Voting Rights: A Conversation with Morgan Kousser

Three years ago this week, the U.S. Supreme Court ruled unconstitutional a key provision of the Voting Rights Act (VRA), which was enacted in 1965 and extended four times since then by Congress. Section 5 of the act required certain "covered" jurisdictions in the Deep South and in states and counties outside the Deep South that had large populations of Hispanics and Native Americans to obtain "pre-clearance" from the Justice Department or the U.S. District Court in the District of Columbia before changing any election law. The provision was designed to prevent election officials from replacing one law that had been declared to be racially discriminatory with a different but still discriminatory law. A second provision, Section 4(b), contained the formula for coverage.

The VRA, notes Morgan Kousser, the William R. Kenan, Jr., Professor of History and Social Science, has been "very effective. You went from 7 percent of the black voters in Mississippi being registered to vote to 60 percent within three or four years. That was just an amazing change. Even more amazing, Section 5 was flexible enough to prevent almost every kind of new discriminatory technique or device over a period of nearly 50 years." For instance, Kousser notes, "when white supremacists in Mississippi saw that African Americans would soon comprise majorities in some state or local legislative districts, they merged the districts to preserve white majorities everywhere. But Section 5 stopped this runaround and allowed the new black voters real democracy. Voting rights was the one area in which federal law came close to eliminating the country's long, sad history of racial discrimination."

But on June 25, 2013, in a landmark ruling in Shelby County v. Holder, the Court overturned Section 4(b), effectively dismantling Section 5. Without a formula that defines covered jurisdictions, no area falls within the scope of Section 5. Chief Justice John Roberts, writing the 5–4 majority opinion, argued that although the original coverage formula "made sense," it was now outdated, based on "decades-old data and eradicated practices." Asserting that voter turnout and registration rates in covered jurisdictions are nearly equal for whites and African Americans, Roberts also noted that "blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."

The decision, says Kousser, was wrong. In a comprehensive study recently published in the journal Transatlantica, he, with the help of three Caltech students who worked on the study during Summer Undergraduate Research Fellowship (SURF) projects, examined more than four thousand successful voting-rights cases around the country as well as Justice Department inquiries and settlements and changes to laws in response to the threat of lawsuits. Over 90 percent, they found, occurred in the covered jurisdictions—indicating, Kousser says, that the coverage scheme was still working very well.

The study found that—even when excluding all of the actions brought under Section 5 of the VRA, and only looking at those that can be brought anywhere in the country—83.2 percent of successful cases originated in covered jurisdictions. This shows, Kousser says, that whatever the coverage formula measured, it still captured the "overwhelming number of instances of proven racial discrimination in elections."

We talked with Kousser about the ruling and his findings—and how this constitutional law scholar made his way to Caltech.

Why do you think Justice Roberts and the other justices in the majority ruled the way they did?

He had a sense that there had been a lot of cases outside of the covered jurisdictions. But if you look at all of the data, you see that the coverage scheme captures 94 percent of all of the cases and other events that took place from 1957 through 2013 and an even larger proportion up to 2006. Suppose that you were a stockbroker, and you could make a decision that was right 94 percent of the time. Your clients would be very, very wealthy. No one would be dissatisfied with you. That's what the congressional coverage scheme did.

I wish very much that I had finished this paper two years earlier and that the data would have been published in a scholarly journal or at least made available in a pre-print by the time that the decision was cooking up. That was a mistake on my part. I should have let it out into the world a little earlier. Sometimes I have a fantasy that if this had been shown to the right justices at the right time, maybe they would have decided differently.

The Court did not rule on the VRA in general—but said that the coverage formula is outdated because voting discrimination is not as bad as it once was. Do you agree?

This is one of the reasons that I looked at the coverage of the California Voting Rights Act (CVRA), passed in 2002. In Section 2 of the National VRA, you have to prove what is called the "totality of the circumstances." You have to prove not only that voting is racially polarized and that there is a kind of election structure used for discrimination, but also show that there is a history of discrimination in the area, that there are often special informal procedures that go against minorities, and a whole series of other things. A Section 2 case is quite difficult to prove.

The CVRA attempted to simplify those circumstances so all you have to show is that there is racially polarized voting, usually shown by a statistical analysis of how various groups voted, and that there is a potentially discriminatory electoral structure, particularly at-large elections for city council, for school board, for community college district, and so on.

The CVRA, in effect, only became operative in 2007 after some preliminary litigation. And in 2007, after the city of Modesto settled a long-running lawsuit, lawyers for the successful plaintiffs presented the city with a bill for about $3 million. This scared jurisdictions throughout California, which were faced with the potential of paying out large amounts of money if they had racially polarized voting. Again and again, you suddenly saw jurisdictions settling short of going to trial and a lot of Hispanics elected to particular boards. This has changed about 100 or 125 local boards throughout California from holding their elections at-large to holding them by sub-districts, which allow geographically segregated minorities to elect candidates of their choice. If you graph that over time, you see a huge jump in the number of successful CVRA cases after 2007. What does this mean? Does it mean that there was suddenly a huge increase in discrimination? No, it means that there was a tool that allowed the discrimination that had previously existed to be legally identified.

If we had that across the country, and it was easier to bring cases, you would expose a lot more discrimination. That's my argument.

Do you think the coverage plan will be restored?

If there were hearings and an assessment of this scheme or any other potentially competing schemes, then Congress might decide on a new coverage scheme. If the bill was passed, it would go back up to the U.S. Supreme Court, and maybe the Court would be more interested in the actual empirical evidence instead of simply guessing what they thought might have existed. But I think right now the possibilities of getting any changes through the Congress are zero.

I would like to see some small changes in the coverage scheme, but they have to be made on the basis of evidence. Just throwing out the whole thing because allegedly it didn't fit anymore is an irrational way to make public policy.

As a professor of history, do you think it is your responsibility to help change policy?

Well, it has been interesting to me from the very beginning. Let me tell you how I got started in voting rights cases. My doctoral dissertation was on the disfranchisement of blacks and poor whites in the South in the late 19th and early 20th centuries. In about 1979, a lawyer who was cooperating with the ACLU [American Civil Liberties Union] in Birmingham, Alabama, called me up—I didn't know who he was—and he said, "Do you have an opinion about whether section 201 of the Alabama constitution of 1901 was adopted with a racially discriminatory purpose?" I said, "I do. I've studied that. I think it was adopted with a racially discriminatory purpose."

Writing expert witness reports and testifying in cases are exactly like what I have always done as a scholar. I have looked at the racially discriminatory effects of laws; I have looked at the racially discriminatory intent of laws. I have examined them by looking at a lot of evidence. I write very long papers for these cases. They are scholarly publications, and whether they relate to something that happened 100 years ago or something that happened five years ago or yesterday doesn't really, in principle, seem to make any difference.

How did you get started as a historian studying politics?

Well, I'm old. I grew up in the South during the period of segregation, but just as it was breaking down. When I was a junior in high school, the sit-ins took place in Nashville, Tennessee, which is where I'm from. I was sympathetic. I never liked segregation. I was always in favor of equal rights.

I had been fascinated by politics from the very beginning. By the time I was 8 or 9 years old, I was reading two newspapers a day. One was a very conservative newspaper, pro-segregation, and the other paper was a liberal newspaper, critical of segregation. They both covered politics. And if you read news stories in each about the same event on the same day, you'd get a completely different slant. It was a wonderful training for a historian. From reading two newspapers that I knew to be biased, one in one direction, the other in another direction, I had to try to figure out what was happening and what I should believe to be fact.

How did you end up at Caltech?

To be very frank, Yale, where I was a graduate student, didn't want me around anymore. When I was there, I started a graduate student senate. I wrote its constitution, and I served as its first president. We were obnoxious. This was in 1967 and 1968, and students were revolting around the country, trying to bring an end to the war in Vietnam, trying to stop racial discrimination, trying to change the world. I had less lofty aims.

Such as?

There was no bathroom for women in the hall of graduate studies where the vast majority of humanities and social sciences classes took place. We made a nonnegotiable demand for a bathroom for women. Yale was embarrassed. Yale granted our request. We did other things. We protested against a rent increase in graduate student married housing. Yale couldn't justify the increase and gave way. We formed a committee to get women equal access to the Yale swimming pools. Yale opened the pool.

In addition to doing research, you are an acclaimed teacher at Caltech—the winner of Caltech highest teaching honor, the Feynman Prize, in 2011. Do you think of yourself as more of a teacher or as a scholar?

I really like to do both. I can't avoid teaching. If you look at my scholarship, a lot of it is really in teaching format. I would like to school Chief Justice Roberts on what he had done wrong and to persuade him, convince him, that he should change his mind on this. A lot of my friends who are at my advanced age have quit teaching, because they can't take it anymore. When the term is over, they are jubilant.

I'm always sad when the term ends, particularly with my Supreme Court class, because the classes are small, so I know each individual student pretty well. I hate to say goodbye to them.

Do any particular students stand out in your mind?

I had one student who took my class in 2000. He was a computer science major. We used to talk a lot. We disagreed about practically everything politically, but he was a very nice and very intelligent guy.

When he finished the class, he decided that he would go to work for Microsoft. He did that for three years. Then he decided he wanted to go to law school, where he did very well; he clerked for an appeals court judge and he clerked for a Supreme Court justice. This spring, he argued his first case before the U.S. Supreme Court. The case that he argued was very complicated. I don't understand it, I don't understand the issues, I don't understand the precedents. It's relatively obscure, and it won't make big headlines. But he did it, and he's promised me that he'll share his impressions of being on that stage and that I can pass them on to current Caltech students. I know that they will find his experience as exciting as I will—a Techer arguing a case before the Supreme Court within 15 years of graduating from college! I can't quit teaching.