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7 Election L.J. 1 (2008)

handle is hein.journals/enlwjr7 and id is 1 raw text is: ELECTION LAW JOURNAL Volume 7, Number 1, 2008 © Mary Ann Liebert, Inc. DOI: 10.1089/elj.2008.7101 Editorial The Party Line DANIEL H. LOWENSTEIN and RICHARD L. HASEN T HE ARTICLES IN this issue deal with an on- going Voting Rights Act controversy; the troublesome 2006 election in Florida's 13th con- gressional district, in which a large number of missing votes in one county seems to have affected the outcome; and the statutory inter- pretation of ballot initiatives. In Georgia v. Ashcroft, the Supreme Court surprised many voting rights practitioners by ruling that in the application of the nonretro- gression test under Section 5 of the Voting Rights Act, a jurisdiction could rely on new coalitional or influence districts to offset a possible decline in the number of majority-mi- nority districts. The ruling was controversial and Congress sought to overturn it by the so- called Georgia v. Ashcroft fix inserted into the Voting Rights Act when the Act was renewed in 2006. As David Canon points out in his ar- ticle in this issue, the controversy over Georgia v. Ashcroft cannot yet be consigned entirely to the history books. Because the statutory lan- guage of the fix is by no means clear, the pre- cise role, if any, of coalitional and influence dis- tricts in Section 5 preclearance proceedings remains to be determined. Furthermore, the underlying policy controversy will continue to be debated by politicians and scholars. Canon employs the empirical tools of political science and concludes that, at least in the case of the Georgia Senate redistricting that led to Georgia v. Ashcroft, the coalitional and influence dis- tricts fell far short of majority-minority districts in providing representational benefits to African Americans. Canon does find benefits that could offset the loss of majority-minority districts if that loss increases the chances that the party favored by African Americans will control the legislative chamber. As if Florida had not seen its share of elec- tion law controversies, the 2006 midterm con- gressional election brought a new one. In Florida's 13th congressional district, the Re- publican candidate Vern Buchanan prevailed over the Democratic candidate Christine Jen- nings by a mere 369 votes. But the election, con- ducted using electronic voting machines, pro- duced an inordinate number of undervotes in the race: approximately 21,000 out of approxi- mately 240,000 votes cast showed no recorded vote in the congressional race. In this issue, Laurin Frisina, Michael C. Herron, James Honaker, and Jeffrey B. Lewis present evidence that the high undervote rate was caused by the ballot format presented to a subset of FL-13 vot- ers. The machines in Sarasota County dis- played a single touchscreen page featuring both the congressional race and the guberna- torial race, and the authors suggest that one or more factors related to the ballot layout led many voters to skip casting a vote in the con- gressional contest. The authors also use statis- tical techniques to argue that Jennings would have won the congressional district had there been no such ballot formatting effect. During the last decade or so, there has been a spirited debate over the proper methods for resolving questions of statutory interpretation when the statute was adopted by direct democ- racy, rather than the more usual enactment by the legislature followed by the governor's sig- nature. In this issue, Ethan Leib insists on a dis- 1

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