Ellen D. Katz

On Overreaching, or Why Rick Perry May Save the Voting Rights Act but Destroy Affirmative Action

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in both Texas v. Holder and Fisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely to succeed had it chosen to temper both its actions and claims in the pending cases. As it stands, Texas’s assertive stance in Fisher promises to bolster the aversion many Justices already feel towards affirmative action. With regard to the VRA, however, Texas’s uncompromising approach to the regime may prove to be the VRA’s best defense. As recent redistricting and voter ID decisions suggest, Texas’s stance may be provide what is arguably better evidence for why the statute remains necessary than anything proffered by the VRA’s many supporters. Indeed, the State’s aggressively hostile stance towards the VRA has the potential to destabilize judicial misgivings about the statute, and, if not fully reverse them, postpone their implementation.

Smoke-Filled Rooms

The smoke-filled room is making a comeback. Condemned as a corrupt, anti-democratic means for nominating candidates to public office, the smoke-filled room has recently found prominent and diverse defenders. Last winter, Democratic stalwart Geraldine Ferraro celebrated the institution when she urged Democratic superdelegates to exercise their controlling power independently of, or even counter to, the will of the Democratic Partys rank and file. A few weeks earlier, Justice Scalia celebrated the smoke-filled room as a traditional, legitimate and accepted means for selecting candidates for public office, and hence one on which New York State could permissibly rely to select nominees for state trial judge. Smoke-filled rooms are not all alike, and the differences among them matter. This paper explores these differences by comparing the role of the smoke-filled room in the nomination process Barack Obama traversed in order to become the Democratic Partys nominee for president with the one Margarita Lopez Torres confronted when she sought her partys nomination to become a trial judge in Brooklyn. Broadly similar in structure, both nomination processes rely on decentralized state-run primaries to select delegates to attend party-run conventions that select the partys nominee. And both give party leaders discretionary power to determine the nominee absent meaningful input by the partys rank and file. These two smoke-filled rooms nevertheless differ in important respects. This paper shows how the one Obama confronted and Ferraro defended was more transparent, penetrable, directed by party rule, and politically contestable than was the one Lopez Torres faced and Justice Scalia upheld in New York State Board of Elections v. Lopez Torres. These differences explain not only why Obama succeeded and Lopez Torres failed, but also why the smoke-filled room inhabited by Democratic superdelegates is a far more viable political structure.

Resurrecting the White Primary

This Article argues that the right to vote encompasses the right to participate in a competitive electoral process. It offers a revisionist reading of the White Primary Cases as recognizing this core principle and explains how recent case law sacrifices it by disregarding the importance of electoral competition to participation in a party primary. The Article also explores how current doctrine cedes to political parties, and to the Democratic Party in particular, the power to manipulate the racial composition of the primary electorate. Taken together, these developments create a legal structure resembling the one that supported the exclusion of African-American voters from determinative primary elections in the Jim Crow South. The Article concludes by exploring the ramifications of this parallel in light of the Courts decision last term in Vieth v. Jubelirer, which refused to impose meaningful curbs on partisan gerrymandering.