Written by:                 Tracey Morgan

Date due:                    September 1, 1999

Note Editor:                Margaret Collins


Topic # 1


1.          Statement of the Issue: The issue for this proposed note is whether the EEOC’s administrative regulation, 29 C.F.R. § 1601.28 (a)(2), allowing it to issue an “early right-to-sue” letter to Title VII complainants before the end of the 180-day statutory period for EEOC investigation/negotiation/mediation, is in conflict with Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e 5(b), (f)(1).


2.         Principal Cases:

(1) Rejecting the view that the EEOC is permitted to issue an early right-to-sue letter:

A. Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999) (concluding that “the EEOC’s power to authorize private suits within 180 days undermines its express statutory duty to investigate every charge filed, as well as Congress’s unambiguous policy of encouraging informal resolution of charges up to the 180th day” and holding “ Title VII complainants must wait 180 days after filing charges with the EEOC before they may sue in federal court.” Id. at 1347).


B. Montoya v. Valencia County, 872 F. Supp. 904 (D.N.M. 1994).

            C. Spencer v. Banco Real, S.A., 87 F.R.D. 739 (S.D.N.Y. 1980).


            (2) Upholding the view that the EEOC is permitted to issue an early right to sue letter:

A. Sims v. MacMillan, 22 F.3d 1059 (11th Cir. 1994). This race discrimination case was dismissed by the lower court on the grounds that the EEOC had sole jurisdiction before the 180-day period was up. Id. at 1060. The Eleventh Circuit held that “just as the timely filing of a charge is not a jurisdictional prerequisite, neither is the requirement that the notice be issued after the expiration of 180 days.” Id. at 1061. The court reasoned that, given the EEOC’s backlog of cases, “it is pointless for the aggrieved party to stand by and mark time until the 180-day period expires.” Id.

B. Brown v,. Puget Sound Chapter National Electrical Contracts Association, 732 F.2d 726 (9th Cir.1984).

C. Henschke v. New York Hospital-Cornell Medical Center, 821 F. Supp. 166 (S.D.N.Y. 1993).


3.         Form of Note:

This topic lends itself to an issue-focused note since there is a clear circuit split as well as disagreement among the district courts. The issue has been decided by three circuits and the split was created in 1999 with the D.C. Circuit’s decision in Martini rejecting the validity of an early right-to-sue letter. The two circuits that resolved the issue before Martini had both upheld the issuance of such letters. In addition to the disagreement among the circuits, several district courts have resolved the issue and also reached opposing conclusions.


4.         Facts of Principal Cases:

Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999), is typical of the situation found in the early right-to-sue cases. In Martini, a suit was brought by a former employee of the Federal National Mortgage Association (Fannie Mae) alleging sexual harassment and retaliation in violation of Title VII. The suit was filed only 21 days after the initial filing with the EEOC (upon receipt of a right-to-sue letter from the EEOC). The EEOC issued the early right-to-sue letter because it was clear the agency would not be able to investigate the charges within the 180 day statutory period. Fannie Mae argued that the district court should not grant jurisdiction in the case because the statute’s language requires the EEOC to investigate and either dismiss the charge, propose a negotiated settlement, or at the end of 180 days issue a right-to-sue notice. Since the agency’s right-to-sue letter was premature, the case should be dismissed. The district court disagreed and allowed the suit to proceed. Fannie Mae appealed to the D.C. Circuit. The D.C. Circuit vacated the district court’s decision and remanded with instructions that the plaintiff must wait 159 more days while the EEOC investigates her charges before filing again in district court. Id. at 1350.


5.           Legal Analysis:

The source of the tension between the two views held by the circuits (recognizing or not recognizing the early right-to-sue) appears to derive from both the language of the statute itself and the Congressional purpose. Congress created the EEOC to investigate violations of Title VII in order to prevent a flood of complaints in the courts over workplace discrimination and to encourage mediation and compromise. Id. at 1340. See generally Occidental Life Insurance Co. v. EEOC (“Occidental Life”), 432 U.S. 355 (1977). A secondary purpose served by the EEOC investigation seems to be to create a record for the court in the event that a suit follows. Historically, the Civil Rights Act of 1964 did not allow the EEOC to sue, giving it 30 days to investigate and attempt an informal conciliation. EEOC v. Hearst Corp., 103 F.3d 462, 465 (5th Cir.1997). The Civil Rights Act of 1964 was amended in 1972 to allow the EEOC to investigate for 180 days and to bring suit itself. Id. At tension with the administrative duties of the EEOC (which by saving the court system from a flood of litigation has itself been swamped) is the right of a complainant to a timely disposition of his/her complaint. Thus, Congress provided in the legislation that if the EEOC had not resolved the dispute within 180 days (either by dismissal or a solution), then a private right of action would arise in the plaintiff, who then had 90 days to file suit in federal court. Id at 465-66.

After the Supreme Court stated in dicta in Occidental Life , 432 U.S. 355, 361 (1977), that the 180-day EEOC investigation period was a time when the complainant had no private right of action unless the EEOC dismissed the complaint after investigation, the EEOC (still overburdened and often unable to resolve complaints in 180 days) passed an administrative regulation, 29 C.F.R. § 1601.28(a)(2), which allowed it to issue an early right-to-sue letter if at any time during the 180-day investigative period it determined that it could not resolve the matter within the 180 days. Martini, 178 F.3d at 1339. The early right-to-sue letter would thus take the place of the letter which would ordinarily be issued at the end of the 180-day period if there was no resolution.


Side One: The courts which hold the early right-to-sue letter invalid and refuse jurisdiction of private Title VII suits until after the 180-day period expires rely on the language of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e 5(b), (f) (1). Martini v. Federal National Mortgage Association, 178 F.3d 1336, 1339 (D.C. Cir. 1999). They also rely on dicta in the Supreme Court’s decision in Occidental Life, 432 U.S. at 367-68. Montoya v. Valencia County, 872 F. Supp. 904, 910 (D.N.M. 1994); Spencer v. Banco Real, S.A., 87 F.R.D. 739, 745 (S.D.N.Y. 1980). Finally, they look to the Congressional debates for guidance, emphasizing the need for a cooling-off period when mediation may be possible without resort to the courts. Martini, 178 F.3d at 1340; Montoya, 872 F. Supp. at 909.


Side Two: The circuit and district courts that have upheld the early right-to-sue letter have viewed the 180-day statutory period as a time when the EEOC has sole jurisdiction until it chooses to dismiss the charge or determines that a resolution within 180 days is not possible. Brown v,. Puget Sound Chapter National Electrical Contracts Association, 732 F.2d 726, 730 (9th Cir.1984); Henschke v. New York Hospital-Cornell Medical Center, 821 F. Supp. 166, 172 (S.D.N.Y. 1993). This is in keeping with the Congressional concern that all administrative remedies be exhausted before a judicial remedy is sought, but also guarantees that complainants have a timely resolution of their complaint. Brown, 732 F.2d at 731. As one circuit put it, there is no purpose to be served by simply waiting 180 days when the EEOC knows it will not be able to complete the investigation in that period. Sims v. MacMillan, 22 F.3d 1059, 1061 (11th Cir.1994). In addition to the statutory text and policy considerations reflected in the legislative history, courts that uphold the early right-to-sue letter also rely on dicta in Occidental Life, giving that case a different interpretation than courts that reject the early right-to-sue. Sims, 22 F.3d at 1062; Henschke, 821 F. Supp. at 170.


6.         Important Case Law Other Than Principal Cases:

Occidental Life Insurance Co. v. EEOC (“Occidental Life”), 432 U.S. 355 (1977). This is a sexual discrimination suit brought by the EEOC against Occidental. The Supreme Court held that EEOC enforcement actions are not subject to state statutes of limitations. Id. at 367-72. In dicta, the Court stated that the EEOC may file an action any time during or after the 180-day investigation period, however, the complainant must wait until after the 180 days are up. Id. at 361. Courts have cited this dicta as authority for refusal of jurisdiction based on issuance of an EEOC early right-to-sue letter. See, e.g., Martini, 178 F.3d at 1340.


7.         Law Review Literature:

A. In reviewing the literature on the early right-to-sue, I came upon several useful articles by Robert B. Fitzpatrick. These were continuing legal education articles dealing with the cases that had been decided on the issue and ones that were pending. The articles did not reach a conclusion on the appropriate resolution of the controversy, suggesting instead that the issue may reach the Supreme Court:

Robert B. Fitzpatrick, Premature Right To Sue Notice, SC08 ALI-ABA 101 (1997) (containing a list of cases decided on either side of the issue);

Robert B. Fitzpatrick, Recent Developments in Employment Law, 32 Tort & Ins. L. J. 339 (1997) (surveying employment-related cases, including emerging issues that might reach the Supreme Court);

Robert B. Fitzpatrick, Review of Supreme Court’s Employment and Other Significant Cases and Emerging Employment Issues, SC08 ALI-ABA 1 (1997) (similar to the above article on emerging issues).


B. The only law review article on point is a case comment which gives a very good history of the issue up until 1993. Because it is only a short comment, I don’t consider it preemptive: Valerie J. Pacer, Comment, The Early Right-To-Sue Letter: Has the EEOC Exceeded Its Authority? Henschke v. New York Hospital-Cornell Medical Center 821 F. Supp. 166 (S.D.N.Y. 1993), 72 Wash. U.L.Q. 757 (1994) (arguing that courts should not dismiss early right-to-sue cases).


8.         Evaluation of Topic:

            a.         Appropriateness of the case law for an issue-focused note: There is a distinct split of authority between the Ninth and Eleventh Circuits which recognize the validity of an early right-to-sue letter to grant jurisdiction before the expiration of the 180-day statutory period and the D.C. Circuit which reaches a contrary result. There is also disagreement at the district court level. There are voluminous Congressional transcripts on the debates and various compromises concerning the statute. And there is one Supreme Court case, Occidental Life, which either decides the issue or doesn’t, depending on which side is being argued. Then there is the plain language of the statute, which some consider clear and some consider ambiguous. I believe there is ample material to be discussed in a note.

            b.         Timing: The Martini case was decided very recently. It may be the beginning of a trend, or perhaps it is a dinosaur, soon to give way to practical reality. I think Robert Fitzpatrick (see articles above) may well be right that the issue is ripe for Supreme Court scrutiny, however, no petition for certiorari has been filed in Martini.

            c.         Preemption: None of the articles I’ve found would preempt a longer, more in-depth investigation of the topic.

            d.         Interest: For a plaintiff to get a letter from the EEOC granting the right to go to court and then for that plaintiff to have the case dismissed for lack of jurisdiction based on that letter seems a violation of the basic principles of the Civil Rights Act of 1964, which mandates fair treatment and a right to a timely resolution of an employment discrimination complaint. This is a problem that has social and political ramifications.

            e.         Scope of the legal issue: This is a very narrow procedural issue involving a conflict between a statute and a regulation. What makes it somewhat broader in scope, however, are the underlying social policy ramifications.


9.         Weighing the Factors:

I believe there is ample material for a note. In addition there are no problems with timing or preemption.


B. Topic #2


1.         Statement of the Issue:

In Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court in a plurality opinion described a test for determining the validity of claims of vote dilution under Section 2 of the Voting Rights Act of 1965 (as amended), 42 U.S.C. §1973. Since then, the circuits have struggled with issues of methodology in applying the third prong of that test, which assesses whether a majority voting bloc usually defeats the “minority’s preferred candidate” (MPC). The issue that remains unresolved is what criteria a court should use to determine which candidates are “minority preferred” in order to determine if those candidates are usually defeated by the bloc voting of white voters.


2.         Principal Cases:

(1) Courts using an objective test to determine which candidates are minority preferred:

A. Ruiz v. City of Santa Maria, 160 F.3d 543 (9th Cir.1998).

B. Lewis v. Alamance County, 99 F.3d 600 (4th Cir.1996), cert. denied, 520 U.S. 1229 (1997).

            C. Uno v. City of Holyoke, 72 F.3d 973 (1st Cir.1995).

            D. NAACP v. City of Niagara Falls, 65 F.3d 1002 (2d Cir.1995).

            E. Clarke v. City of Cincinnati, 40 F.3d 807 (6th Cir.1994).


(2) Courts using a more subjective test to determine which candidates are minority preferred and examining the “totality of circumstances” and even considering anecdotal evidence of minority community support:

            A. Jenkins v. Manning, 116 F.3d 685 (3d Cir.1997).

B. Sanchez v. Colorado, 97 F.3d 1303 (10th Cir.1996), cert. denied, 520 U.S. 1229 (1997).

            C. Harvell v. Blytheville School District # 5, 71 F.3d 1382 (8th Cir.1995).

            D Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc).


3.         Form of Note:

The note written on this topic would be an issue-focused note because most circuits have resolved the issuing reaching conflicting results. Although the cases could logically be divided into two main groups, using an objective approach or a subjective (“totality of circumstances”) approach to determine the identity of the “minority’s preferred candidates”(MPCs), there are gradations of objectivity even between those circuits which are in basic agreement. In fact, the circuits don’t even agree on what constitutes an accurate measurement of the minority group’s voting patterns or which elections are relevant to the inquiry. To make matters more difficult, the statute itself appears to be contradictory on its face, 42 U.S.C.§1973(b), since it was the result of a Senate compromise, although the Senate Judiciary Committee has given some further guidance in the form of a list of factors to be considered. Gingles, 478 U.S. at 36-37, 44-45; Ruiz, 160 F.3d at n.15.


4.         Facts of Principal Cases:

In all the principal cases, a suit is brought by a group of minority voters under the Voting Rights Act of 1965 alleging vote dilution. In all these cases, the electoral system, whether it is for city council or school board, relies in whole or in part on an at-large system of voting. Under the system, it has been difficult, if not impossible, for minority voters to elect a minority representative despite the fact that they comprise a substantial percentage of the electorate. In Ruiz, for example, at the time of the suit, Hispanics comprised nearly half of the city’s population and 28.7% of the voting age population. Prior to 1994 (the action was initiated in 1992) no Hispanic had ever been elected mayor or to the city council. Twelve Hispanic candidates ran and lost during the period from 1972 to 1992. All but two finished last.


5.         Legal Analysis:

Side One: Under the objective test, a court identifies the minority’s preferred candidates by reviewing data from past elections and determining the candidates who received the most support from the minority voters claiming vote dilution. Controversy exists under this system over whether the results of elections in which all candidates are white are relevant in this inquiry or not. Some courts argue that only if a minority candidate is one of the candidates running for office can electoral statistics identify the minority preferred candidate. Other disagreements under this approach focus on what degree of electoral support a candidate needs to receive in order to be minority preferred. Some courts require more than 50 % support for a candidate to receive this designation. Other courts simply look for the candidate who received the highest level of support among minority voters.

In adopting an objective test to determine the MPC under the third Gingles prong, the Ruiz court specifically rejects the position that the MPC must be a member of the minority group. Id. at 551. Beyond rejecting this system of “electoral apartheid,” Niagra Falls, 65 F.3d at 1016, Judge Wallace adopts an objective test based on his reading of the purpose behind the Gingles test, particularly emphasizing remarks in the opinions of Justices O’Connor and White. Moreover, all the courts that prefer a bright-line test view such a test as establishing a more judicially manageable task. By contrast, they believe that a subjective test is a “dubius judicial task, and one that can degenerate into racial stereotyping of a high order.” Niagra Falls, 65 F.3d at 1018. In addition, Judge Wallace, in Ruiz, warned of other problems that using a subjective approach in the analysis of MPC might create. In his view, ”Extrinsic factors relied on in the “totality of circumstances” type of analysis might not show how all minority voters feel, but only political activists. 160 F.3d at 552. He stopped short, however, of condoning the extremely objective test of Niagara Falls, 65 F.3d at 1019, which requires a MPC to receive at least 50% of the minority vote, holding instead that “a candidate who receives sufficient votes to be elected if the election were held only among the minority group in question qualifies as minority-preferred,” Ruiz, 160 F.3d at 552. He does agree with the Niagara Falls court that “a court need not treat the candidate as minority-preferred when another candidate receiving greater support in the primary failed to reach the general election.” Niagara Falls, 65 F.3d at 1019. Finally, on the issue of whether elections involving only non-minority candidates should be as relevant as elections with candidates of different races, the Ruiz court (like most other circuits) holds that such elections are relevant to the inquiry, but that “[a]n election pitting a minority against a non-minority ... is considered more probative and accorded more weight.” Ruiz, 160 F.3d at 552.


Side Two: Courts that refuse to rely only on election results argue that their position is justified by Justice Brennan’s opinion in Gingles. 478 U.S. at 67-68. In that opinion, he makes clear that the purpose of the third prong inquiry is to discern whether or not white bloc voting has prevented the minority’s preferred candidate from being elected to office. In the view of supporters of the subjective approach, objective analysis of election voting patterns may not always accurately identify the candidate truly preferred by minority voters. Jenkins v. Manning, 116 F.3d 685, 699 (3d Cir. 1997). Instead only by looking at a variety of factors such as the views of politically active minority voters, the degree of support a candidate enjoys among minority voters (the fact that one candidate slightly edged out another in electoral support with no candidate winning minority support by more than a slim margin suggests that none of the candidates running for office is minority preferred), voter participation levels of minority voters (if few minority voters vote at all compared to other elections that fact may suggest that none of the candidates running for office is minority preferred) and other related factors, can the minority’s preferred candidate be accurately identified. Nipper v. Smith, 39 F.3d 1494, 1516 (11th Cir. 1994) (en banc). This approach is strongly supported by the list of factors contained in the Senate Judiciary Report on the Voting Rights Act Amendments of 1982. Sanchez v. Colorado, 97 F.3d 1303, 1317 (10th Cir.1996), cert. denied, 520 U.S. 1229 (1997). It is also supported by the Supreme Court’s opinion in Growe v. Emison, 507 U.S. 25 (1993), a post-Gingles case discussing the Gingles test. Nipper v. Smith, 39 F.3d at 1513.


6.         Important Case Law Other Than Principal Cases:

Thornburg v. Gingles, 478 U.S. 30 (1986), is the Supreme Court’s primary case on vote dilution claims under the Voting Rights Act of 1965, as amended , 42 U.S.C. § 1973. This case involved a class-action challenge by African-American voters to the multi-member legislative districts in North Carolina, which under the North Carolina Constitution were required to keep counties intact in the redistricting process. The Supreme Court found: 1) historic procedural impediments to minority voters (poll tax, anti-bullet vote provisions, literacy tests, etc.); 2) historic discrimination against African-Americans in education, housing, employment and health services; 3) some current procedural impediments (majority vote requirement in primary); 4) overt racial appeals in political campaigns; 5) lack of proportionality in election results. Gingles, 478 U.S. 30 at 38-40. The Court also called into question the results of the 1982 election, in which a number of Black candidates were elected to the North Carolina House of Representatives, since the lawsuit that was pending at the time might have been a “special circumstance” that influenced the election, making it atypical. Id. at 41. In analyzing election data, the district court had used two types of statistical analyses of a number of elections over a period of time. Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984). The Supreme Court, in agreeing that there was a violation of Section 2 in all but one district, set out a test which was derived from the law itself, coupled with the Court’s interpretation of legislative intent, including a list of factors set out in a Judiciary Committee Report, Gingles, 478 U.S. at 36-37. See also S. Rep. No. 97-417, 97th Cong. 2nd Sess. 28 (1982). The test had two phases to it, and phase one, which assessed the existence of racially polarized elections, had three requirements: 1) a demonstration by the minority group of sufficient size and geographic compactness so that a single-member minority district could be drawn; 2) a showing by the group of political cohesiveness; 3) a demonstration that the white majority votes sufficiently as a bloc to usually defeat the “minority’s preferred candidate.” Gingles, 478 U.S. at 49-51. The second phase of the test involved looking at the “totality of circumstances” in the form of the non-exclusive Senate Judiciary Committee list of factors to be considered (historical discrimination, etc.). Id. at 44-46. Gingles was a plurality opinion, with four justices advocating that the race of the voter but not the candidate should be considered in deciding which candidates were the minority group’s preferred candidates. Id. at 67-68.


In addition to Gingles, a series of recent Supreme Court cases on the subject of racial gerrymandering has entered into an already complicated equation by restricting how race can be used in redistricting. See Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt (“Shaw II”), 517 U.S. 899 (1996); Shaw v. Reno (“Shaw I”), 509 U.S. 630 (1993). These cases may have implications for the concept of a minority preferred candidate since they move the Court closer to a standard of color-blindness under the Equal Protection guarantee.


7.         Law Review Literature:

There are literally hundreds of law review articles on the general subjects of The Voting Rights Act of 1965 (as amended) and on racial gerrymandering. Over 500 articles in periodicals and books refer to the Gingles decision, 478 U.S. 30. There are also many articles that discuss at least briefly “minority’s preferred candidates” in the context of Voting Rights Act claims and redistricting. I have described below the several articles specifically on the topic of “minority’s preferred candidates,” although most were written within a few years of Gingles, before the trio of Supreme Court cases on gerrymandering changed the rules, see Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt (“Shaw II”), 517 U.S. 899 (1996); Shaw v. Reno (“Shaw I”), 509 U.S. 630 (1993), and also before the most recent circuit court definitions of the term:

A. Scott Yut, Comment, Using Candidate Race to Define Minority-Preferred Candidates Under Section 2 of the Voting Rights Act, 1995 U. Chi. Legal F. 571 (1995) (advocating a test for MPC which gives great weight to statistics, using a candidate’s race only in “close cases,” but covering the circuit split only from the perspective of the race of the candidate).

B. Larry J. H. Liu, Note, The Minority-Preferred Candidate in Thornburg v. Gingles: An Argument For Color-Blind Voting, 8 Notre Dame J.L. Ethics & Pub. Pol’y 631 (1994) (advocating a “color-blind” application of the “Senate factors” to determine MPC.) Again, race of the candidate as a criteria for determining MPC is the focus of this article.

C. Evelyn Elayne Shockley, Note, Voting Rights Act Section 2: Racially Polarized Voting and The Minority Community’s Representative of Choice, 89 Mich. L. Rev. 1038 (1991) (advocating a “minority sponsorship” approach to determining the MPC). This article is very dated.

D. Sushma Soni, Note, Defining the Minority-Preferred Candidate Under Section 2, Yale L.J. 1651 (1990) (rejecting Justice Brennan’s “race neutral” approach in the Gingles plurality opinion and advocating a “modified race-conscious” approach to determining the MPC). This is also very dated.


8.         Evaluation of Topic:

            1.         Appropriateness of the case law for an issue-focused note: There is a distinct circuit split between objective and subjective methodology in determining the “minority’s preferred candidate.” Even among the circuits that basically agree, there are still differences. The cases, therefore, would support a lengthy discussion of the issue.

            2.         Timing: Thus far, the Supreme Court has shown no inclination to review the disparate holdings of the various circuits, denying certiorari whenever review was sought. Most circuits have already decided the issue en banc. However, given the evolution of Supreme Court thinking on race during the 13 years since Gingles was decided, I believe there is some possibility that they might revisit those issues.

            3.         Preemption: This is a harder question. There are several law review articles, most of them outdated, on the topic. I have not found, however, anything focusing narrowly on the specific test methodology. Virtually all articles differentiate the circuits according to how much (or little) they are willing to consider the race of the candidate.

            4.         Interest: Racial discrimination is the “stuff of newspaper headlines.” A case I will discuss (especially since I believe there was an error of law in the final decision) is a First Circuit case, decided in Springfield and concerning Holyoke. My focus will be narrower than the many articles already written, but the sheer volume of articles citing Gingles (over 500) would seem to indicate continuing interest in the topic.

            5.         Scope of the legal issue: My treatment of the topic could be broad or narrow. A balance should be easily possible.


9.         Weighing the Factors:

The Voting Rights Act of 1965, with the debates it has spurred concerning redistricting and racially polarized voting, is one of the most written-about topics in law reviews and journals. The statute itself was a compromise which appears on its face self-contradictory, the guidance from the circuit courts on vote dilution cases has been profuse but confusing, and the Supreme Court has been slowly moving away from the philosophy of Gingles as its membership changes. Certainly there is room for an article on the narrow topic of the third prong of the test, covering the most recent cases and perhaps speculating where the courts are headed. I think there is a likelihood that others will write on the topic in the next year, but probably with a slightly different focus. Thus far there is no preemption of the narrow issue of the objective test. This is an interesting issue with much to say about it. The only real problem for the writer will be the voluminous amounts of materials to be read in the process of zeroing in on the narrower issue.


C. Comparison of Topic #1 and Topic #2.

            In comparing the two topics I will look at the strengths and weaknesses that both topics have in common before I examine their differences. Finally, I will explain my own personal criteria for choosing my topic.


1.         Both issues are sufficiently narrow. On the issue concerning how to identify a MPC, the narrow issue is whether an objective or subjective test is most appropriate for determining the “minority’s preferred candidate” in a Voting Rights action. In the controversy over early right-to-sue letters, the issue is the validity of the “early right-to-sue” letter issued by the EEOC under its administrative regulations, which may be in conflict with the statute under which the EEOC operates.

2.         Both issues pose a real and ongoing controversy. Most circuits have weighed in on the issue of the minority’s preferred candidate definition, and they have conflicting interpretations of the Supreme Court plurality decision in Gingles. Some circuits and district courts have ruled on the validity of the EEOC’s early right-to-sue letter, and reached conflicting decisions offering a number of different explanations for the results they have reached.

3.         There is sufficient background material to discuss each issue thoroughly. In both situations, the basis of the conflict starts with the statutes involved, each with legislative history and much Congressional debate; both have ambiguous Supreme Court rulings spurring many conflicting lower court decisions; and both involve important social issues that have been written about by professionals other than law professors.

4.         The issues involve important social and political considerations, making them of interest to a broad audience. While the narrower issues involving tests and definitions may not be of much interest except to practitioners, the results of the actual application of these interpretations will influence plaintiffs bringing suit over important two social issues: fairness in the workplace and minority representation in government.


1.         Because they are important, unresolved issues, they are ripe for a Supreme Court challenge and also likely to generate interest among writers and scholars. This may mean that in either case, during the course of writing a case note, someone else may publish first or a Supreme Court grant of certiorari may make the issue unwriteable.


1.         On the issue of the early right-to-sue letter, new regulations or new legislation (none is pending to my knowledge) could intervene.

2.         On the issue of how to identify the minority’s preferred candidate, there is a great deal of literature out there already on the Voting Rights Act of 1964, although the focus is different, primarily looking at how courts should treat race in their analysis of the issue.


            All things being equal – and I believe they are at least equivalent – I would choose to write about the minority’s preferred candidate for several reasons. First, as a political activist, I have a personal interest in seeing that the philosophy behind the Voting Rights Act of 1964 becomes a reality. Second, I believe this is the more difficult of the two issues, and I like a good challenge. Finally, I believe my writing about this issue might actually have some social value.


D. Recommendation

            I recommend the issue of how to identify the “minority’s preferred candidates” under prong 3 of the Gingles test.