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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

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
slide6

Possible Policy Outcomes

SQ=0

Anti-Minority

Pro-Minority

  • Unidimensional policy space
slide7

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
slide8

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
slide9

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
slide10

Possible Policy Outcomes

Clearly Pro-Minority

UncertainEffects

Clearly Anti-Minority

-J

+J

SQ=0

Anti-Minority

Pro-Minority

Court can only distinguish different categories

slide11

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

slide12

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

slide13

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

slide14

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

slide15

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

slide16

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
slide19

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