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NAMUDNO and the Dilemma of Observational Equivalence

Going into this case, the common wisdom was that there was no easy way out for the Court.
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An old saying in politics goes that if there's a proposition that everyone agrees to, there must be something wrong with it. We usually think that courts are different, but the Supreme Court's recent ruling the in crucial NAMUDNO voting rights case may be the exception that proves the rule.

Going into this case, the common wisdom was that there was no easy way out for the Court: It would have to rule that Section 5 of the 1965 Voting Rights Act -- which requires the South and other covered areas to preclear with the federal government changes in state or local law that might affect voting--was either still necessary and therefore constitutional, or not.

The key to this dilemma was that the entity seeking relief from Section 5's preclearance provisions was a utility district (NAMUDNO stands for Northwest Austin Municipal Utility District Number One) that didn't register voters and hence didn't fall under the commonly accepted definition of a "political subdivision" established in previous case law. Hence, the theory went, either the utility district should be exempt from Section 5's strictures since it had done nothing wrong (it wasn't even in existence until 1987, far after the VRA was first passed), or it would have to satisfy the same requirements as all other political entities in covered states because the VRA was still constitutional, even in its current amended form, even all these years later.

But no! The Court found, in its infinite wisdom, that in fact the previous definition of "political subdivision" wasn't applicable after all. This allowed them to "get off at the first stop," otherwise known as "punting:" they simply ruled that NAMUDNO should have been allowed to try to bail out from under Section 5 coverage, contrary to the district court ruling, and so sent the case back on those terms without reaching any of the deeper constitutional questions.

Observers view NAMUDNO as a bit of an opportunity missed; rather than have this case provide guidance for the next round of redistricting, the next round of redistricting will probably serve as input for the court's disposition of Section 5. So let's look ahead a bit and try to game out what influence the court's ruling, or lack thereof, should have on the redistrictings following the 2010 census.

The crucial concept to begin with here is what political scientists call "observational equivalence," or the difficulty of proving a negative. Let me explain: the question is whether Section 5 is still necessary. Southern states point to the near lack of preclearance requests denied under Section 5 to argue that they have reformed. Civil rights groups say that the lack of discriminatory actions is proof that Section 5 works, and that to dismantle it is to risk returning to the bad old pre-VRA days.

The problem is that a world in which Section 5 procedures are unnecessary is observationally equivalent to a world where they are necessary and completely effective. Either way, the result is no violations for the federal government to overturn.

How does one escape from this dilemma? If the only observations we had came from the South, it would be difficult. But luckily we have the whole rest of the country to use as a control group - even better, since the question is whether the South (and other covered jurisdictions) should be singled out for preclearance requirements, a natural standard would be whether their electoral processes work to disadvantage minorities more than in the rest of the country. So one could imagine, for instance, a civil rights version of the 1988 Seattle-Vancouver handgun violence study: Seattle and Vancouver are very similar socio-economically, except that Seattle had fewer handgun restrictions than Vancouver. Sure enough, Seattle had far more gun deaths, both homicide and suicide, than did Vancouver. This type of study could be repeated with a number of Southern and non-Southern cities to test for rates of minority voting, office-holding, social benefits, and so on.

Until then, though, Southern states will have incentives to be very cautious. It may be hard to prove a negative, so the South will be careful not to prove a positive; that is, to engage in behavior that will appear to be retrogressive or anti-minority. This is especially true with a Democratic administration vigilantly enforcing Section 5; Texas's mid-decade redistricting and Georgia's voter ID laws, both passed under a Republican administration, now seem a bit ill-advised, as they perpetuate the image of the South as restricting minorities' political influence through any means possible.

So, probably not much will happen until the Court rules on a direct challenge to Section 5 (one which it cannot duck). Which means that it will be up to social scientists, in all likelihood, to change the terrain between NAMUDNO and the next big voting rights case.