Roberts' questions and conclusion appear to be taken from a census survey cited in a lower court dissent."A lower court dissent" is a funny way to refer to the D.C. Circuit Court of Appeals case that is under review! Roberts pulled something out of the case that the Court is working on. Under the circumstances, it would be bizarre if the Solicitor General didn't get the reference. (Check the transcript PDF at page 32.) Tapping material in the lower court's opinion is predictable and perfectly mundane. Totenberg glosses over that to stress the data underlying the Court of Appeals judge's opinion, which, she tells us, comes from Census Bureau data that have such a wide margin of error that it doesn't really mean much. Well, if that's such an important point, why didn't the Solicitor General say that in the oral argument?! Here's what we got instead:
CHIEF JUSTICE ROBERTS: [D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?Maybe saying "I do not know," Verrilli secretly meant that the Census data was so rough that no one could really "know" such facts, but the transcript shows a blank statement of lack of knowledge and an effort to shift away to the subject of what findings Congress relied on. If the statement in the dissenting opinion (written by Stephen F. Williams) was so unreliable, Verrilli should have shot it down neatly and quickly.
GENERAL VERRILLI: I do not.
CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.
GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -
CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?
GENERAL VERRILLI: I do not know that.
CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.
He didn't. Totenberg is doing cleanup work. She went out and talked to "Census officials" who told her that "these numbers are simply not reliable for state-by-state comparisons because of the high margins of error in some states." That's useful to know, as the issue in the case has to do with how closely the Voting Right Act tracks the actual problem of voting rights violations in the states.
But "Chief Justice Misconstrued Census Data"?! Why doesn't NPR care about its reputation for journalism? What an embarrassing display of eagerness to discredit Roberts! Totenberg's article isn't about Roberts misconstruing anything. It's about the relatively low value of Census data that Judge Williams used in his dissenting opinion. If that material was so terrible, Verrilli fell short at oral argument.
ADDED: Pepperdine lawprof Derek T. Muller emails noting Totenberg's focus on 2010 census data, when the relevant data — in the Court of Appeals case and for the purposes of the 2006 reenactment — is the 2004 data:
If I may, both Ms. Totenberg and [Massachusetts Secretary of State William F.] Galvin are either intentionally misrepresenting Chief Justice Roberts's (and the lower court's dissenting opinion's) data, or they are unaware of an important distinction they've elided over.Again: embarrassing.
For Chief Justice Roberts (I think), the concern is the coverage formula. And the coverage formula was reauthorized in 2006. And the last available voter data was 2004. It's unsurprising, then, that the lower court's dissenting opinion, at 11-14, look[s] at the voting data from 2004. It specifically refers to this Census data,Table 4a.
Within that table, one can see that the turnout rate for African-Americans in Mississippi in 2004 was 66.8%, MoE 5.2. In Massachusetts, it was 43.5%, MoE 9.6. So assuming one wants to stretch the MoE, the low end of MS would have been 61.6%, and the high end of MA would have been 53.1%. Ms. Totenberg's calculation to "factor in the margins of error at their extremes" would result in the same confidence that MA African-American turnout was worse than MS.
As to the citizen voting-age population question, one can run a quick check in the MA data to see that it would rise from 43.5% to 46.5%, while MS would remain largely the same — and I'm fairly confident that even a change in the MoE would not put MA in a statistical range in which it would be better than MS.
Now, this is important data because *it is 2004 data*, the data that Congress would have used (and, taking into account time and space, absent a DeLorean, *could* have used) when it reauthorized the coverage formula.
Ms. Totenberg and Mr. Galvin use the 2010 Census data, which is not the data that Congress would have had at its disposal in reauthorization.
Mr. Galvin "assumes" it is the 2010 data Chief Justice Roberts discusses, and is not terribly careful if he says the "only thing we could find" was the 2010 Census, or that "academics" at other institutions "could find no record," when the record *is in the lower court dissent itself*.
Ms. Totenberg, to her credit, links to the lower court dissent--but then ignores the actual 2004 Census data cited, instead choosing to cite the 2010 Census data, which was not used in the lower court dissent (and which, I assume, was not cited by Chief Justice Roberts).
Now, granted, I understand that one could argue that the question is too narrow, that citing solely the returns from a single election (i.e., 2004) is not enough to sink the coverage formula, that the effectiveness and turnout rates today are important in the Court's analysis, etc.
But, these stories glibly rejecting a point Chief Justice Roberts made at oral argument by using a point he didn't make do not advance the conversation in any meaningful way.
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