Passive Voter Suppression: Campaign Mobilization and the Effective Disenfranchisement of the Poor
Northwestern University Law Review, vol. 114, no. 3, pp. 633-704 (2019) (with Bertrall L. Ross II)
Abstract | Paper
A recent spate of election laws tightened registration rules, reduced convenient voting opportunities, and required voters to show specific types of identification in order to vote. Because these laws make voting more difficult, critics have analogized them to Jim-Crow era voter suppression laws. We challenge the analogy that current restrictive voting laws are a reincarnation of Jim-Crow era voter suppression. While there are some notable similarities, the analogy obscures a more apt comparison to a different form of voter suppression—one that operates to effectively disfranchise an entire class of people, just as the old form did African Americans. This form of suppression excludes the poor.
To account for the effective disfranchisement of the poor, we develop a more robust theory of voting than currently exists in the legal literature. Drawing on rational choice and sociological theories of voting, we show how information, affiliation with formal organizations, and integration into social networks of politically active individuals are far more important to the decision to vote than the tangible costs of voting associated with the new voter suppression.
Using this expanded account of voting, we identify the role of political parties and their mobilization activities in the effective disfranchisement of the poor. Relying on the same proprietary data as the Obama campaign in 2008 and 2012 (and hundreds of campaigns since) along with other public sources of data, we show how campaigns employ a “calculus of contact” to decide whom to mobilize. That calculus leads campaigns to disproportionately neglect the poor when canvassing, calling, and sending political mailers to potential voters—mobilization activities that have a significant turnout effect. In our view, the most significant voter suppression tactics of the 21st century are therefore not what legislatures are doing, but what campaigns are not doing.
We argue that a first step in combating this passive voter suppression should involve changing the information environment of campaigns: the amount and type of information about potential voters that the state makes available to campaigns. Such changes could force campaigns to adjust their calculus of contact and contact more low income people during election season. Including the poor as targets of campaign mobilization would be an important first step toward a more egalitarian democracy.
The Impact of Organizational Characteristics on Super PAC Financing (with Paul S. Herrnson & Jennifer A. Heerwig)
in , 8th ed., John C. Green et al., Rowman & Littlefield, pp. 248-262 (2018)
Super PACs are among the most influential participants in contemporary elections. Having spent billions of dollars since 2010, these relative newcomers to the political scene have had a conspicuous presence in many competitive House, Senate, and presidential contests. Nevertheless, remarkably little is known about these groups’ goals, strategies, or other organizational attributes, and even less is known about what enables some of them to raise the millions of dollars that fuel their television advertisements and other campaign efforts. In this study, we use a new data set comprising information about the super PACs that participated in the 2010 through 2016 federal elections to address the question: What is the impact of super PACs’ organizational characteristics and strategic objectives on their financing? Following a brief overview of their history and attributes, we analyze the impact of super PACs’ organizational characteristics and strategies on their revenues. The results demonstrate that a group’s mission, financial transparency, age, participation in elections for various levels of office, and support for different types of candidates have a major impact on its ability to raise money.
Corporations as Conduits: A Cautionary Note About Regulating Hypotheticals
Stetson Law Review, vol. 47, no. 2, pp. 225-258 (2018) (symposium on corporations and money in politics)
In this paper, prepared as part of a symposium on the intersection of corporations and money in politics, I illustrate the various ways that corporations can spend their money to influence politics in America and the relevant disclosure rules (or lack thereof) that track this political activity. I also highlight opportunities for individuals to exploit corporate transparency loopholes to illegally spend money in American politics and address the question whether proof of possible nefarious activity is sufficient to justify regulations targeting actual nefarious activity, drawing on recent debates about voter fraud. Finally, I argue that campaign finance laws have been created, justified, implemented, and interpreted in relative isolation from one another, creating unnecessary (though perhaps anticipated) loopholes in enforcement that undermine the goals of oversight and accountability in campaigns and elections. Campaign finance regulations can only be effective insofar as they respond to the dynamic character of political campaigns. Thus, policymakers should focus less on “comprehensive” reform and more on “integrated” reform, resulting in more emphasis on as-applied challenges in the courts.
In the Shadows of Sunlight: The Effects of Transparency on State Political Campaigns
Election Law Journal, vol. 15, no. 4, pp. 302-329 (2016) (with Abby K. Wood)
In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First Amendment jurisprudence that these donors are disproportionately affected by campaign finance regulations. In short, the argument that disclosure chills speech is not strongly supported by the data.» Slides
· 2015 Travers Conference on Ethics and Accountability in Government (San Francisco, CA)
· 2012 Conference on Empirical Legal Studies (Stanford Law School)
· 2011 American Political Science Association Annual Meetings (Seattle, WA)
Administering Section 2 of the VRA After Shelby County
Columbia Law Review, vol. 115, no. 8, pp. 2143-2218 (2015) (with Christopher S. Elmendorf)
Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; and, second, that the courts have authority to regularize Section 2 adjudication by creating rebuttable presumptions. Most Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases—each relying on data from a different set of elections—are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also reduce the dependence of vote dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.
Did Multicultural America Result From a Mistake? The 1965 Immigration Act and Evidence From Roll Call Votes
University of Illinois Law Review, vol. 2015, no. 3, pp. 1239-1258 (2015) (with Gabriel J. Chin)
→ Reprinted in Immigration & Nationality Law Reivew, vol. 36, pp. 643-662 (2015)
Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade America; education, employment, housing, politics, and the population itself have irreversibly changed.
Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a majority minority nation. In 1960, because U.S. law restricted immigration by race, 85% of the population was non-Hispanic white. Since the enactment of the Immigration Act the Hispanic and Asian American share of the population has more than quintupled, and by 2043 the Census Bureau projects that African Americans, Latinos and Asian Americans together will comprise a majority of the population.
Based on the legislative history, statements by government officials, and media reports, many scholars argue that Congress did not intend to change the racial demographics of the immigrant stream. Instead, these scholars argue that the diversification of the American population was an enormous unintended consequence, one which Congress, had it appreciated what it was doing, might have thought better of. This Essay introduces novel evidence to evaluate that claim: the roll call votes of the House and Senate on these laws. The votes show that nearly identical coalitions of civil rights advocates supported all three laws while the same group of racially intolerant legislators opposed all three. This pattern suggests that all three laws had similar motivations and goals. We argue that the laws were inspired by sincere anti-racism and not cosmetic responses intended to have little practical effect.
The Geography of Racial Stereotyping: Evidence and Implications for VRA "Preclearance" After Shelby County
California Law Review, vol. 102, no. 4, pp. 1123-1180 (2014) (with Christopher S. Elmendorf)
The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the "outdated" formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within sub-state geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make sub-state coverage determinations to an administrative agency (along with other responsibilities for keeping the coverage formula up to date). Finally, we show that if Congress does not act, the courts could use our results to reestablish coverage in a number of states, entering much broader "bail in" remedies for constitutional violations than would otherwise be justified.» Academic presentations
· 2013 Cooperative Congressional Election Survey Conference (Sundance, UT) -- Spencer slides
· 2012 Midwest Political Science Annual Meetings (Chicago, IL) -- Elmendorf slides (.ppt)
» TV appearances
· Elmendorf on "The War Room" (Current TV, July 2, 2013)
· Spencer on "Inside Story Americas" (Al Jazeera English TV, June 26, 2013)
» In the media
· Slate (Op-Ed, July 17, 2013)
· The Philadelphia Inquirer (June 27, 2013)
· Pacific Standard (June 25, 2013), reposted on Salon.com (July 3, 2013)
· The Nation. (June 25, 2013)
· Mother Jones (June 25, 2013)
· The New York Times (June 23, 2013)
· Election Law Blog guest post (March 4, 2013)
Legislating Incentives For Attorney Representation in Civil Rights Litigation
Journal of Law & Courts, vol. 2, no. 2, pp. 241-271 (2014) (with Sean Farhang)
Abstract | Paper | Replication materials (upon request)
In this paper we investigate whether, when Congress relies upon private lawsuits to implement a law, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. We ask: In statutes with private rights of action, can Congress substantially affect whether plaintiffs are represented by counsel? Using an original and novel dataset based upon review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981 to 2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to secure counsel to represent them. We find that over the course of the decade after passage, the law substantially increased the probability that Title VII plaintiffs would be represented by counsel, and that in doing so it reversed a decade long trend in the opposite direction.» Slides
· 2012 American Law and Economics Ass'n Annual Meetings (Stanford Law School)
· 2012 Western Empirical Legal Studies Conference (UCLA Law School)
· 2011 Law and Society Association Annual Meetings (San Francisco, CA)
Citizens United, States Divided: An Empirical Analysis of Independent Political Spending
Indiana Law Journal, vol. 89, no. 1, pp. 315-372 (2014) (with Abby K. Wood)
What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United about half of the states banned corporate independent expenditures and thus were “treated” by the Supreme Court’s decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in "treated" states to spending in the "control" states that have never banned corporate or union independent expenditures. We find that while independent expenditures increased in both treated and control states between 2006 and 2010, the increase was more than twice as large in the treated states and nearly all of the new money was funneled through nonprofit organizations and political committees where weak disclosure laws and practices protected the anonymity of the spenders. Finally, we observe that the increase in spending after Citizens United was not the product of fewer, larger expenditures as many scholars and pundits predicted, and we note that people were just as likely to make smaller expenditures (less than $400) after Citizens United as they were before. This finding is particularly striking because it cuts against the conventional wisdom of spending behavior and also challenges the logic of those who disagree with the most controversial element of the Citizens United decision – the rejection of political equality as a valid state interest.» Slides (.pdf)
· 2012 Law and Society Association Annual Meetings (Honolulu, HI)
· 2012 Midwest Political Science Association Annual Meetings (Chicago, IL)
» In the media
· New York Times (October 9, 2014)
· The Wall Street Journal Law Blog (January 23, 2014)
Are Ballot Titles Biased? Partisanship in California's Supervision of Direct Democracy
U.C. Irvine Law Review, vol. 3, no. 3, pp. 511-549 (2013) (with Christopher S. Elmendorf) (symposium on the politics of election administration)
This study, presented as part of a Symposium on the partisan administration of American elections, investigates whether the California Attorney General, who authors the ballot title and summary for statewide ballot initiatives, uses language that is biased rather than impartial. State law demands an impartial label, but commentators frequently complain that the AG chooses misleading language to bolster (undermine) measures that the AG or his/her party supports (opposes). Using a convenience sample of students from several universities, we measure ordinary observers’ perceptions of bias in ballot labels for initiatives dating back to 1974. Separately, we calculate an objective measure of bias using a readability algorithm. We then test hypotheses about AG strategy, examining whether the extent of bias in ballot labels varies with the closeness of the election and the degree to which the measure elicits partisan division. We also examine the correlation between bias perceptions and observer characteristics such as support for the ballot measure, trust in government, and social trust.
Long Lines at Polling Stations? Observations from an Election Day Field Study
Election Law Journal, vol. 9, no. 1, pp. 3-17 (2010) (with Zachary S. Markovits)
This pilot study represents the first systematic attempt to determine how common lines are on Election Day, at what times of day lines are most likely to form, the bottlenecks in the voting process, and how long it takes an average citizen to cast his or her ballot. Our study highlights the relevance of queuing theory to voting and the importance of evaluating polling station operations as a three-step process: the rate of arrivals, the check-in process, and casting a ballot. We collected data during the 2008 presidential primary election in California, measuring the efficiency of the operational components of 30 polling stations across three counties. We find statistically significant, and meaningful, variation in the service rates of poll workers and voting technology. Our findings will better help election officials make important decisions about the allocation of critical resources.
» Slides (.ppt)
· 2009 Midwest Political Science Annual Meetings (Chicago, IL)
· 2008 Jurisprudence and Social Policy Forum (UC Berkeley)
· 2008 Survey Research Center Brown Bag Seminar (UC Berkeley)
(Revise & Resubmit)
The "Appearance of Corruption:" Linking Public Opinion and Campaign Finance Reform (with Alex Theodoridis)
At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the "appearance of corruption" are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this paper, we report findings from a broadly representative national survey in which we 1) directly ask respondents to identify behaviors that appear politically corrupt, and 2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more likely to do something corrupt while in office. Our findings both support and challenge current campaign finance jurisprudence. Our direct item shows that bribery is considered to be the most politically corrupt behavior, while wealthy self-funded candidates are not perceived as corrupting the political system. These findings support the reliance of courts on bribery as the primary justification for campaign finance rules, and the courts’ dismissal of regulations targeting wealthy candidates. However, most of our respondents perceived many common behaviors besides bribery to be “very corrupt,” challenging courts’ reliance on bribery as the sole justification for campaign finance rules. Our conjoint experiment, designed to force trade-offs between various behaviors, similarly reveals little differentiation across candidate campaign finance profiles, suggesting voters may not distinguish common behaviors in terms of their corrupting role. A normatively positive result in our conjoint analysis is that partisans do not appear to define corruptibility on the basis of in-/out-party signals.
Mind the (Participation) Gap: Vouchers, Voting, and Visibility (with Christopher S. Elmendorf & Abby K. Wood)
Abstract | Working draft | Pre-analysis plan
Quantifying the effects of campaign finance disclosure on political participation is difficult. Existing empirical studies on the chilling effect of disclosure are mixed. Many campaigns believe that disclosure can actually attract speech while critics of disclosure emphasize the risk to contributors of potential harassment. The Supreme Court has endorsed campaign finance disclosure as essential for a functioning democracy, but has also warned that small donors and ideologically extreme donors may opt out of giving if their identities become public.
In this study, we exploit the design features of a new kind of public financing--campaign finance vouchers--to observe the effects of full disclosure on two forms of voter participation. One form of participation is public in nature (voucher use) and one is private (voting). For each registered voter in our sample we measure the "participation gap" (voting minus voucher) to assess whether local ideological outliers are less likely to use their vouchers and, among those who do use them, whether vouchers are given to ideologically proximate candidates or distributed more strategically relative to ideologically typical voters.
Super PAC Strategies and Tactics in Congressional Elections (with Paul S. Herrnson and Jay Goodliffe)
Often depicted as proxies for powerful corporations, labor unions, and ideologically-driven millionaires seeking to elect sympathetic public officials or to sway the decisions of those already in office, super PACs have been blamed for a tidal wave of undisclosed, outside campaign spending. Nevertheless, these groups have been the subject of little systematic study. Using a new dataset comprising every super PAC receipt and expenditure from 2010 to 2016, we present the first comprehensive analysis of super PAC expenditures in congressional elections. We demonstrate that super PACs vary along a surprisingly large number of dimensions, including their financing, transparency, strategy, and the interests they represent. We also show that organizational characteristics, candidate attributes, and the electoral context influence super PAC independent expenditures. Our findings situate super PACs among a growing variety of interest groups and provide a baseline for future studies of super PACs and other outside spending groups.
The Law of Gerrymandering (with Guy-Uriel Charles)
in , ed. Moon Duchin et al., Birkhauser Science (forthcoming 2019)
Abstract | Working draft
Many chapters in this volume are devoted to the study of shapes and symmetry, the parceling of people and places, and the capacity of computers for mapping the universe of possible outcomes. In this chapter, we outline the basic framework for how judges think about the challenges of gerrymandering. Our goal is to provide a foundational framework for geometers, mathematicians, computer scientists, political scientists, sociologists, and others who lend their expertise to help resolve the problem of gerrymandering. Many readers will find the jurisprudence of gerrymandering to be misguided or inadequate to the task, and they may be heartened to learn that efforts to reform the law are underway. However, because judges often have the final say on whether a gerrymander violates constitutional principles, and if so, what kind of remedies are available to those who are wronged, it is imperative for all concerned parties to have a productive understanding of the legal underpinnings of gerrymandering cases in the courts.
The Impact of Associational Ties on the Financing of Super PACs (with Jennifer A. Heerwig, Paul S. Herrnson & Jay Goodliffe)
Super PACs burst on the scene following the Supreme Court’s decision in Citizens United v. FEC. Relatively little is known about the motives and behaviors of the donors they represent. Using a new dataset comprising information about the super PACs and super PAC donors that participated in the 2010 through 2016 election cycles, we identify the economic and political sectors that are most prevalent among super PACs and their supporters. We then test the effects of economic and political associations on the likelihood individuals and groups will contribute to a super PAC and the amounts they donate. Our results demonstrate that the relationships between super PACs and their donors transcend explanations based on notions of business dominance and financial power.
Democratic Responsiveness in State Policy Implementation (with Miranda Yaver)
This paper remedies an important oversight in the democratic responsiveness literature: a failure to disentangle de jure policymaking from its de facto implementation and enforcement. Using state-level public opinion on a range of issues from abortion, gun control, healthcare, hate crimes, tax policy, and the death penalty we evaluate the extent to which public opinion shapes the vigor of state-level policy enforcement. We note that public laws, once adopted, are rarely appealed. While these laws remain on the books the nature of their enforcement often changes over time. Our findings provide important new insights into the power of public opinion to shape policy outcomes over time and to constrain executive branch policy choices. Our findings are also important for disentangling measures of policy congruence (preference overlap between voters and their representatives) and policy responsiveness (policy adoption in response to public support or pressure).