When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

NPR's embarrassing headline: "In Voting Rights Arguments, Chief Justice Misconstrued Census Data."

The article is by Nina Totenberg, who presumably didn't write the headline, and it makes a somewhat abstruse point about the basis for a set of questions that the Chief Justice asked at oral argument.

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? 

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. 

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. 

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.

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.

Again: embarrassing.

Massachusetts SOS miffed that John Roberts said Massachusetts has "the worst ratio of white voter turnout to African-American voter turnout."

The Chief Justice was questioning  Solicitor General Donald Verrilli in the oral argument about the federal Voting Rights Act (which treats some states differently from others based on voting statistics from 1972). The Chief also pointed out that Mississippi has the "best" ratio.

Massachusetts Secretary of State William Galvin defends his state:

“It’s just disturbing that the chief justice of the United States would spew this kind of misinformation.... He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks...We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

The 2010 tables show that Massachusetts does have a high discrepancy between turnout of white and black voters, but is in line with several other states, including Minnesota, Kansas and Washington, which actually has a wider ratio. The states are also similar on registration numbers. Additionally, the margin of error on each of these states’ data is over 10 percentage points, and many states on the list had populations of blacks so small, data wasn’t even available.

I'm sure the Chief was relying on something. Anyone know what it was? In any case, the basic point is intact: There's a disconnect between the problem the act seeks to rectify and the conditions among the states today. 

ADDED: Roberts was apparently referring to material in the dissenting opinion in the court below (the D.C. Circuit Court of Appeals).  The underlying data is from the Census Bureau. Nina Totenberg having talked to "Census officials" who explain why their data is unreliable, writes an article that I critique here.

"Supreme Court Weighs Future Of Voting Rights Act."

Nina Totenberg reports on the case that is up for oral argument this morning.

The provision at issue in Wednesday's case applies only to specific parts of the country where discriminatory voting procedures were once rampant. It covers all of nine states, mainly in the South, plus parts of seven other states. To head off discriminatory voting procedures before they happen, the law requires covered areas to get approval from federal officials before changes can take place. So, for example, if an Alabama town wants to change polling places, or to change from an elected board to an appointed board, or to annex another part of the county, it has to first get permission from the Justice Department or a federal court in Washington, D.C.

Congress came up with the formula in 1965 to cover areas of the country that had a history of blatant, even violent, discrimination in voting; but the formula has not been changed since 1975, and it still relies on election data from 1972. That's the crux of the issue before the court now: Whether times have changed so much that Congress, in reauthorizing the law in 2006 without updating the formula, violated the Constitution.

The congressional vote in 2006 was overwhelmingly and astonishingly bipartisan, with the Senate voting unanimously to extend the law and the House voting 390-to-33.

Are you so easily astonished? Politically, it's hard to vote against this law, with its dramatic historic momentum. But the Court needs to address problem of treating some states differently from others, relying on a formula that uses statistics from 1972.

Under the law, any jurisdiction with a clean record for 10 years could bail out, and some have done just that. There is also a provision to bail in jurisdictions that can be shown in court to have consistently misbehaved. But basically the law was unchanged — all the areas that had been subject to preclearance before 2006 still were — and Congress simply extended it for another 25 years.