The empirical research of Professor Douglas Spencer, who joined the Law School faculty this fall after earning a J.D./Ph.D. at UC Berkeley, is already intervening in key debates about election law.
Spencer’s most recent paper (with Professor Christopher Elmendorf), The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County, forthcoming in the California Law Review in 2014, takes on the U.S. Supreme Court decision that struck down a key provision of the Voting Rights Act. The Supreme Court found that there was insufficient evidence that the jurisdictions targeted for preclearance were in fact more likely to engage in voter discrimination.
By using recent data on racial stereotyping and a newly developed statistical method, Spencer and Elmendorf gathered such evidence. “Our central finding,” says Spencer, “is that the recently invalidated coverage formula actually did a remarkably good job of picking out states with residents who subscribe to negative stereotypes of African Americans. And these negative stereotypes actually correlate quite strongly with individual political preferences.” Spencer and Elmendorf propose that as Congress considers whether and how to enact new preclearance requirements, they use these results, and update them prospectively as new geographic data on voter discrimination emerges. Their findings have already been discussed in The New York Times, the Nation, and Slate.
In another paper (with Professor Abby Wood), Citizens United, States Divided: An Empirical Study of Independent Political Spending, forthcoming in the Indiana Law Journal in 2014, Spencer uses state level data to test the effect of Citizens United on independent political spending. Before Citizens United, federal law banned independent corporate expenditures in all federal elections, about half of the states also banned such expenditures in state races while about half did not. Citizens United invalidated those state level bans. By comparing expenditures after Citizens United in the two sets of states, Spencer and Wood isolated the effect of the Court’s decision from the other factors increasing election spending. They found that independent spending in states that previously banned corporate contributions essentially doubled as compared to the states that had no such bans — a tremendous increase that many had predicted. However, the increased spending wasn’t mostly from massive donations, but instead from mid-sized expenditures — in the $10,000 to $20,000 range — by nonprofit organizations that were not required to disclose the identity of their donors. “As it turns out,” Spencer notes, “Citizens United has had troubling consequences, just not at all in the way that scholars and pundits predicted. That so much money has been driven underground, and remains anonymous, is particularly ironic given the Supreme Court’s near unanimous support for disclosure in Citizens United — the forgotten, but perhaps most important, part of the decision.”