ICWA Tip: Southwest Voter Registration Educ. Project v. Shelly

Time again to help out the tired, poor, huddled masses in the NYU Lawyering program.

If you’re having trouble with the substantial likelihood of success section of your memo, check out Southwest Voter Registration Educ. Project v. Shelly, 344 F.3d 914 (9th Cir. 2003).

In a nutshell, plaintiffs argue that the alleged disparate impact of punch-card ballots on minority voters violated Section 2 of the Act, 42 U.S.C. § 1973. Plaintiffs allege that minority voters disproportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate. To establish a Section 2 violation, plaintiffs need only demonstrate “a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir.1997) (internal quotation marks omitted). There is significant dispute in the record, however, as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they have shown a strong likelihood.

Here we basically have a discussion where success on the merits would have been pretty easy.  Plaintiff only needed to show a casual connection between voting practice and a discriminatory result, which they seemed to have evidence of.  However, “significant dispute” in the record was enough to take the plaintiffs down to a mere possibility of success, not a strong likelihood.

This should be a sort of no-brainer for the State.  Just make a good faith showing that you have some reasonably chance of winning on the merits and this precedent will take you far.  As for the Tribe, I don’t know.  Just be prepared for another hurdle.

Go State! Beat Tribe!

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