in the south and in other parts of the country. i'd appreciate if we could have responses to those questions. >> yeah. it's indisputable there's some effect from section 5 and that section 5 may prevent -- and i agree with professor katz that a lot of jurisdictions take comfort in section 5, they can get something cleared without a big political dispute. but section 5 was and remains an extreme remedy that completely distorts the constitutional process of our government and that can only be justified under extreme circumstances. so i don't -- i'm not as pessimistic about the state of racial affairs to think that with 40% of southern legislatures being african-american or the presence of legal groups representing african-american rights or

latino american rights that we can reasonably believe that we will return to the system of jim crow. we're at a place -- therefore, i don't think that the extreme remedy that is section 5 can be constitutionally justified. as justin roberts said in his -- in his majority opinion i guess it was. unanimous opinion. the remedy that is section 5 must be justified by current political or current data. that's simply -- he was skeptical of whether that was there. i say it's not there. that that data was only present, possibly maybe two. but not justified by the record that was assembled in 2006. >> i think two things would happen. maybe certainly more actually. the african-american faces that

you see in southern legislatures would likely disappear because they're from majority/minority districts in lots of places. nina made a reference to racially polarized voting. one of the differences you do see in noncovered jurisdictions it's more polarized and that will play without section 5 in place to be a guard against that. i guess the sort of fallback that, well, section 2 could take care of it if nina has more strength on earth and can keep fighting the cases. i worry section 5 goes down and i think it applies on to section 2, the next one on the chopping block. it seems very easy to make the claim, you don't have the regional differences, but i can write that brief.

it's not an end there. and the school analogy is a fascinating one and one of the things interesting is not just the schools getting out of the desegregation decrees, but the schools that fought dissolution. kansas city, detroit did it. and it's an interesting analogy to bail out. why aren't they pushing that? because they like the supervision and it does certain things that are useful for them. i think that's looked at with skepticism and it ought not to be. that they'll embrace fed regulation that are positive and good and i'll say empowering to them. >> i mean, this takes us back to where this panel began, so maybe it's a good place for the panel to end. do i think that if the section 5 were struck down that the entire gains of the second reconstruction would be rolled back? no. i don't think so. i think some of those gains are cemented into place and are enduring. and the american consensus on

the right to vote has changed. do i think there are lots and lots of low-level discrimination that is stopped by section 5 that will occur? yes. it goes beyond the panels here which is about state redistricting. what section 5 is it changes the polling elections. i have a case in arkansas where they moved the polling place ten times in three years. several times outside of the district. will there be more restrictive registration practices? yes. there will there be more voter i.d.s. will there be a lot of redrawing of annexations and deannexations of areas and municipal elections? yeah. i think that's far more likely to happen in a world where section section 5 doesn't exist

than in a world where it does. i think that will put a huge bud on the very few lawyers who do voting rights work, among whom i hope to see many of you all in the future. we'll take a break here and come back for the last panel in five minutes? ten minutes. 34 states around the country in litigation over congressional redistricting plans. the u.s. supreme court also faces redistricting cases this term. more from the conference in the coming decade. this panel on voting laws is an hour and 25 minutes.

>> i go to hearings all the time and look at maps way too much. what this panel is exploring i would say is the heart of the reason. that many of us who are obsessed with redistricting and the ability to exercise the franchise get so hooked. as you know, establishing a right to vote that was meaningful was a long-fought battle, and what we will be looking at in many ways with this panel is the why of that battle. as our body politic continues to change and shift in myriad ways as we have seen through census data and community survey data at the heart of many of our community's conversations are the same ideas that motivated those who fought for the voting rights act itself.

concepts of fairness, aspirations toward actual representation by those whom we elect and self-identify as we call being an american. full membership is defined through this ideal of the right to vote and being heard. being the one person who can exercise the one vote. before we move to section 5 and p preclearance and all that, we are going to explore some of the issues that we think again are at the heart of this discussion. i'm going to introduce everybody all at once in the order they'll be speaking and we'll ask people to save their questions for later. we have a really remarkable group of folks with us to help us explore this. keith gaddie is a professor of political science at the university of oklahoma. he joined the faculty in 1996

after four years on the faculty at tulane in the school of public health. he's the author of many, many books and articles on elections and southern politics. and he is going to extricate for us this whole concept of citizen voting and the way that -- those arguments have emerged and the potential impact of that argument. lisa garcia-bedolla is a chair for the center for policy research. she's taught at uc irvine and long beach. her research interests are around community activity and political incorporation of racial and ethnic groups in the united states. lisa will be talking specifically about her research on latino voter population participation in california elections and some of the emerging issues for that community.

dan ichinose is the director of the legal center in los angeles. the drp informs community programs and advocacy through data collection and analysis and empowers community groups to utilize research in grant making program planning and advocacy. dan is going to talk to us about his most recent experience in california. really running a statewide program through which community input was solicited that informed the maps that the legal center with their consortium of community based groups drew and submitted during this latest redistricting process. then our wrap-up will be provided by keesha gaskins. prior to joining the brennan

center, she was executive director for the league of women voters in minnesota where she worked on voting rights issues. she had a particular focus on voter suppression issues including voter identification and proof of citizenship laws. she is going to close with out with emerging issues involving the voter suppression and some of the national litigation that is taking place. >> first of all, it's a pleasure to be here. the invitation to come out and speak on this issue is both opportune and appreciated. my colleagues and i crafted what is a 40-page article for the forth coming issue of the slipper on titled votes and the one person one vote problem. i'm going to endeavor to try to boil this 40-page article down to a convene ten minutes for you

through more of a storytelling approach. i do work as an expert witness and as a litigation consultant. helping to develop redistricting plans or working with plaintiffs who attempt to overturn redistricting plans. most of my clients have been republicans, some have been democrats. many of mine have been jurisdictions, some have been minority groups. so i have worked in a variety of areas. i was contacted to work in what is already termed a frivolous lawsuit in texas. i will not speak to its frivolousness but i'll speak to limitation in my testimony which will endear the lawyer who cross examined me and i won't contradict my testimony at that time. i am nina's favorite opposition expert, she tells me.

expert witnesses like we, we count things, we draw lines around them and then we color them in. that's fine, as long as you don't color the facts. so we will endeavor to not do that. but in the city of irvine the issue is whether or not the voting age population created a electoral distortions that violated one person, one vote. professor persily and others laid out a great foundation, which will save me time, but there are three things i want to tell you briefly the answer before i move on to discussing the conclusions we have reached about issues in citizen apportionment and citizen redistricting. there are three empirical questions that come up that lead us to examine this issue of whether or not political powers shown apportionedp.

first is to what extent is the use of one person, one vote, the equalizing of the district and in terms of creating one person, one vote in terms of turnout. the second question isr to participation variations across districts in congressional and state legislative elections, and the third question is what factors exist that structure variations and participation rates among the several states of the union? well, first and foremost, one person, one vote is a legal fiction. much like the census itself. being deemed accurate. in the 1960s before the reapportionment revolution, in most states we'd see variations in the level of turnout between the lowest turnout congressional

district and the highest turnout congressional with most extreme instances being turnout ratios of as much as 16 to 1. you'd have a district that would have 16 times as many people voting in the most populous district. to a certain extent it knocked it down. in the 1960s, 1970s turnout ratios, the comparison of the highest turnout in a state compared to the lowest turnout in another district in the state had been substantially reduced. but we still saw variations in some states where you'd have a 4 to 1 turnout. all the data are in the paper so there's discussion about this. one thing we did not see and we have seen the continuation of this through time. we get to the '90s. get to the previous decade. we still see variations in most states of anywhere between 1 1/2

to 3 to 1 of turnout ratios across the various districts. so even though we're equalizing population to the precision of the single person we still have the variation in the participation rates. this wasn't news to the political scientists in the room and back in 1996, political scientist jim campbell now at suny buffalo published "cheap seats" in which he observed that there's a relationship between rates of turnout in congressional districts and who wins. and put simply democrats win low turnout ss,in high turnout seats. so if you're going to go t the valley you might turnout of 120,000 individuals in a congressional district in a competitive well -- well, in a two party contest. in a two party district. so campbell concludes there's a

bias in congressional apportion gnat that it costs more republicans to win than more democrats, that vote surpluses are somehow wasted. subsequent research shows the variations in the state legislative contests around the united states. some of this is footnoted in the article and i can direct you to that. so there's a political implication or a political correlation to the variation in turnout. well, what's interesting in the last few decades is there is a structure to these turnout ratios that if we look across the 50 states, across elections, in each state, since 1992, there are two predictor variables that are powerfulplaing states that have large ratios of turnout, that have very high turnout districts and very low turnout districts. the first one is the growth of

resident noncitizen populations. this relationship didn't exist before the 1990s. but it has emerged in the 1990s and moving forward. in the second one is the scope of coverage of the state under section 5 of the voting rights act. voting rights act section 5 which professor piercely requires that changes in election law be precleared by the d.c. court or by the doj. it's based on historic turnout. this variable didn't explain turnout variations before 1992. but it does subsequently. and it's since 1992 that we see the dramatic expansion of the minority/majority opportunities in section 5 states. so part of what we may be seeing is an intersentivention use by

justice department in 1991, '92. we have a relationship between noncitizen population and variations of one vote and we protect equal participation on the basis of race. how does this come to bear on the issues of apportionate? the first is that in apportioning seats apportionate should be on the total population. if you're to pursue this approach, what would happen is states like california, florida and texas would lose congressional seats, they would return to the midwest and to the northeast. so there is a consequence to the apportionate of political power. it's not an insignificant number of seats. four or five from texas. as many as seven from california.

if you were to adjust it on the basis of citizenship. second, actually a former congressman from oklahoma offered an apportionate bill and it's worth noticing that he nearly lost his seat in reapportion gnat and redistricting in 2001. oklahoma would have picked up one seat under citizen apportionment. but with regard to seats, there are tremendous consequences. citizen apportionment where you attempt to equalize with the citizen population or the voting age population would result in a tremendous movement of seats inside many states especially california, texas, florida, arizona, new york. areas of tremendous population, but not necessarily a tremendous citizen population, would expand and become much more populous to equalize the citizen population.

now, the effort in leepack effoa test case to entertain if this could be done. the way the argument works is that the right to vote is vested in the individual. and if we look at the states of the united states, voting rights are invested in citizens, and the right to vote for congress is determined by eligibility to vote for the more numerous legislative seat in a state -- more numerous legislative body in a state legislature. so because all states require citizens -- citizenship as a condition for voting, the argument for citizen apportionment is, in part, based on the assumption that this is an individual vote. it's vested only in the individual. it's recognized by the legislature as being a precondition to vote, so apportionment schemes that dilute that vote based on where someone lives in the state,

makes some votes worth more than others based on the district someone lives in, that this violates equal protection. that's the sum of the argument. the flip side argument, though -- and this can be a seductive argument for some people. but as i observed during the break to somebody, in the light of day and sober, there are problems with this argument. and so of these are practical in terms of policy, and some are legal issues. the first and foremost among these is, if you look at reynolds v simms and other cases subsequently and look at the actual 14th amendment and the reframing of the constitution, the reconstruction period, voting was not seen as just being an individual activity. the vote had to have other value. and there are other concepts of representation that enter into the decision to guarantee equal access to the vote. the ability to get access to representation, the ability to engage in effective right of petition, all of which we

delineate in the text. and this approach to reapportionment to reply apply citizenship can represent a incouple brens of representation for individuals who might be citizens but are still residents of the united states and who enjoy a tremendous scope of rights even if they don't enjoy the right to voemt. there are practical problems to implementing citizen apportionment. as was indicated in the previous break, there are tremendous data issues that have made themselves evident in this ap portionment cycle, the elimination of long form citizenship data and the movement of the use of the american community survey leads us with larger predictive errors in determining citizenship allocation. we didn't realize how bad this was until we got the data and starting drawing districts. also citizenship data was not readily available to states when they went to draw districts.

they weren't able to readily access it and make groups of it compared to ten years ago when they worked off the long form. so we have less confidence in our data about citizenship to make precise determinations of citizen apportionment. and these are very real and practical concerns in terms of implementing this as policy. and then finally there's one tremendous legal issue that we elaborate on in text, citizenship apportionment is going to interact with section two and section five. section five assumes you will not change the equal access to the ballot and the equal ability to affect elections of minority voters relative to the status quo. if you move from a total population apportionment to a citizen-based apportionment, one consequence is going to be that because you're expanding the sides of minority districts, especially in latino

populationless, you're going to have greater difficulty making your baseline under section five. the application of citizen data could be retrogress sive in the citizen voting rights act. this merits further consideration. the second issue is, because you need citizens of equal numbers or roughly equal numbers to make districts, it makes it harder to california section two voting rights act remedies because you need to have generally compact minorities who vote cohesively and are capable of -- in order to have an equal opportunity to elect a candidate, you're going to have to reach farther to get these populations if you're using only citizen data and equalizing it across all districts regardless of whether it's a remedy or not. so there are very real incouple brenss to limiting law designed to obtain equal access that

arise under citizen apportionment. this effort, as i indicated, it's very seductive, very interesting because it starts with the assumes of the individual voting right. but it points to a larger political issue when we talk about rights and liberties in the united states in the context of the vote which is that the argument for the representative model which is the one we currently use in apportioning political power articulated by judge kosinski and his partial assent in garza, this approach assumes there are inherent rights to the political process. the assumption of the individual right to vote turns representation to a privilege. it turns it into the assumption of a vote as privilege. in the political firmt of the united states, this notion of

rights as inalienable and inherent verses privileges earned is one of the principle divisions in american politics. i'm not speaking as a legal scholar. i'm a political scientist. i think of this in the context of democratic theory. this seems to be a difference that defines where people and their politics come down in support or opposition to this approach. and it is where the debate will be held, because until the court engages this ambiguity, those individuals who seek to define voting as a privilege, will continue to run at concepts of qualification for apportioning power, qualification for voting based upon the notion of earned privilege rather than inherent rights. >> so thank you. i also wanted to thank diane at

the levin center and scan ford law school for having me here today. what i'd like to talk about is more what in the first panel was talked about as the denominator of the question. i want to talk about who the voters are and who are the people who we're drawing these lines around, particularlywhat those folks look like from the standpoint of their ethno racial identification. so i'm just going to provide you some simple slides to help you visualize some of what was just alluded to in terms of the issues of who votes in the state of california, and to the extent to which who votes actually looks like the population of the state of california. so the first slide summarizes the likely voter population. these data are from the public policy institute of california which defines likely voters not just as people who say they're likely to vote because most people lie when they answer that question. but also they do an index of questions. so people who express political

interests, people who say they've been following the election. people who say they voted in the past and who plan on voting in the future. it's a little better of a measure than saying just do you plan to vote. nonlatino whites in the state of california are over represented among likely voter to the tune of about 25%. i start with the likely voter category because these are the folks not only who are most likely to turn out. these are the folks who are most likely to be polled by polling organizations. many polling organizations focus their polling not only during election years but in other years on those people who are seen as comprising the electorate. if you're not a likely voter, you're less likely to be called by those polling organizations. therefore, represent stifs are less likely to hear about what your interests or needs are. so this is an important category of voters within the american political system. those nonlatino whites are more wealthy and more educated than

the rest of the voting age population in the state of california. you can see african-americans are more or less at parity in their population. what we know from 50 years of political behavior research and political science is that socioeconomic status is the greatest predictor of how you're going to vote. that doesn't completely work with african-americans. many people attribute this to the history of the fight for voting rights and the ways in which that community voting has different value attached to it. so, therefore, people vote more than you would expect given other structural constraints. latinos and asian-americans are significantly underrepresented in this population. some of that underrepresentation is because of the large noncitizen populations in those groups. so among latinos it's about 40%. among asian-americans more or less 50% folks who are voting age are noncitizens and unable to participate in politics.