A strategic dominance argument for retaining 5
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A Strategic Dominance Argument for Retaining § 5 PowerPoint PPT Presentation


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A Strategic Dominance Argument for Retaining § 5. David Epstein Sharyn O’Halloran Columbia University. Should Section 5 Survive?. The arguments against retaining Section 5 fall into three categories: Section 5 has done its work and is no longer needed (it’s a “victim of its own success”)

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A Strategic Dominance Argument for Retaining § 5

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A strategic dominance argument for retaining 5

A Strategic Dominance Argument for Retaining §5

David Epstein

Sharyn O’Halloran

Columbia University


Should section 5 survive

Should Section 5 Survive?

  • The arguments against retaining Section 5 fall into three categories:

    • Section 5 has done its work and is no longer needed (it’s a “victim of its own success”)

    • Section 5 will be enforced in such a way as to hinder further progress (it’s “at war with itself”)

    • In this new, partisan era Section 5 creates too great a temptation for partisan “mischief”

  • We deal only with the latter argument


Limits on mischief

Limits on Mischief

  • We build a formal model of the Section 2/ Section 5 policy making process

    • We then use the model to analyze the consequences of Section 5 administration

  • Question: Is Section 5 too powerful a tool to be left in partisan hands (worst case scenario)?

  • Answer: No

    • The worst outcomes with Section 5 are just as good as the best outcomes without it.

    • Strategic dominance argument for retaining Sec. 5


Actors preferences

Actors’ Preferences

  • States submit plans; DOJ can preclear or not

    • Plans can help or hurt minorities

  • Preferences over plans reflect actors’ racial preferences as well as partisan interests

    • When partisan effects are small or absent, act according to racial preferences

    • With significant partisan effects, partisan considerations can take over

    • Partisan effects can go either way, making actors more pro- or more anti-minority

  • Game tree…


Informational structure

Informational Structure

  • States and DOJ know the exact effects of the state policy proposal

  • Courts observe these effects only imperfectly

    • Three regions:

      • Definitely help minorities

      • Definitely harm minorities

      • Unclear

    • This is where Section 5’s higher burden of proof comes into play


A strategic dominance argument for retaining 5

Possible Policy Outcomes

SQ=0

Anti-Minority

Pro-Minority

  • Unidimensional policy space


A strategic dominance argument for retaining 5

Possible Policy Outcomes

SQ=0

S>0

Anti-Minority

Pro-Minority

  • Unidimensional policy space

  • Policy can give minorities either more or less utility, relative to the status quo


A strategic dominance argument for retaining 5

Possible Policy Outcomes

S<0

SQ=0

S>0

Anti-Minority

Pro-Minority

  • Unidimensional policy space

  • Policy can give minorities either more or less utility, relative to the status quo


A strategic dominance argument for retaining 5

Possible Policy Outcomes

  • States might choose a policy like this:

  • Because they have anti-minority preferences; or

  • Because they have partisan preferences, and this policy hasanti-minority effects (like packing now).

S<0

SQ=0

S>0

Anti-Minority

Pro-Minority

  • Unidimensional policy space

  • Policy can give minorities either more or less utility, relative to the status quo


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

Court can only distinguish different categories


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Upheld Under

Section 5

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

Impact of the burden of proof

Section 5: State has to prove no harm to minorities


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Upheld Under

Section 2

Upheld Under

Section 5

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

Impact of the burden of proof

Section 5: State has to prove no harm to minorities

Section 2: Plaintiff has to prove harm to minorities


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Upheld Under

Section 2

Upheld Under

Section 5

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

If precleared, will survive §2


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Upheld Under

Section 2

Upheld Under

Section 5

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

If precleared, will survive §2

If not precleared, court won’t overturn on §5 grounds


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Upheld Under

Section 2

Upheld Under

Section 5

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

If precleared, will survive §2

If not precleared, court won’t overturn on §5 grounds Range of DOJ discretion


A strategic dominance argument for retaining 5

Possible Policy Outcomes

Upheld Under

Section 2

Upheld Under

Section 5

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

DOJ Discretion


Equilibrium

Equilibrium

  • When DOJ is strongly pro-minority, get full-information outcomes:

    • States with S ≥ 0 enact their ideal point

    • States with S < 0 enact the status quo

  • As DOJ becomes more partisan, states with S < 0 get outcomes closer to their ideal points

  • Still, outcomes are never worse than they are in the Section 2 subgame alone

    • Retaining Section 5 is a dominant strategy


Variations

Variations

  • Review of Positive Preclearance Determinations

    • Helps if DOJ is anti-minority, hurts otherwise

    • Would increase DOJ workload

  • “Expedited Injunctions,” a la Gerken

    • Same: helps if and only if DOJ is anti-minority

    • Would decrease workload on DOJ, but increase burden on groups

  • Reducing DOJ discretion

    • Region 2 measure discretion in the model

    • Always improves outcomes to lower the value of J


A strategic dominance argument for retaining 5

2D

2D

D

D

D

= Range of state proposals

-J

0

J

1) Strongly pro-minority DOJ

-J

0

D+J/2

J

2) Moderately pro-minority DOJ

-J

0

J/2

J

3) Anti-minority DOJ


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