which says that wmen can be citizens. Hlding: States that althugh wmen were citizens at the time f the cnstitutin, they culd Redistricting Defective electins Plitical parties Mney in plitics nt vte. Cnstitutin Arguments: Art. 1, 2, cl. 1: direct electin f Textual: the language f the Cnstitutin punishes States fr denying men the right t vte, but desn t say anything abut wmen. Representatives Art. 1, 4, cl. 1: states default jurisdictin ver rules fr cngressinal electins Originalism: the practice at the time f adptin f Cnstitutin was nt t Art. 1, 5, cl. 1: Huse judge f its members electins allw wmen t vte. Precedential: ther curt decisins d nt acknwledge wman s right t vte. Cnstitutinal Structure: if the 14 th amendment was passed t prtect privileges and immunities including vting rights, then there wuld be n need fr the 15 th amendment granting vtes t certain peple. If they wanted t give suffrage t wmen, it wuld have said that. It tk 45 years t reverse this case with the 19 th amendment. Richardsn v. Ramirez (1974) CA cnstitutin barred vting by persns cnvicted f high r infamus crimes, interpreted as felnies. Ramirez, Lee, & Gill were cnvicts invking the equal prtectin clause. Hlding: Originalism at the time the 14 th amendment as passed, many states did nt permit felns t vte, and state cnstitutins excluded felns as well. Curt has apprved exclusin n a variety f factrs. Textual - 2 was enacted t punish states fr disenfranchising vters, nt felns. In additin r ther crime culd mean ther crime like rebellin. Nte: Can t vte in prisn in 48 states. 35 states say yu can t vte while yu are n parle (the rest f yur prisn sentence if yu are released early). 2 states bar fr life if cnvicted f a felny, 9 bar fr life w/ exceptins. Art. II, 1, cl. 2: States authrity ver selectin f presidential electrs. Barring Denial f Right t Vte On Accunt f: XV: race, clr, r previus servitude XIX: sex XXIV: failure t pay any pll tax r ther tax (federal electins nly) XXVI: age (if at least 18) The Mdern Cnstitutinal Framewrk (Sarah) 11/4 Text: 37-50, ntes 1, 2, 4, 6-10, 13 Lassiter v. Nrthamptn Cunty Bard f Electins (1959) Black citizen applied fr registratin as a vter and was denied by registrar because she refused t submit t a literacy test required by Nrth Carlina statute. Hlding: Curt uses ratinal relatinship standard, stating a State can cnsistently, with the 14 th and 17 th Amendments, apply a literacy test t all vters irrespective f race and clr. Cnstitutin Art. I, 2, cl. 1 Amend. XVII Equal Prtectin Levels f Scrutiny Ratinal Relatinship (default can be used fr citizenship, age, residency) Reasnably cnnected t

2 The Struggle fr Black Enfranchisement (Caitlin) 11/4 Text: 65-69, ntes 2, 3, 6, 7, 80-83, 83-88, nte 2. Curt explains the Cnstitutin des nt give a fundamental right t vte. Nte: strict scrutiny was nt used because n claim f racial discriminatin invlved. Harper v. Virginia State Bard f Electins (1966) Suits by Virginia residents t have pll tax declared uncnstitutinal. Hlding: Pll tax is uncnstitutinal because a State vilates the EPC when it makes affluence f the vter r payment f any fee an electral standard. Language implying that a fundamental right (vting) was impaired. Curt discusses wealth, nt race. Unclear whether ratinal r strict standard used. Duglas says he s using ratinal relatinship, but he s really using strict scrutiny. Dissent prmtes riginalist arguments. Kramer v. Unin Free Schl District N. 15 (1969) Statute limited the right t vte in certain schl district electins t residents wh were therwise eligible t vte in state and federal electins if they als either 1) wned r leased taxable real prperty within the district, r 2) were parents r had custdy f children enrlled in the lcal public schls. Hlding: Curt used strict scrutiny standard. The statute des nt have enugh precisin t justify denying the right t vte and excludes many interested peple. Language that a suspect classificatin was used. Hlt Civic Club v. City f Tuscalsa Curt used ratinal relatinship t uphld law barring citizens wh live utside municipal bundaries, but within plice jurisdictins frm vting in municipal electins. Illustrates cncerns f nn-residents. Giles v. Harris (1903)- Black man was nt allwed t register based n his clr. Vters registered befre 1902 were grandfathered in fr life under an easier standardthse seeking registratin pst-102 faced mre stringent requirements Hlding: The curt will nt intervene even in light f the 15 th Amendment. Basically says that there is nthing the curt can d. 1) Hlmes says that it is a Catch-22: a) If the system is invalid r fraudulent then the curt wuld have t give int its uncnstitutinality t allw black peple t register t vte; b) If it is cnstitutinal then the plaintiffs have n claim- and the curt has n jurisdictin. 2) Even if there is a claim, it is unenfrceable. It wuld be impssible t enfrce an rder saying register all the black vters Gmillin v. Lightft (1960)- A redistricting case in Tuskegee- the AL Act created a 28 sided district which essentially remved all black vters frm the city, while nt remving any white vters- denying the black residents the right t vte in municipal electins. Hlding: Because the nly purpse seems t be t disenfranchise black vters, the AL act vilates the 15 th amendment. States d nt have the pwer t d whatever they want with municipal crpratins regardless f cnsequences- especially if thse cnsequences are the denial f a federally Legitimate gvernment interest Intermediate Scrutiny (gender) Substantially furthers Imprtant gvernment interest Strict Scrutiny (race/ethnicity) Gvernment using a suspect classificatin Fundamental right invlved Gvernment can nly win by prving by what it is ding is narrwly tailred t achieve a cmpelling gvernment interest. Cnsideratins Is there any danger giving citizens, residents, 18+, and nn-felns the right t vte that cannt be denied? Majr issue is whether the SC can step when state vting prcedures are vilating the Cnstitutin- in particular the 15 th amendment. Obviusly changes ver time. Giles says n, but later is changed by Gmillin. Cnsideratins: The precedential value in Gmillin wuld have been much brader if they had used the 14 th amendment EPC instead f 15. Is Whitaker right? Is there really n denial f the 15 th because they still have the right t vte- just nt in the specific electin? Cnstitutin: Amend. XV

3 Vter Registratin & Participatin (Katherine) 11/4 Text: 90-94, nte 1, 6, 8, supplement 1-23, nte 1, 3 prtected right. Cncurrence by Whitaker: shuld have used the EPC. The right t vte (15 th ) is nt actually denied b/c they can still vte in electins, just nt Tuskegee electins. Hwever, the EPC was vilated by the act. Really a vte diluatin case they are lsing part f their right t vte. Griffin v. Rupas (7 th Cir. 2004) Plaintiffs were wrking mthers wh sued t get absentee ballts; equal prtectin argument saying discriminatin against wrking mthers, the hnest, and issues with the length f the ballt. Hlding: Curt says that the cnstitutin says this is a state issue, and there is an interest in cmbating vter fraud. Rules are necessary, & there is n evidence a grup is being targeted plaintiffs must seek change frm legislature. Crawfrd v. Marin Cty. Indiana enacted vter ID law requiring unexpired pht ID issued by the state r U.S. gvernment. Plaintiffs sued, arguing csts. State interest: electin mdernizatin, deterring vter fraud, & safeguarding plitical cnfidence. Curt breakdwn Stevens, Rberts, & Kennedy deemed it ratinal basis as applied. Scalia, Thmas, & Alit deemed it deferential nt as applied. Suter & Ginsburg advcated fr a balancing standard. Breyer believes plaintiffs have prven enugh, uncertain standard. Curt uphlds the law. Nte: Electin Administratin Vting ptins are inpersn electin day vting, absentee, in-persn early vting, & nly mail-in vting (Oregn). Vter registratin is state cntrlled except fr the VRA f 1964, the Natinal Vter Registratin Act f 1993, & the Help America Vte Act f Access t Plls Generally: Prhibiting classificatins Race, clr, previus servitude (15 th Amend. Gmillin) Sex (19 th Amend., verruling Minr) Age if 18 r lder (26 th Amend.) Prhibited barriers Pll taxes (14 th Amend. EPC (Harper); 24 th Amend.) Cmmunity f interest limits (Kramer) Literacy tests (VRA, nt 14 th Amend.) (Lassiter) Permitted barriers Cnvicted feln (Ramirez, Hunter) Residency, citizenship, being at least 18 (Kramer) Absentee ballt requirements vter expects t be absent frm hme cunty OR unable t vte because f physical incapacity, religius bservance, student elsewhere, r engaged in certain fficial electin r civic duties. THE REAPPORTIONMENT REVOLUTION CATEGORY Gverning Statutes/Case Law Practical Cnsideratins The Plitical Clegrve v. Green (1946) Three qualified vters in Majr Theme: Redistricting hw d yu get Thicket f Reapprtinment Illinis districts which have much larger ppulatins than ther districts brught suit t restrain the t participate? Ppulatin issues (apprtinment) (Sarah) 11/4 Text: , ntes 1-3, , ntes 2-3, , ntes 2- Gvernr, Secretary f State, etc. frm taking prceedings fr a Nvember electin. Hlding: Curt wn t enter the plitical thicket and says it des nt have cmpetence t hear the case. Nte: Sme cncerns t think abut: Districting justiciable under EPC (Baker, reversing Clegrve) Equality required fr bth huses f state legislatures althugh sme deviatin 4, , ntes 2,3,6, , Prudential limitatins n Curt s jurisdictin permitted based n a limited set f factrs (Reynlds, ntes 1, 3. Cncerns ver institutinal Lucas). cmpetence Equality required fr federal Administrability f remedies cngressinal districts under Availability f alternative institutins t remedy any apprtinment defects Art. I, 2 (with little deviatin permitted in practice) (Karcher) Dissent: Vilatin f EPC because sme peple s vtes are mre effective than thers and this is discriminatin. Baker v. Carr (1962) Hlding: TN s Apprtinment Usually, tw cnditins must be met fr the Reynlds r Lucas standards t apply: Standard fr ne persn, ne vte Must be elected bdy

4 Lcal Gvernance (Caitlin) 11/4 Text: , nte 1-2, , nte 4, , nte 1 Act is a vilatin f 14 th justiciable. Overruling Clegrve. Curt refers t Art. IV, 4 (GC) and Amend. XIV, 1. Discuss: Curt des nt use Guaranty Clause, but Amend. XIV, why? Dissenting judges feel GC shuld have been used. If GC used, wuld have been a plitical questin and, therefre, nn-justiciable. Reynlds v. Sims (1964) Qualified Alabama vters challenged state legislature apprtinments. Hlding: There is a vilatin f Amend. XIV t nt reapprtin. This is the standard tday State s need t be apprtined based n ppulatin with as little deviatin as pssible. One persn, ne vte standard tday Lucas v. The Frty-Furth General Assembly f the State f Clrad (1964) Ps challenging apprtinment plan n the grunds that it verrepresents the interests f smaller cunties relative t their ppulatin s vters in mre urban areas are disadvantaged. Hlding: Plan vilates EPC s is uncnstitutinal. Des nt matter that the plan was apprved by the electrate. Dissent: Says Amend. XIV des nt give the Curt this pwer because it nly bars plans that are nt ratinal and permit the systematic frustratin f the will f a majrity f the electrate f the Senate. Karcher v. Daggett (1983) Questin is whether apprtinment plan fr cngressinal district satisfies Art. I, 2 withut need fr further justificatin if the ppulatin f the largest district is less than 1% greater than the ppulatin f the smallest district. Hlding: Shwing required t justify ppulatin deviatins is flexible, depending n 1) the size f the deviatins, 2) the imprtance f the State s interests, 3) the cnsistency with which the plan as a whle reflects thse interests, and 4) the availability f alternatives that might substantially vindicate thse interests yet apprximate ppulatin equality mre clsely. See right bar practical cnsideratins. Avery v. Midland (1960) - held that ne persn/ ne vte standard has t apply even in lcal electins if the bdy was a unit f lcal gvernment with general respnsibility and pwer fr lcal affairs. Sailrs v. Bard f Educatin (1967) - Held that there was n requirement that the schl bard be elected s appintive systems didn t need their representatin t be distributed evenly. Hadley v. Junir Cllege District (1970) - The Kansas City schl district elected 50% f the ttal number f trustees, even thugh it cntained 60% f the schl age ppulatin. Hlding: the District had sufficiently general and imprtant gvernmental functins- and the functins have sufficient impact thrughut the district that the ne persn/ ne vte standard shuld be applied General gvernmental pwers/functins Karcher deals with an article I claim, nt an equal prtectin claim. Requirement t deviate frm abslute ppulatin equality: Must be ratinal relatinship in terms f deviatin Must be dne in gd faith Majr Theme: The ne persn/ ne vte standard develped in Reynlds applies t lcal electins if they exercise general gvernmental pwers Pwers must be general enugh Pwers must have sufficient impacti.e.: Cntrl f Budgets Salaries Cntracts Taxes Zning Singular cntrl ver an issue Recgnized Grunds fr departure frm ne persn/ ne vte standard: Electin f Judges

5 Bard f Estimate v. Mrris (1989) - The Bard f Estimates in NYC cnsisted f 3 citywide elected members, as well as elected presidents frm each f the 5 brughs. Hlding: The pwers f the Bard f Estimate are general enugh and have sufficient impact t require ne persn/ ne vte prtectin. Wells v. Edwards (1973) - Curt hlds that the electin f judges des nt require ne persn/ ne vte because Judges d nt represent. Ball v. James (1981) - Dealt with the electin f directrs f a large water reclamatin district in AZ. Vting eligibility is limited t landwners and apprtined accrding t hw much land a vter wns. Hlding: The vting scheme bears a reasnable relatinship t the statutry bjectives f the Water District- therefre ne persn/ ne vte isn t required. Basically, the pwers f the District are s limited and it has such a narrw purpse that there is n need t require it. Fumalar v. Chicag Bard f Educatin (Ill. 1990) - Dealt with the electin f the Lcal Schl Cuncils in the Chicag public schls- part f a system t decentralize the schl system. The issue is whether the EPC is vilated because registered vters withut schl age children get t vte fr nly 2 members, while parents get t vte fr 6. Hlding: Because the lcal schl cuncils perfrm a general gvernmental functin that affects the entire cmmunity the ne persn/ ne vte standard shuld apply. Otherwise the vting system dilutes the vtes f thse citizens wh d nt have schl aged children. Everyne is a taxpayer s they have a stake in the schls; financial burden falls n the entire cmmunity. Distinguish it frm Ball based n the imprtance f the wrk dne by the cuncils and the fact that the quality f the schls affects the cmmunity in general. Nt general enugh pwer. If nly certain grups f the ppulatin are effected, etc. Special purpse districts (bar assciatins, state fish and game cuncils If the ne persn/ ne vte standard is required and nt met then the vting system fr the lcal gvernmental bdy vilates the EPC. VOTING RIGHTS ACT SECTION 5 (PRE-CLEARANCE) CATEGORY Gverning Statutes/Case Law Practical Cnsideratins What is a Allen v. State Bd. Of Electins (1969) Vting Rights Act f 1965 Main Cvered Change (Katherine) 11/20 Text: , , nte 1, 3-5, , nte 1-2, 6. VRA 5 requires preclearance whenever a cvered jurisdictin shall enact r seek t administer any vting qualificatin r prerequisite t vting, r standard, practice, r prcedure with respect t vting different frm that in frce r effect n its cverage date. Substantive Prvisins: 2: Essentially restating the 15 th Amendment 4: Suspending tests r devices in cvered jurisdictins (as defined by 4(b)) 5: Requiring pre-clearance f changes t vting qualificatins r VRA 4(b), VRA 5 Changes at issue: Frm district t at-large electins (cunty supervisrs), frm elected t appinted (cunty sup. f educatin), tightening requirements fr independent candidates, req. electin judges t assist disabled but nt prcedures in cvered jurisdictins These cvered prvisins riginally had nly a five-

6 What Cnstitutes a Discriminatry Purpse r Effect (Sarah) 11/20 Text: , nte 1, 3, , nte 1, 3, 521, 525 nte 1. illiterate write-in vters and barring write-in labels. These cases are knwn as cverage lawsuits Plaintiffs are private individuals, acting essentially as private AGs. The defendants are cvered jurisdictins. Issue is 5 applicatin des it apply? & Vte dilutin issue Hlding: Ct stated that the cverage f 5 was t be given a brad interpretatin. Any change affecting vting, even thugh it appears t be minr r indirect, returns t a prir practice r prcedure, stensibly expands vting rights, r is designed t remve the elements that caused bjectin by the AG t a prir submitted change, is subject t the 5 review requirement. Justice Harlan cncurred in part and dissented in part, saying that the curt s cnstructin f 5 was extremely brad. He said that the first change, frm district t at-large electins, shuld nt be cvered. (Allen case). Presley v. Etwah Cunty Cmm n (1992) 11/1/64: The Etwah Cunty Cmmissin had 5 members elected at-large, a chairman and fur thers wh each cntrlled all f the rad equipment and funds fr ne f the fur districts in the cunty cnsent decree expanded the Cmmissin t six members each elected in single-member districts. Passed preclearnce by the AG. In 1987, the Cmmissin, withut seeking preclearance, passed a Cmmn Fund Resultin which altered the prir practice f allwing each cmmissiner full auth. t determine hw t spend funds allcated t his wn rad district. It was passed by fur hldver members f the cmmissin shrtly after the appellant, a black man, & anther new member were elected frm districts established by the cnsent decree. Issue: whether Etwah cunty had vilated 5 by failing t btain preclearance fr the changes. The curt held that neither the reslutin r the new system was a change with respect t vting cvered by 5. Still brad with changes affecting vting, but if it desn t then 5 desn t apply. Discriminatry Effect and the Cncept f Retrgressin Beer v. United States (1976) Apprtinment Plan II in New Orleans bjected t by Attrney General because it wuld almst inevitably have the effect f diluting the maximum ptential impact f the black vte. Hlding: When examining the change frm Plan I t Plan II, the reapprtinment actually enhances the psitin f racial minrities with respect t their effective exercise f the electral franchise. Therefre, it desn t have the effect f diluting r abridging the right t year term. They have been cntinually renewed, and are currently in effect until Other prvisins: Relating t federal examiners Pll taxes (Harper still making way thrugh curts) Enfrcement prvisins Cvered jurisdictins: Triggers DOJ test r device Census less than 50% registratin r turnut f eligible vters Original date was 11/1/1964 baseline t determine whether there were any changes fr the purpses f 5 Hw t d yu get t Participate? VRA Sectin 5 (Pre-clearance) Only applies t cvered jurisdictins (VRA 4(b)) Required fr change t Any vting qualificatin r prerequisite t vting, r standard, practice, r prcedure with respect t vting. Including reapprtinment

7 vte n accunt f race within the meaning f 5. Rests n a statutry reading that lks at whether the change, as ppsed t the standard, practice, r prcedure itself, has a discriminatry purpse r effect. This is a pre-clearance lawsuit. Gergia v. Ashcrft (2003) May nt be retrgressive if yu increase the number f minrity-influenced districts, even while decreasing representatin. Discriminatry Purpse Ren v. Bssier Parish Schl Bard (Bssier Parish II) (2000) Whether VRA 5 prhibits pre-clearance f a redistricting plan enacted with a discriminatry but nnretrgressive purpse? Hlding: Purpse prng f 5 cvers nly retrgressive dilutin. If the change abridges the right t vte relative t the status qu, preclearance is denied, and the status qu (hwever discriminatry it may be) remains in effect. Cngress disapprved f this decisin and enacted 2006 Amendments in respnse. unless drawn by federal curt (McDaniel; Branch) Candidate requirements, district change t at-large, elected t appinted fficials (Allen) Gvernment emplyee rules fr candidates (White) Nt required if change in elected fficials authrity (Presley) Objectinable (i.e. shuld be rejected) if: Retrgressive discriminatry effect (Beer) n electin f preferred candidate f chice (2006 Amendment) Any discriminatry purpse (2006) Amendment VRA Sectin 5 Original statute: des nt have the purpse and will nt have the effect f denying r abridging the right t vte n accunt f race r clr Amendments: (a) neither has the purpse nr will have the effect f denying r abridging the right t vte n accunt f race r clr. (b) Any [vting qualificatin r prcedure] that has the purpse f r will have the effect f diminishing the ability f any citizens f the United States n accunt f race r clr t elect their preferred candidates f chice denies r abridges the right t vte within the meaning f subsectin (a) f this sectin (d) The purpse f subsectin (b) f this sectin is t prtect the ability f such citizens t elect their preferred candidates f chice. 5 ffers tw paths t pre-clearance: Administrative mechanism invlving submissin t the Attrney General Declaratry judgment actin in the U.S. District Curt fr D.C. MAJORITY RULE & MINORITY VOTE DILUTION CATEGORY Gverning Statutes/Case Law Practical Cnsideratins Defining the Harm & Rise f the Intent Whitcmb v. Chavis: Dealing with multi-member districts in Marin Cunty, IN. Claims that the m-m districts invidiusly diluted the frce and effect f black vters and pr vters in In the ntes the Zimmer factrs are discussed. Basically say that purpse r effect are sufficient: Requirement Center Twnship - Lack f access t the prcess f

8 (Caitlin) 11/ Amendments t VRA Sectin 2 (Katherine) 11/20 - Hlding: There was n intent t discriminate against r dilute the minrity vte. The cmplaint was really abut the repeated lsses f demcratic candidates - There was n evidence f black vters being kept frm vting and n suggestin that multi=member vting scheme was set with the purpse f discriminating the minrity vte - Multi-member districts are nt per se uncnstitutinal. They can be challenged but the burden is n the challenger t shw that they perate t dilute r cancel the vting strength f the minrity. - Harln Opinin- says that the Curt is tired f their previus hldings which seemed t imply that multimember cnstituencies were uncnstitutinal. - Dissent: Multimember districts are uncnstitutinal if the district wuld minimize r eliminate the vting strength f a racial r plitical element: find that it is met here. (the same test/standard- a different result). White v. Register: case invlving Mexican Ppulatin in Texas - Hlding: the multi-member district is fund t have invidius discriminatin against cgnizable racial r ethnic grup. - Burden f Prf- actual evidence that the electins were nt equally pen t certain grups - Lk at the discriminatry histry in TX as relevant evidence. - Distinguished Whitcmb n histry f discriminatin there, and there als was an effective way fr participatin, candidates were just lsing. Here, this was nt the case. City f Mbile v. Blden (1980): Asks whether the at large electin f Mbile s City Cuncil is a vilatin f VRA 2. - Hlding: An actin by a State that is racially neutral n its face is nly uncnstitutinal if it is mtivated by a discriminatry purpse. - Zimmer criteria re insufficient t prve a discriminatry purpse. - N lnger can rely n past discriminatin t shw a discriminatry purpse. - Stevens Cncurrence: Agrees there was n vilatin f Cnstitutinal rights but wants a different standard: The prper test shuld fcus n the bjective effects f the plitical decisin rather than the subjective mtivatin f the decisin maker - White Dissent: Shuld use White v. Register- past discriminatin shuld be relevant Plurality is dismissing Zimmer and ignring White. - Marshall Dissent: discriminatry impact shuld be enugh. Amendments t the VRA 2 (1982) Amendments supprt curt s decisin in White v. Regester if the result f a cntested system r practice is discriminatin, the system shuld be struck dwn. Sught t verturn City f Mbile v. Blden, which states that the intent f the questined regulatin must be discriminatry fr the law t be struck dwn. Amended VRA 2: N vting qualificatin r prerequisite t vting, r standard, practice, r prcedure shall be impsed r applied by any State r plitical subdivisin t deny r slating candidates - Unrespnsiveness t legislatrs t their particularized interests - Tenuus state plicy underlying the preference fr multi-member r atlarge districting - Existence f past discriminatin - Majrity vte requirements - Anti=single sht vting prvisins Essentially by City f Mbile- the curt acknwledges the Zimmer factrs and the hlding in White v. Register but says that there is n cnstitutinal vilatin withut a discriminatry purpse. Class Exercise: Clarificatin f the burden f prf in vting discriminatin cnsideratins Imprtant evaluatin is result versus intent. Mbile emphasized intent, and White emphasized result. The amendments changed the cnsideratin t result thereby eliminating a necessary smking gun f discriminatin in rder t seek change. Prir t Mbile, a ttality f

9 abridge in a manner which results in a denial r abridgement f the right f any citizen f the United States t vte n accunt f race r clr, r in cntraventin f the guarantees set frth in sectin 4(f)(2). The fact that members f a minrity grup have nt been elected in numbers equal t the grup s prprtin f the ppulatin shall nt, in and f itself, cnstitute a vilatin f this sectin. Dle Amendment: (b) A vilatin f subsectin (a) is established if, based n the ttality f circumstances, it is shwn that the plitical prcesses leading t nminatin r electin in the State r plitical subdivisin are nt equally pen t participatin by members f a class f citizens prtected by subsectin (a) f this sectin in that its members have less pprtunity t participate in the plitical prcess and t elect representatives f their chice. The extent t which members f a prtected class have been elected t ffice in the State r plitical subdivisin is ne circumstance which may be cnsidered prvided that nthing in this sectin establishes a right t have members f a prtected class elected in numbers equal t their prprtin in the ppulatin. circumstances test was used. Mbile put int place a necessary requirement f specific evidence f intent. Dle cmprmise affirmed the results test, but put int place language that emphasized a lack f a prprtinal representatin standard. Factrs discussed: (page ) (factrs nt exclusive) Extent f histry f discriminatin Extent t which vting is racially plarized Extent t which vting practices may enhance pp. fr discriminatin If minrity members have been denied access t a slating prcess Extent t which ther effects f discriminatin are felt Whether plitical campaigns have racial appeals Extent t which members f the minrity grup have been elected VOTING RIGHTS ACT SECTION 2 (RACIAL VOTE DILUTION) CATEGORY Gverning Statute/Case Law Practical Cnsideratins VRA Sectin 2 & the Gingles Test (Caitlin) 11/20 VRA 2: - Ttality f the circumstances becmes imprtant accrding t the Senate Reprt althugh the list isn t exhaustive - Sectin 2 applies natinally- nt just cvered jurisdictins - Sectin 2 has n expiratin date (Sectin 5 preclearance has t be renewed) Thrnburg v. Gingles (1986): First case under amended 2. NC General Assembly case- Black vters in several f the multimember districts filed suit, claiming that within the districts there were cncentratins f black citizens that were sufficiently large and cntiguus t cnstitute effective vting majrities in single-member districts lying whlly within the bundaries f multimember districts. - The Curt accepts the results based test established by the amendment t 2. - Hlding: the legal cncept f racially plarized vting, as it relates t claims f vte dilutin, refers nly t the existence f a crrelatin between the race f vters and the selectin f certain candidates. Plaintiffs need nt prve causatin r intent in rder t prve a prima facie case f racial blc vting and defendants may nt rebut that case with evidence f cause r intent. - The test established by the majrity is given at right this becmes the threshld fr a 2 claim. Bartlett v. Strickland NC GA Huse redistricting plan Senate Reprt Disregards Blden- gives a list f 8 factrs that culd indicate a 2 claim: 1. the histry f vting related discriminatin in the state r plitical subdivisin 2. the extent t which vting in the electins f the state is racially plarized 3. the extent t which the State has used vting practices r prcedures that tend t enhance the pprtunity fr discriminatin against minrities 4. the exclusin f members f the minrity grup frm candidate slating prcesses; 5. the extent t which minrity grup members bear the effects f past discriminatin in areas that effect their plitical participatin 6. the use f vert r subtle racial appeals in plitical campaigns 7. the extent t which members f the minrity grup have been elected t public ffice I the jurisdictin 8. that elected members are unrespnsive t the particularized needs f the members f the minrity grup 9. that the plicy underlying the State s use f cntested practice r structure. Gingles Test: 1. Minrity grup must be able t demnstrate that it is sufficiently large and gegraphically cmpact t cnstitute a majrity in a single-member district 2. The minrity grup must be able t shw that it is plitically chesive 3. The minrity must be able t demnstrate that the white majrity vtes sufficiently as a blc t

10 Reemergence f Ttality f Circumstances & Sectin 2 s Scpe (Sarah) 11/20 Text: , nte 1, 4, , nte 3. Plan 1: Pender Cunty is cmbined with part f a neighbring cunty; nly 35% black vting age ppulatin, which is insufficient t elect preferred candidate. Supprted by ppulatin f Pender Cunty Plan 2: Pender Cunty is split, with ne district having 40% black vting age ppulatin, which is ften sufficient t elect preferred candidate because f crssver vting. State supprts plan 2. Issue: Hw large must a racial minrity grup be in a pssible single district t satisfy the first prng? Is there is a vilatin f 2, given that n majrity district is pssible? Argument: Supremacy Clause 2 trumps state cnstitutin. LULAC v. Clements: VRA 2 challenge t electin f state trial judges n a cunty-wide basis. - Hlding: The scpe f the VRA is brad, but its prtectins extend nly t defeats experienced by vters n accunt f race r clr- nt n accunt f plitical preference - Find that the case has t d with plitical parties rather than race. - Curts have t make sure t cnsider the nnracial causes fr vting preferences. Jhnsn v. De Grandy (1994) VRA 2 challenged t 1992 Flrida State legislature singlemember district redistricting plan. There was plitical chesin within Hispanic and black ppulatins, but nne between the tw grups and a nn-hispanic white blc vting against bth grups. Hlding: Ttality f the circumstances des nt supprt a finding f vte dilutin, where bth minrity grups cnstitute effective vting majrities in a number f state Senate districts substantially prprtinal t their share in the ppulatin, and where Ps have nt prduced evidence indicating that the plan wuld make vters have less pprtunity than ther members f the electrate t participate in the plitical prcess and t elect representatives f their chice. Cntrlling case nw states that the Gingles test is a threshld requirement (necessary, but nt sufficient). Curts must examine ttality f the circumstances, including whether the new scheme wuld deny minrity vters equal plitical pprtunity. Hlder v. Hall (1994) Issue is whether the size f a gverning authrity is subject t a vte dilutin enable it- in the absence f special circumstances, such as the minrity candidate running unppsedusually t defeat the minrity s preferred candidate. Ways t analyze blck vting: 1. Anecdtal r Cmmnsensical: judicial review 2. Hmgenus Precinct Analysis: a. Lks at the returns frm precincts whse ppulatin is verwhelmingly (mre than 90%) ne race. b. Prblem is that it assumes that every black persn has the same cncerns n matter where they live. 3. Bivariate Eclgical Regressin a. Lk at the race f the vter and see if it is crrelated with preferences f a particular candidate. 4. Multi-variate Eclgical Regressin a. Desn t think race shuld be the nly factr b. Prblem: yu dn t knw anything abut the vter- ignres incme levels, educatin levels c. If yur variables are cmpletely uncrrelated with each ther- multivariate is very gd at determining hw much each variable accunts fr the differences d. If the variables crrelate with each ther (i.e. race and educatin level in sme areas)- multivariate analysis can tell yu hw race and educatin tgether accept variables- but can t tell yu independently hw it effects the vte. Vting Rights Act 2 Discriminatry purpse nt required (verruling Mbile) Threshld inquiry (Gingles prngs) Sufficiently large (pending Bartlett case) and gegraphically cmpact (e.g., Dillard) Plitical chesin White blc vting (LULAC v. Clements) Merits Inquiry (De Grandy) Ttality f circumstances Prprtinality nt required Nt applicable t gverning authrity size (Hlder)

11 challenge under 2. Hlding: N. In additin t Gingles precnditins and whether ttality f the circumstances are met, a curt must find a reasnable alternative practice against which t measure the existing vting practice. Here, the Curt lacks a reasnable alternative practice t use as a benchmark fr evaluating a singlemember structure and, therefre, the challenge under 2 fails. Thmas, cncurrence: Text f 2 says that practice and prcedure shuld be limited t access t the ballt (Stevens disagrees with this, stating this is a vilatin f Allen and ther case law). His psitin, that the statute shuld be limited t claims that challenge direct denial f the right t cast a ballt, rests n a plitical thery f individualized demcracy. Dissent: Histry & precedent supprt a brad reading f 2 in rder t implement its remedial purpse f eliminating racial discriminatin frm the electin prcess. Fund n difficulty in identifying a five-member cmmissin as a benchmark. Is this t brad a reading? RACE & REPRESENTATION: A NEW SYNTHESIS CATEGORY Gverning Statute/Case Law Practical Cnsideratins The United Jewish Orgs v. Carey (1977) U.S. AG bjected under Transfrmatin VRA 5 t prpsed state legislative districting plan, which Shaw v. Ren: f Districting (Katherine) placed the Hasidic cmmunity entirely in ne assembly district (61% nnwhite) & ne senate district. Cnstitutinal? N Standing? Must be plaintiffs in 12/2 State prpsed a revised plan that split the cmmunity the majrity-minrity district & nte 1, , (ntes 1, 2); 738- between tw districts, and had the same number f majrity-nnwhite districts but even mre nnwhite percentages as between the districts. Strict Scrutiny Trigger? Race as predminant factr r if cnsidered at all 739 (ntes 1, 2); AG: Said plan was engaging in packing & splitting Cmpelling interests? VRA (ntes 1, Hasidic ppulatin asserted equal prtectin said they cmpliance 2) culd nt vte in a chesive mass because they were split int tw districts. Als said plan was based n race. Straightfrward 15 th amendment claim whites & nnwhites are being treated differently, s the vte is diluted. Vte dilutin case. Hlding: Redistricting is cnstitutinal. Cnsideratin f race is apprpriate t crrect invidius discriminatin f nnwhites (relying n Allen & VRA). Fur members f the curt agreed with the Secnd Circuit & said: (1) the use f racial criteria in drawing district lines may be required by 5 f the VRA (2) under the act, the use f racial criteria is nt limited t remedies f explicit prir discriminatin, & (3) the use f numerical racial qutas in establishing certain black majrity districts des nt autmatically vilate the 14 th & 15 th Amends.

12 Redistricting (Caitlin) 12/2 Cncurrence emphasized the lack f any shwing f purpseful discriminatin in the New Yrk redistricting. Burger s dissent ppsed any use f qutas r racial gerrymandering. Shaw v. Ren (1993) U.S. AG bjected t prpsed cngressinal districting plan b/c f the failure t create a secnd majrity-nnwhite district in the suth-central t SE regin f the state (87% white, 20% black, 12 Huse seats). State prpsed a revised plan with tw majrity nnwhite districts, bth crazily drawn ( Rrschach ink-blt test ) White vters bjected. Mtin t dismiss case. Issue was whether plaintiffs can bring a claim. Curt held a valid claim. Althugh the reapprtinment plan was racially neutral n its face, the resulting shape was bizarre enugh t suggest that it cnstituted an effrt t separate vters int different districts based n race. The unusual district despite nble intentins seemed t exceed was reasnably necessary t avid racial imbalances. Curt held that redistricting n race must be held t a strict scrutiny standard w/ equal prtectin, but bdies must be cnscius f race s they can cmply with the VRA. Easley v. Crmartie (2001) - Whether NC s legislature used race as the predminant factr in drawing a new district. - Hlding: The decisin f the lwer curt was clearly errneus and there was n evidence that Nrth Carlina s plan vilated the Equal Prtectin Clause. - Prtectin f incumbents is a legitimate plitical gal f redistricting. - It is kay t cnsider race when redistricting- in fact it is unavidable Prblem arises when race predminates the redistricting. - Race crrelates clsely with plitical behavir- means that districting fr plitical reasns can appear t be racial - The party must be able t shw that they culd have dne it in a different way in rder t succeed n such a claim. Dissent (Thmas, Scalia, Rehnquist, Kennedy) - culd agree with Majrity s reasning- but dn t believe DC was clearly errneus Things t keep in mind when redistricting: - One persn- ne vte (Reynlds) - Whether it is a cvered jurisdictin under VRA 5 (then it requires preclearance) - VRA 2 (discriminatry effect) - Incumbents (keeping them in an ffice is a valid reasn) - Industry - Histry f racial discriminatin Cnsideratins: - Is this a break frm Shaw? Allwing the curt an escape frm the vigrus versight that Shaw prvided fr? REDISTRICTING & REPRESENTATION CATEGORY Gverning Statute/Case Law Practical Cnsideratins Partisan Gerrymandering (Caitlin) 12/2 Gaffney v. Cummings (1973): CT General Assembly reapprtinment plan- questin whether an therwise acceptable reapprtinment plan is cnstitutinally vulnerable where its purpse is t prvide districts that wuld achieve plitical fairness btw plitical parties. - Hlding: Deviatins in ppulatins abut the districts fall within permissible limits and the legislatures plan des nt vilate the principle f ne persn, ne vte. - A plitical cnsideratin wn t ever be sufficient t invalidate a plan - Districting will always have plitical cnsequences - Plitical gerrymandering isn t cmpletely exempt frm 14 th scrutiny Multimember districts viewed with suspicin Racially discriminatry effects - Judicial interest shuld be lw where a state is implementing a system that allcates plitical pwer in Supreme Curt has acknwledged that plitics and plitical cnsideratins are inseparable frm districting After Bandemer (maintaining that plitical apprtinment is justiciable) the issue becmes what is sufficient t cnstitute cnsistent degradatin. Any claim made under Bandemer necessarily embrils the curts in the mess f cmparing challenged electral utcmes with a curt s cnceptin f what a prper electral system wuld have yielded. but the Curt ffers n guidance n hw this is t be handled (i.e. hw t balance difference in judicial pinin with that f thse drawing the districts.) Partisan Gerrymandering

13 Redistricting in the 2000 s (Katherine) 12/ & ntes accrdance with vter strength Karcher v. Daggett (1983)- NJ s pst 1980 cngressinal redistricting plan cnstitutinally vilated ne persn, ne vte. (Frmal Opinin see The Plitical Thicket ) this is Steven s Cncurrence: - Perfect ppulatin equality is inadequate t judge an apprtinment plan. - Shuld cnsider: Effect n identifiable plitical grup Objective indicia f irregularity Can state prve neutral, legit. Interests. - Threshld: plaintiffs must shw they are members f an identifiable plitical grup whse vting strength has been diluted: Plitically salient class Gegraphical distributin is ascertainable that it culd have been taken int accunt in drawing district bundaries (crazy brders, etc.) Vting pwer is adversely affected Must be able t make a prima facie shwing that raises a rebuttable presumptin f discriminatin - Prcedural standard t cnsider Were peple excluded divergent viewpints frm frmulating the plan Did the prcess penly reflect partisan criteria Is there n explanatin fr selecting ne plan ver anther - If the State is unable t respnd t a plaintiffs prima facie case by shwing that its plan is supprted by neutral factrs- the curt culd challenge the plan. Davis v. Bandemer (1986)- Pst-1980 redistricting f IN state legislature. P claimed that the state s districting arrangements (including multimember districts) led t under representatin f Demcratic vters. Hlding: Essentially the curt develps an effects test standard fr determining when plitical gerrymandering is uncnstitutinal. Only when the system is arranged in a manner that will cnsistently degrade a vter r grup f vters influence n the plitical prcess as a whle. Fund that the plaintiffs had nt met this standard. Cncurrence (O Cnnr, Burger, Rehnquist): Agree that there is n cnstitutinal vilatin but wuld have dismissed the claims entirely- saying that claims such as these are nnjusticiable plitical questins. Dissent (Pwell, Stevens): Indiana Scheme vilated EPCusing Steven s scheme in Karcher. (Gegraphic shape f the vting district, etc) Badham v. Eu (N.D.Cal. 1988)- Cnstitutinal challenge by Republican cngressinal representatives in CA. - Issue becmes whether they have met the cnsistently degraded prng f Bandemer. (is ne electin sufficient?) Curt says n: they wuld have t demnstrate a mre dramatic degradatin- and they can t say that they are entirely ignred simply because their representative prprtin is nt the same as their prprtin f the ppulatin- they still have 40% f the seats. Vieth v. Jubelirer (2004) SEE CHART at the bttm. Plaintiffs were reg. dems in PA wh cntended that GOP cntrlled PA general assembly had uncnstitutinally gerrymandered the districts fr the Justiciable? Yes Bandemer. O Cnnr prprtinate representatin. If s, cnstitutinal standard? Stevens 1. significant adverse impact n identifiable plitical grup 2. bjective indicia f irregularity 3. State unable t prduce cnvincing evidence that plan services neutral, legitimate cmmunity interests. White Discriminatry intent and effect Systemic denial Questin: D any f the issues in partisan gerrymandering rise t the level f cnstitutinal harm?

14 1-6, electin f cngressinal representatin. Thus, dems were denied full participatin in the vting prcess & ne-persn, ne-vte was vilated. Equal prtectin argument. Plurality decisin by Scalia, jined by Rehnquist, O Cnnr, & Thmas, w/ Kennedy cncurring, upheld the ruling f the District Curt that the alleged plitical gerrymandering was nt uncnstitutinal. Hlding gerrymandering claims present a nn-justiciable questin, as there are n judicially manageable standards available t reslve gerrymandering questins. Minrity with majrity presentatin Plitical segregatin N cmpetitin/lack f accuntability REMEDIAL POSSIBILITIES FOR DEFECTIVE ELECTIONS CATEGORY Gverning Statute/Case Law Practical Cnsideratins Sme Remedial Bell v. Suthwell (1967) - A GA electin was cnducted General Rules Optins (Sarah) 12/2 Text: , nte 1, , nte 1, 4, , nte 1, 5-6 under prcedures invlving racial discriminatin which was grss, state-impsed, and frcibly state-cmpelled. Hlding: Curt has the pwer t invalidate a state electin. Des nt matter that there is an inability t demnstrate the utcme wuld have been different. Ok that relief was prperly sught after the electin was ver. There wasn t really preelectin relief pssible. General authrity f states t administer electins but cngressinal verride available (U.S. Cnstitutin: Art. I, 4, cl. 1; Art. 1, 5, cl. 1; Art. II, 1, cl. 2) Federal curt verride available if cnstitutinal prvisins, cnstitutinal rights, r federal laws at issue (Bell, Chism, Bush I, Bush v. Gre) Federal curts are nt s helpless r unresurceful as t be hamstrung by state law that wuld seem t prevent them frm rdering a new electin. Chism v. Remer (5 th Cir. 1988) - Curt vacated an injunctin partially based n availability f ther crrective relief at a later date, in the rdinary curse f litigatin. Factrs that shuld be satisfied t get a preliminary injunctin: Substantial likelihd that P will prevail n merits Substantial threat that P will suffer irreparable injury if injunctin is nt granted The threatened injury t P utweighs the threatened harm the injunctin may d t D; and That granting preliminary injunctin will nt disserve public interest. Curt specified that federal curts may fashin whatever remedy the law, equity, and justice require. In re the Matter f the Prtest f Electin Returns (Fla. App. 1998) There was widespread absentee vter fraud during the Miami Mayral Electin, but curt said nt apprpriate t invalidate electin must just discunt all absentee ballts. Getting t vte by absentee ballt is a privilege, nt a right, s k if legit nes were discunted. Hlding: Curt reversed the viding f the entire electin and rdering f a new electin, and granted the ther candidate the psitin f Remedial Optins Ordering a new electin (Bell) Enjining an upcming electin (Chism) Adjusting vte ttals (In re Prtest f Electin Returns) Examine questins whether particular ballts that were cunted ught t have been excluded r particular ballts that were nt cunted ught t have been included. Mre prblems nw with whether recunts shuld be cnducted at all and, if they shuld, what the standard ught t be. Recunts (Bush v. Gre) Three theretical basis fr exercising pwer t invalidate electins: Invalidatin as retributin fr utrageus, intentinal, illegal cnduct by gvernment fficials during electin prcess (as seen in Bell). Authrize invalidatins fr the purpse f ensuring electral purity withut regard t fficial intent. Such a rule may be t autmatic. Mst pragmatic cntemplate invalidatin when uncnstitutinal

15 The Electin f 2000 (Sarah) 12/2 Text: , (nte 5), , ntes 1-3, (nte 6), , , ntes 1-4 mayr. Bush v. Palm Beach Cunty Canvassing Bard (Bush I; 2000). Tw issues 1) Whether due prcess was vilated and 2) Whether legislative pwer was verruled, in vilatin f Art. II, sectin 1, clause 2 f US Cnstitutin and 3 USC 5 (see right bar fr explanatins f thse). On remand, Fla. S. Ct deletes the State Supreme Curt sectin and decides n a remedy cuched in legislative histry and legislative intent Legislative pwer legislature has the authrity t chse the electrs under the cnstitutin. The Curt suggests that Article II, 1 grants pwer t chse electrs t the state legislatures independent state legislature dctrine. Bush v. Gre (2000) - Decided December 12, sft deadline. Equal prtectin clause claim. Standards are different frm cunty t cunty, and within cunty frm precinct t precinct. Wasn t clear what cunted as "vter intent." Under-vtes Over-vtes Different kinds f chads Remedy: Stp the recunt Seven justices agreed that there was a Cnstitutinal Equal Prtectin issue here Hlding: The Curt ruled 5-4 that n cnstitutinally valid recunt culd be cmpleted by the December 12 th safe harbr deadline. Curt asserted that the Supreme Curt f Flrida has said that the legislature intended the State s electrs t participate fully in the federal electral prcess, as prvided by 3 U.S.C. 5. Curt ended the electin, because they said the Flrida legislature intended t btain the safe harbr benefits f 3 U.S.C. 5. Dissent Breyer and Suter agree but d nt jin the majrity. Vter intent is t vague The fact that ne cunty marks a dimpled chad as clear intent des nt make sense where anther cunty des nt Dissent Real remedy shuld be a cntinuatin f recunt after Fla. S. Ct. sets standards (Stevens, Ginsburg, Suter, Breyer). Give them a chance t cnduct the recunt by Dec. 18, the meeting f electrs. Invked the principle f fairness. actins were utcmedeterminative s when they might have affected the actual utcme f the electin. What happens when vtes shuld be reassigned t a different candidate? i.e. Buchanan s vtes t Gre? Cnstitutin Art. I, 4, cl. 1 (p. 1210) Art. I, 5, cl. 1 (p. 1211) Art. II, 1, cl. 2 (p. 1214) Grants authrity t decide electrs t legislature Ppular vte prcess decided upn, but since that authrity was granted by U.S. Cnstitutin, des it immunize nrmally applicable rules f state cnstitutin? Has been expanded upn by schlars since Electral Cunt Act (pp ) Safe harbr fr timing such that certified slate f electrs were submitted by a given date, sft deadline f December 12 (in year 2000) grants a presumptin f having vtes cunted Has prtectin f getting cunted by hard deadline f when the Cngress meets again in January

16 THE ROLE OF POLITICAL PARTIES CATEGORY Gverning Statute/Case Law Practical Cnsideratins The Ballt: Nixn v. Herndn (1927) Texas statute prvided that in Plitical Parties as Gatekeepers (Sarah) 12/9 n event shall a negr be eligible t participate in a Demcratic party primary electin. Texas was a ne party state at the time (Dem). Hlding: It is a vilatin f the 14 th t have a law Cnstitutin was expressly cnstructed t preclude the rise f plitical parties. The Rle f Plitical Parties Text: , that excludes blacks frm participating in a White Primary Cases (can we extend these ntes 1, 2, , ntes 1-3, 6, 7, , ntes 2, 5. Demcratic primary. A state actr is exerting pwer vilative f the Cnstitutin and, because Texas was vested by the authrity f their statute, this was a state beynd race! Think!) State cannt require white primaries under the 14 th Amendment equal prtectin actin. 20 years ag, Hlmes ruled the ther way in Giles. This was because, in Giles, the P just asked fr mney, nt t be registered. In additin, there is a single statute here that yu can thrw ut. Aftermath cases: Nixn v. Cndn Enacted a new statute giving the party an exclusive right t make the rule. Curt struck statute dwn again stating that the nly reasn they had that authrity is because a statute gives it t them and the cmmittee is exercising state pwer t regulate participatin. Grvey v. Twnsend Revised statute again and nw it was allwed. Plitical parties pssess the right t determine membership withut state interference, and Grvey s exclusin was the prduct f private, perhaps cnstitutinally prtected, activity. United States v. Classic held primary is integral part f prcedure fr ppular chice f Cngressman and there is a right t vte in the primary. Smith v. Allwright (1944) Challenge t State Demcratic Cnventin decisin t limit party membership t whites still in place. Trying t reslve incnsistency between Grvey and Classic. Hlding: Overruled Grvey, statutry system fr the selectin f party nminees fr inclusin n the general ballt makes the party which is required t fllw these legislative directins an agent f the State in s far as it determines the participants in a primary electin. Dissent: Annyed at the lack f cnsistency by verruling precedent. Terry v. Adams (1953) Jaybird Demcratic Assciatin limited its membership t whites. Their candidates almst always wn. Three justices (Black) Jaybirds are state actrs because state grant f authrity and they are vilating the 15 th. Desn t endrse a remedy, but implies that it is t rder Jaybirds t allw black vters (implicitly usurping state pwer). clause (Nixn) Plitical parties & ther purprtedly private grups are state actrs fr cnstitutinal purpses, at least in this white primary cntext (Smith, Terry) Access t General Electin Ballt Imprtant f primaries is underscred by the fact that the state can, at least t sme extent, limit nn-party driven means f placing names n the general electin ballt (see Burdick, uphlding a state write-in candidate ban).