Undergraduate Law Journal Spring 2023 - 2023 Journal - Volume 3
2023 EXECUTIVE BOARD HANNAH CHEVES EDITOR IN CHIEF REESE ROSENTAL SAPORITO EDITOR IN CHIEF CLAIRE LU SENIOR EDITOR TESS BALLIS SENIOR EDITOR ELIZABETH BETTS MANAGING DIRECTOR OF THE JOURNAL
CONT. PATRICK ALES FORUM EXECUTIVE EDITOR EMILY YANG FORUM EXECUTIVE EDITOR SAM KLISS PROGRAMMING CHAIR DANIEL WOLF PROGRAMMING CHAIR KAITLYN SEESE MANAGING EDITOR OF THE JOURNAL JULIA FILIMOWICZ TREASURER RAYYANA HASSAN CREATIVE DIRECTOR JOHN PERALES JR. HEAD OF PODCASTING
2023 STAFF EDITORIAL MAAYAN ABOUZAGLO BRIAN ALBERT VIVIAN BUI ANGIE CHUNG GRACE COOLIDGE RENAN DENNIG ALEXANDRA DICKERMAN JONAH ELKOWITZ ELENA ISABELLE FABIAN MAGGIE FARINA ISABEL GORTNER ELISA GUO ABY JAMES JOY KANG SHINY HAN CLARK MAHONEY CHRISTINE MAO LEILA NARISETTI MICHAH SANDY SOPHIA PENNEX JUNHO SON ANNA WESTFALL NICOLE TAN WILLIAM TONG CONNOR TOOMAN LUKE VREDENBURG MIA XIA JESSICA ZENG ALEXANDRE BRUNET KATHERINE FERREIRA O'CONNOR MICHAEL CRYSTAL AMY KIM CLAIR QUAN JOHANNA TAM KAITLYN SHI HAMNAH MALIK PROGRAMMING DYLAN JOST KIRAN SHETH SARAH ABARA TALIB BECKTEMA-GOSS KADEN EVANS-SHAW MAIA SMITH HARRISON ISRAEL
CONT. STAFF WRITERS WYATT BROWDY SAM BULL EDGAR CARVALHO ANAND CHOUDHARY REGAN CORNELIUS NOAH COYLE LORETTA DAVID KATE DRUM CLARY DOYLE LORENZO GARCIA ILIANA GARNER MOLLIE GUBA SABRINA HAYES CAITLIN JIMMAR JOVANA LAKIĆ ALEX LAWSON ISABEL MACHLAB ISABEL NIEMER SAMANTHA POWERS AVIGNA RAMACHANDRAN LAILA SKRAMSTAD CHLOE SHAH ALEX SUDMAN DARYA TADLAOUI SARAH WEJMAN SARAH WACHS JANIE XU LUKE ZSCHEILE ELIZABETH BULAT ANNA DELLIT NEHA RAMANI ALICE HURLEY RAYMOND CHEN CARMINE CULTRONA JEFFREY POPELL MJ SASSE CREATIVE ALEX CONVERSE LILAH GOLDBERG ELLIE SCHNUR AVA PREZANT ERIN POE
Dear Reader, On behalf of the editorial staff of the Northwestern Undergraduate Law Journal, we are pleased to present our third edition of the journal. The Northwestern Undergraduate Law Journal was created to give undergraduate students at our institution, as well as across the country, the ability to engage in legal research and to have their work published at the undergraduate level. Since its inception three years ago, the journal staff has grown to over 100 members and, in line with our mission, has provided a space for our members and for the broader community to engage with legal questions and to broaden and encourage their interest in law. The third edition of our journal includes submissions from students across the country, and we’re incredibly proud to be working with these authors this year. We are thrilled at the opportunity to be able to engage with their work, and we look forward to you being able to do the same. We cannot express enough the gratitude we have for all who are involved in the process of making this journal come to life. This journal is the result of tireless work from all of our teams: Editorial, Creative, Programming, Forum, Journal, Podcasting, and our Executive Board. Without these teams, this journal would not have been possible. We want to give a special thanks to the members of our executive board, as well as the journal managing directors for all their hard work this year and on the journal. We couldn’t do this without every single one of them. Please enjoy!
CONTENTS Letter from the Editors Analyzing the Legal Grounds By Which Russia Waged War Against Ukraine In February 2022 Representing AAPI Voters: A Look at Representative Behavior and the COVID-19 Hate Crimes Act Schmitt and Hayek v. Citizens United: Unintended Consequences of Citizens United for Democracy and Capitalism The Civil Rights Act of 1964 Is Not Enough 6 8 25 51 86
Analyzing the Legal Grounds by Which Russia Waged War Against Ukraine in February 2022
Analyzing the Legal Grounds by Which Russia Waged War Against Ukraine in February 2022 Ayanfe-Oluwa Idowu
Introduction On the 24th of February 2022, the world held its breath as Russian President Vladimir Putin threw Ukraine into peril under the guise of self-defense and in a bid to achieve self-determination for the Donbas. According to his address, this “special military operation” was intended to secure the rights of Russian speakers and ethnic Russians suffering from a genocide perpetrated by the Ukrainian regime.1 This essay argues that the grounds by which Russia launched a bloody, bitter battle against Ukraine in February 2022 are unjustifiable by inviolable principles of international law. Firstly, Russia sought to justify its attack on the basis of self-defense as enshrined in Article 51 of the UN Charter. However, this essay will show that Article 51 does not apply because the surrounding circumstances fail to meet the required conditions. The second ground was on the basis of achieving self-determination; this essay will, however, show that this claim to self-determination lacks weight when screened through international law. On the whole, this essay seeks to argue that the grounds by which Russia launched its offensive against Ukraine are unmerited, unjustifiable, and are purely a way to put international law into disrepute. Use of Force in International Law Generally, international law frowns against the use of force by one state against another. As Article 2(4) of the UN Charter reads: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the Purposes of the United Nations. 2 2 Article 2(4), Charter of the United Nations. 1 “Address by the President of the Russian Federation,” 24 February 2022.
In fact, some scholars argue that this prohibition has become a salient rule of jus cogens from which no derogation is permitted.3 At the same time, although international custom prohibits the external use of force, it is important to consider unique exceptions to this rule. Whether Russia’s invasion can be justified by any of these exceptions will be the subject of the ensuing paragraphs. Ground 1: Self-defense against armed attack The first ground permitting derogation of the prohibition of force is if the act is committed in self-defense. Article 51 of the UN Charter embodies this principle where it states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. 4 Notwithstanding, there are two criteria to be met before the right of self-defense can hold: necessity and proportionality. 5 Furthermore, it was on the premise of Article 51 that Russian President Vladimir Putin sought to justify his “special military operation” against Ukraine.6 As expressed in Putin’s speech on the 24th of February 2022, Russia’s military operation was in response to perceived threats against its territorial sovereignty- the eastward expansion of NATO.7 According to Putin, NATO was reneging on its commitment to halt 7 “Address by the President of the Russian Federation,” 24 February 2022. 6 “Address by the President of the Russian Federation,” The Kremlin, Moscow, 24 February 2022, http://en.kremlin.ru/events/president/transcripts/statements/by-date/24.02.2022. 5 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 190 (June 27). 4 Article 55, Charter of the United Nations. 3 Oliver Dorr and Albrecht Randelzhofer, “Ch.I Purposes and Principles Article 2(4),” in The Charter of the United Nations: A Commentary, ed. Bruno Simma, Daniel-Erasmus Khan, et. al., (Oxford: Oxford Public International Law, 2012), 203.
further rearmament. By stationing troops close to Moscow and by actively increasing its military presence in sites such as the Aegis Ashore site near Russia, NATO was preparing for confrontation and conflict, following its new policy of containment.8 In effect, NATO was the aggressor and Russia, the aggrieved. By carrying out a “special military operation” in Ukraine, Russia was preventing itself from being blindsided should NATO choose to expand to Ukraine, alienating Russia and further posing a threat to Russia’s dominance in the region. The problem with Russia’s invocation of Article 51 lies in the very phrase- “armed attack.” Till date, the Russian government has failed to provide substantive evidence that NATO’s eastward expansion has constituted an “armed attack” against Russia. An “armed attack” as defined by the U.N. General Assembly Resolution 3314 refers to targeted incursions, including, but not limited to: invasion; bombardment or the use of weapons by one State against another State; blockade; an attack on land, air or sea; using one’s territory as a ground for perpetrating acts of aggression; supplying a State with armies or mercenaries to carry out acts of aggression.9 In fact, in the Oil Platforms (Islamic Republic of Iran v. United States of America) case, the Court ruled that for an attack to be deemed an “armed attack” under Article 51 of the Charter, it must: i) not be random ii) be targeted at a specific state and iii) be intended to harm the state.10 As NATO’s intention has never been to harm Russia but to protect states which may be vulnerable to Russia’s influence, NATO’s militarization does not constitute an “armed attack”. Additionally, to invoke Article 51 there must have been an “armed attack” perpetrated directly against a state. In the present case, however, there exists no evidence that in the 10 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), International Court of Justice (ICJ), 6 November 2003. 9 UN General Assembly, Definition of Aggression, 14 December 1974, A/RES/3314. 8 “Address by the President of the Russian Federation,” 24 February 2022.
run-up to the special military operation, Ukraine or NATO used armed forces or military weapons against Russia. Granted, NATO did increase its military size in the regions surrounding Russia. However, this alone does not constitute an “armed attack” according to the precepts of international law. For this first reason, then, Russia cannot make a claim to self-defense due to an “armed attack” as enshrined in Article 51. Furthermore, customary international law holds that the right to use force should only be a last resort in cases in which other means to resolve the issue have failed. Granted, Russia has engaged in talks with NATO in the past to limit its eastward expansion,11 but this is by no means the only amicable solution. Thus, by failing to explore other peaceful means of addressing the perceived threat of NATO, Russia’s invocation of Article 51 cannot be held by the tenets of international law. Ground 2: Anticipatory self-defense In addition, even if there is no armed attack, a state can exercise the right to use force if it is threatened and if that threat is imminent.12 This doctrine is known as anticipatory self-defense which in itself is contentious but regardless does not apply to the events leading up to Russia’s invasion. If a party seeks to lay claim to anticipatory self-defense it would be Ukraine and not Russia because it was Russia stationing over 100,000 troops around its border with Ukraine; it was Russia increasing its military size; and it was Russia preparing covertly to attack. Thus, Russia cannot lay claim to the right to the highly-contentious anticipatory self-defense- if it exists in international law- because it is the aggressor in this case and not the victim. 12 Aylin Gorener, “The Doctrine of Pre-Emption and the War in Iraq Under International Law,” Journal of International Affairs 9 (July 2004): 34. 11 “Address by the President of the Russian Federation,” 24 February 2022.
Using either rationale, Russia’s invasion is unjustifiable on the grounds of self-defense. The question now becomes: are there other grounds–besides self-defense– that permit the use of force against an external state? Ground 3: Humanitarian Intervention On one hand, some legal experts argue that self-defense is the only condition that permits justification for war. As international law expert Ian Hurd argues, codified international law “legitimates wars of self-defense and de-legitimizes the rest.”13 In recent times however, state practice has condoned external use of force on the grounds of humanitarian intervention. This was seen most notably in assisting Kosovo when NATO members intervened to stop the continued attacks by Serbia on Kosovo’s Albanian population. Nevertheless, this does not apply as Kosovo’s case was fundamentally different from the invasion of Ukraine’s Donbas region. Presently, there is no evidence that demonstrates suffering or genocide within Ukraine as alleged by Putin and as such, there is no evidence that points to the need for humanitarian intervention. Thus, this cannot compose any legal grounds justifying Russia’s use of force since self-defense cannot be applied and since humanitarian intervention cannot also be established unless the impacted Ukrainian cities, Donetsk and Luhansk, provide sufficient evidence. Ground 4: Self-Determination This brings us to the second reason why Russia claimed to have launched a military campaign against Ukraine– to achieve self-determination for the people of Donetsk and Luhansk. Besides the perceived threat of NATO’s expansion, another reason put forward as a 13 Ian Hurd, “Permissive Law on the International Use of Force,” American Society of International Law 109 (2015): 65.
justification for the “special military operation” was to preserve the rights of Russians allegedly suffering from a genocidal campaign launched by Ukraine.14 Putin sought to justify his invasion of Ukraine by referencing the right to self-determination as enshrined in Article 1(2) and Article 55 of the Charter. 15 However, there are critical issues with the concept of self-determination. First, what is self-determination and how does it conflict with the principle of territorial integrity? Do the Luhansk and Donetsk people possess a right to achieve self-determination? If they do, can self-determination via secession be achieved by an external country against the will of the parent country? The principle of self-determination is nuanced and complex. For the sake of brevity, its varied dimensions are beyond the scope of this text. In the context of this paper however, self-determination is defined as the right of a people to achieve autonomy over their affairs either internally within a state or externally. Over time, this concept has been distinguished from a practice known as external self-determination or secession. Secession, as defined by the Supreme Court of Canada, is “the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane”.16 Whether or not the Donetsk and Luhansk people have a legitimate right to secession will be the subject of the ensuing discussion. Understanding whether this right exists will determine if the grounds by which Russia invaded Ukraine can be justified under international law. Issues with Secession in International Law The first issue with secession is that it could conflict with the parent State’s territorial integrity. On the one hand, some scholars believe that secession can still be legitimate under 16 Reference re Secession of Quebec, 2 S.C.R. 217, 51 (1998). 15 “Address by the President of the Russian Federation,” 24 February 2022. 14 “Address by the President of the Russian Federation,” 24 February 2022.
international law if it respects historic boundaries.17 As Yuval Shany puts it, secession done this way will avoid infringing on the territorial sovereignty and integrity of the parent State because it follows pre-existing demarcations along ethnic, racial, or religious lines.18 On the other hand, Zubeida Mustafa and Jure Vidmar argue that secession threatens the stability of existing states and will infringe upon their territory whether or not it follows historic boundaries. In “Remedial Secession in International Law: Theory and (Lack of) Practice, Vidmar contends that self-determination comes at the expense of another State’s territorial integrity and sovereignty. 19 Regardless of whether it is done to stop grave suffering or not, it is still not a given because territorial integrity comes first; it is the bedrock of state stability. Similarly, Mustafa also supports this view. In “The Principle of Self-Determination in International Law,” he writes that although self-determination is protected under Article 55 of the U.N. Charter, it is protected as a principle rather than a right.20 Furthermore, Article 55 reads: With a view to the creation of conditions of stability and wellbeing […] and based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote […]. 21 By Mustafa’s argument, self-determination is restricted to the need for friendly relations among nations. When it falls short of this requirement by threatening state stability, self-determination lacks validity. 21 Article 55, Charter of the United Nations, 24 October 1945,1 UNTS xvi. 20 Zubeida Mustafa, “The Principle of Self-Determination in International Law,” The International LawyerAmerican Bar Association 5, no. 3 (July 1971): 480. 19 Jure Vidmar, “Remedial Secession in International Law: Theory and (Lack of) Practice,” St Antony’s International Review 6, no. 1 (2010): 37. 18 Shany, 236. 17 Yuval Shany, “Does International Law Grant the People of Crimea and Donetsk a Right to Secede? Revisiting Self-Determination in Light of the 2014 Events in Ukraine,” The Brown Journal of World Affairs 21, no. 1 (November 2014): 236.
Seen in this light, the secession of Donetsk and Luhansk is contrary to international law because while achieving their acclaimed self-determination, the “equal rights” of Ukrainians granted by Article 55 have been violated. Furthermore, in the process of achieving self-determination, a disastrous war has ensued, destroying all existing “conditions of stability and wellbeing” referred to by Article 55 of the Charter. For these reasons, arguments that the Russo-Ukrainian War is an attempt to achieve self-determination for the Donbas region is illegitimate by the principle of international law which protects the territorial integrity and sovereignty of existing states. Still, another question surfaces: Are there exceptions to this rule? If so, do Luhansk and Donetsk fit into this exception? Exceptional cases permitting unilateral secession in international law are highly contentious. On one hand, remedial secession- secession as a last resort for ending gross violations of human rights- is accepted as an emerging norm of international law. But on the other hand, it is not supported. As one scholar puts it, remedial secession is not a legal entitlement.22 That it exists does not mean it has crystallized into a legally-binding rule in international law. Applied to the Donbas case, even if evidence may exist to support Putin’s claim of genocide against the people, there is no legal entitlement to secession. Furthermore, even if Donetsk and Luhansk claim remedial secession, the claim is not protected by international law. As most legal experts agree, international law is silent on the legitimacy of unilateral secession- even in cases where there are gross human rights violations.23 On the one hand, the practice is not explicitly prohibited but on the other hand, it is not permitted. This explains why in 1970, Biafra failed to secede from Nigeria while just a 23 Simone F. Van Der Driest, “Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law,” The Netherlands Law Review (November 2015): 330. 22 Vidmar, 37.
year after, Bangladesh did so successfully from Pakistan. The point is that remedial secession works and does not work depending on a myriad of factors, which means it cannot be based on a consistent rule.24 In the Donbas case, Donetsk and Luhansk can only request to be granted the privilege of secession rather than the right. As T.M. Franck highlights, there is a difference between providing a right for action and simply permitting it.25 In international law, because there is no clear-cut rule, the secession could go either way. However, because it has led to the outbreak of war, destruction of lives and property rolling into the tens of thousands, and because it is responsible for not only atrocities but also food shortages, hiked prices, and inflation all around the world, it is likely that international state practice will rule it as illegitimate. For one, by Article 2(7) of the UN Charter, UN member states are obliged not “to intervene in matters essentially within the domestic jurisdiction” of states.26 Russia violated this principle when it recognized the independence of Donetsk and Luhansk- an act that was essentially within Ukraine’s jurisdiction and not Russia’s. Furthermore, international law may rule their independence as illegitimate by Paragraph 7 of Principle V of the Friendly Relations Declaration, which states: “Nothing in the foregoing paragraphs shall be construed as authorizing any action which would dismember or impair […] the territorial integrity or political unity of sovereign and independent States.”27 27 Principle V, UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(XXV). 26 Article 2(7), Charter of the United Nations. 25 Thomas Franck, "Opinion Directed at Question 2 of the Reference: Self-determination in International Law. Quebec and Lessons Learned,” Kluwer Law International, (2000): 77. 24 Raisa Dobrescu, "From Kosovo to Crimea. Russia's Shifting Perspectives on the Right of Self-Determination," Law Annals Titu Maiorescu University, (2019): 77.
Ground 5: Remedial Secession Even if the opinion of those against remedial secession were to be tossed aside - can Donbas’s secession be justified as a legitimate act of secession under international law? The answer is no. The reasons are as follows. First, to establish a claim to remedial secession, there must be gross violations of human rights, with emphasis on gross. Further still, these violations must be perpetrated by the parent State.28 In Donbas’s case, it is unclear if the alleged crimes have been committed by the Ukrainian government or by separatists and rebels. Also contested is whether the alleged violations are “gross”- that is violations of the cruelest, most sinister nature. Thus, until evidence is found to support Putin’s claim of genocide, the Donbas does not have a claim to unilateral remedial secession. Second, to establish such a claim the violations must be persistent and consistent.29 If the violations cannot be established in the first case, then there is no way of showing that they have been consistent. Third, a claim to remedial secession requires the seceding state to have a territorial claim.30 If the state cannot prove that the current territorial boundaries are illegitimate, then it cannot make a claim to unilateral remedial secession. Applied to the Donbas case, it is difficult (though not impossible) for Luhansk and Donetsk to prove that remaining under Ukraine is illegitimate as they have been under Ukrainian control as provinces since 1938. 30 Lea Brilmayer, “Secession and Self-Determination: A Territorial Interpretation,” Yale Journal of International Law 16, no. 177 (1991): 188; Shany, 5. 29 Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004): 336. 28 Yuval Shany, “Does International Law Grant the People of Crimea and Donetsk a Right to Secede? Revisiting Self-Determination in Light of the 2014 Events in Ukraine,” The Brown Journal of World Affairs 21, no. 1 (November 2014): 238.
Fourth but not least, remedial secession requires the seceding state to be distinct from the parent state by ethnic, racial, religious, linguistic, or cultural differences.31 Applied to the Donbas then, Luhansk and Donetsk do not have a legitimate claim to secession since they are not completely distinct from Ukraine by any of the above criteria. Finally and most importantly, for remedial secession to hold weight in international legal practice, it must be an act of last resort.32 The secession of Donetsk and Luhansk was not the only solution to disturbances in the region for diplomacy was, and still is, an option. The Minsk Agreement, for instance, or another agreement could have been used as a diplomatic tool for negotiation. Secession was not the only way to achieve peace, and it is for this reason that Donetsk and Luhansk lack a legitimate claim to remedial secession if accepted as a rule. Conclusion From the above analysis, one can conclude that Russia’s use of force to achieve self-determination for the Donbas is illegal and illegitimate under international law. The right to self-determination is not a sufficient reason for an external party’s use of force. Remedial secession cannot be established due to insufficient evidence, and even if evidence surfaces, an external party cannot recognize the unilateral secession of a people. By doing so, the territorial integrity and sovereignty of the parent State will be impacted. As such, Russia lacks the grounds to support an invasion of Ukraine under the pretext of self-defense against NATO or the achievement of independence for the Donbas either by 32 David Raic, Statehood and the Law of Self-Determination (New York: Kluwer Law International, 2002), 313; Bertus de Villiers, “Secession- the Last Resort for Minority Protection,” Journal of Asian and African Studies 48, no. 1 (2012): 83. 31 Brilmayer, 198.
self-determination or by remedial secession. Therefore, it is clear why Russia’s offensive tactics on February 21st, 2022 should be ruled illegal and illegitimate under international law and why Russia must be appropriately sanctioned.
Bibliography Attorney General of Canada. Reference re Secession of Quebec (30 September 1998) 2 S.C.R. 217. https://iorg.ca/wp-content/uploads/2017/05/Reference-re-The-Seccession-of-Quebec.p df. Brilmayer, Lea. “Secession and Self-Determination: A Territorial Interpretation.” Yale Journal of International Law 16 (1991): 177-202. Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004). Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America). International Court of Justice (ICJ). 6 November 2003. Charter of the United Nations. October 24, 1945, 1 UNTS xvi. De Villiers, Bertus. “Secession- the Last Resort for Minority Protection.” Journal of Asian and African Studies 48, no. 1 (2012): 81-96. Dobrescu, Raisa. "From Kosovo to Crimea. Russia's Shifting Perspectives on the Right of Self-Determination." Law Annals Titu Maiorescu University (2019): 70-82. Dorr, Oliver and Randelzhofer, Albrecht. “Ch.I Purposes and Principles, Article 2(4).” In The Charter of the United Nations: A Commentary. Edited by Bruno Summa, Daniel-Erasmus, et. al. Oxford: Oxford Public International Law, 2012. Franck, Thomas. "Opinion Directed at Question 2 of the Reference: Self-determination in International Law. Quebec and Lessons Learned.” Kluwer Law International (2000): 75-84.
Gorener, Aylin. “The Doctrine of Pre-Emption and the War in Iraq Under International Law.” Journal of International Affairs 9 (July 2004): 33-44. Hurd, Ian. “Permissive Law on the International Use of Force.” American Society of International Law 109 (2015): 63-67. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.). Judgment. 1986 I.C.J. Rep. 14. ¶ 190 (June 27). Mustafa, Zubeida. “The Principle of Self-Determination in International Law.” The International Lawyer- American Bar Association 5, no. 3 (July 1971): 479-487. Raic, David. Statehood and the Law of Self-Determination (New York: Kluwer Law International, 2002). Shany, Yuval. “Does International Law Grant the People of Crimea and Donetsk a Right to Secede? Revisiting Self-Determination in Light of the 2014 Events in Ukraine.” The Brown Journal of World Affairs 21, no. 1 (November 2014): 233-243. The Kremlin, Moscow. “Address by the President of the Russian Federation.” February 24, 2022, http://en.kremlin.ru/events/president/news/67843#sel=3:43:Lj1. United Nations General Assembly. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States In Accordance with the Charter of the United Nations. October 24, 1970. A/RES/2625 (XXV). United Nations General Assembly. Definition of Aggression. December 14, 1974. A/RES/3314 (XXIX). Van Der Driest, Simone. “Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law.” The Netherlands
Law Review (November 2015): 329-363. Vidmar, Jure. “Remedial Secession in International Law: Theory and (Lack of) Practice.” St Antony’s International Review 6, no. 1 (2010): 37-56.
Representing AAPI Voters: A Look at Representative Behavior and the COVID-19 Hate Crimes Act
Representing AAPI Voters: A Look at Representative Behavior and the COVID-19 Hate Crimes Act Vivian Zheng, Sahar Momin, Benjamin Greaves
Abstract How do representatives react to the demographic makeup of their constituents? Although it is hard to determine what exactly impacts representative behavior related to specific legislation, the demographics of congressional districts have often been perceived as influential. Our analysis of congressional data indicates that this may not be the case. Referencing the 2021 COVID-19 Hate Crimes Act passed by both the House of Representatives and the Senate, we use linear regressions to examine the relationship between the percentage of AAPI (Asian American Pacific Islander) individuals in a district and the legislative action taken by their representatives. Measuring both affirmative votes and cosponsorship action taken by representatives in the House, we find little evidence in support of a robust relationship — even when accounting for the type of action that is more likely for members of each party. We also find that, in general, the party affiliation of congressional districts is a stronger predictor of representative behavior, though this finding may not always be consistent with national party influences. While AAPI populations have an insignificant influence at the district level, these overall findings indicate that national politics may serve as a better source of representation for AAPI voters.
Introduction The 2020 Presidential Election saw historic gains in voter turnout for Asian Americans and Pacific Islanders of 11 and 14 percentage points, respectively. 1 This unprecedented increase was greater than that of any other racial demographic and can be traced back to an evolving political environment for the AAPI population. This demographic, specifically the subset of Asian Americans, is the fastest growing racial group within the United States.2 Historically, however, it has also been one of the most underrepresented in elections, with a dismal voter turnout. Former President Trump’s election in 2016 and his subsequent policies, such as limiting legal immigration, began to push this voter bloc further left.3 Furthermore, the COVID-19 pandemic (supported by Trump’s racial rhetoric) exacerbated anti-Asian sentiments, which became a highly prevalent, racially-driven issue throughout 2020. The AAPI communities’ shifting sentiments about political engagement to combat these targeted injustices — paired with an increase in targeted outreach initiatives — resulted in the significant increase in turnout in the 2020 election. Following detailed analysis of the election, researchers found that the electoral influence of this population was remarkable. In close swing-states such as Georgia, the AAPI voter turnout was greater than the narrow victory of votes for President Biden; their vote, in many ways, shaped the election.4 To understand how changes in AAPI population and participation have impacted political representation, we used the 2021 COVID-19 Hate Crimes Act to measure Congressmen's legislative decisions in relation 4 Ronald Brownstein, “Don't Sleep on Asian American Voters,” The Atlantic, May 20, 2021, https://www.theatlantic.com/politics/archive/2021/05/asian-american-voters-trump-covid/618935/. 3 Rishika Dugyala and Beatrice Jin, “Trauma and Trump Will Reshape How Asian Americans Vote, Poll Finds,” Politico, October 3, 2021, https://www.politico.com/interactives/2021/asian-american-community-voting-trends-polling/. 2 Caitlin Kim, “Why Asian Americans Don’t Vote,” New America, September 7, 2017, https://www.newamerica.org/weekly/why-asian-americans-dont-vote/. 1 Domenic Montanaro, “The Growing Power of the AAPI Vote, by the Numbers,” NPR, May 22, 2021, https://www.npr.org/2021/05/22/the-growing-power-of-the-aapi-vote.
to the AAPI population (in numbers) of their corresponding districts. We answer the question: How does variation in a district’s AAPI population affect its representative’s support for the COVID-19 Hate Crimes Act? We measured legislative behavior using the 2021 COVID-19 Hate Crimes Act, as it is the most current piece of legislation that targets the AAPI community, and no other piece of legislation has been introduced that addresses this community directly throughout the past several years.5 Representatives could either cosponsor the bill at the time of its introduction or vote affirmatively or negatively to show their support or opposition of its passing. The COVID-19 Hate Crimes Act, which was passed in both chambers of Congress, increases public outreach and availability of resources to make reporting hate crimes more accessible, as well as expedites the process for evaluation of the report. While the bill was relatively bipartisan with support from a majority of both parties, there were notable differences in the way each party reacted to the bill.5 Specifically, we found that all representatives that cosponsored the bill were Democrats, and all Democratic representatives voted affirmatively. We were specifically interested in this intra-party variation, and we chose to conduct our research examining trends related to each congressional districts’ party affiliation. Using data from the House of Representatives, Census Bureau, and Cook Political Report, we tested our independent variable, district AAPI population percentage, on two dependent variables: vote and cosponsorship status. Adding various controls, we further determined the relationship, or lack thereof, between these variables. Our research finds that there is a baseline significant relationship between a district’s AAPI percentage and the 5 Barbara Sprunt, “Here's What The New Hate Crimes Law Aims To Do As Attacks On Asian Americans Rise,” WBEZ Chicago, NPR, May 20, 2021, https://www.npr.org/2021/05/20/998599775/biden-to-sign-the-covid-19-hate-crimes-bill-as-anti-asian-american-atta cks-rise.
likelihood of their representatives to vote affirmatively or cosponsor this bill. However, this significant relationship is highly driven by the district’s party affiliation, meaning that national party alignment is a much stronger predictor of legislative behavior compared to the constituency’s demographic makeup. We begin with a review of current scholarship on minority group representation through legislation passed in Congress. Afterwards, we lay out our methodology and data, followed by our results. We conclude with a discussion of the implications of the results, as well as avenues for further research on this topic. Literature Review The smaller size of the AAPI population, in comparison to other minority and racial groups, has significantly limited research efforts to better understand the politics of this group. The influence of constituency demands on congressional representation has been studied thoroughly in larger subsets of the United States population, such as the Black population and women. However, when applying this to AAPIs, the literature is scarce. Aside from the obvious size difference that impedes on the likelihood of research being conducted, congressional representation is harder to measure when mentions of AAPI in legislation are also negligible. A 2015 study filtered available legislation by searching for key terms like “Asian” and “Asian American.”6 Unfortunately, an acknowledgement of the race itself does not translate to a bill that was written for the AAPI community. Our research targets this inadequacy by using the COVID-19 Hate Crimes Bill, which was directed specifically at AAPI needs. In doing so, we ensured that support for the bill could indicate support for AAPI constituencies. In reaction to the 6 Neilan S. Chaturvedi, “Evaluating Asian American Representation through Bill Sponsors and Cosponsors from 1999 to 2009,” Journal of Asian American Studies 18, no. 3 (2015): 330.
COVID-19 outbreak in 2020 and the subsequent rise in targeted hate crimes, research efforts increased as interest in representatives’ willingness to confront the issues AAPIs were facing grew. 7 Most of these studies, however, derived data from social media platforms, such as tweeting in support for the community or in condemnation of anti-Asian sentiments. While these studies do reflect a changing attitude towards AAPI populations, they fall short in providing a connection to political representation. By using official legislative decisions, we gain a perspective on whether representatives are carrying over their concern into Congress as well. Our methodology also takes into account the partisan divide in addressing AAPI needs. Instead of clustering Democrats and Republicans as one when analyzing the representatives, we split them into two groups that look specifically at the bill’s data and historical involvement with the AAPI population. In doing so, we produced a clearer understanding of cosponsorship and voting trends as a function of demographic size. Finally, and most notably, previous research into AAPI population and representation, such as the Chartuverdi study, occurs at the beginning of the AAPI emergence in politics, specifically from 1999-2009.8 Our research, using the historical changes in 2020, provides an updated study and seeks to confirm whether the emergence did, in fact, encourage substantive representation for AAPI. 8 Chaturvedi, “Evaluating Asian American Representation through Bill Sponsors.” 7 M. Arora and H.J. Kim, “Stopping the Hate: Political Condemnations of Anti-Asian Rhetoric during the COVID-19 Crisis.” Journal of Asian American Studies 23, no. 3 (2020): 388.
Theory and Hypotheses Theory To establish a relationship between a growing AAPI electorate and Congress, we utilized a delegate model of representation. Using the 2020 election as evidence, we saw that an increase in political influence of the AAPI community prompted more outreach efforts during the elections. Similarly, representatives, in an effort to take advantage of the growing AAPI vote, included AAPI-concerning issues among their legislative priorities. A growing number of descriptive representatives that identify as AAPI also impacted which issues are prioritized on a more personal level. Because Congress is a representation of its constituents, the current 117th Congress displays diversity in both the representatives of each district as well as the focus of AAPI-issues. We believed that this effect would correlate positively in districts with a higher AAPI constituency. Of course, this effect itself is contingent on party affiliation. While the AAPI vote is not a monolith, general trends show that the community is shifting further left, as a result of the previously discussed political and global landscape from 2016.9 As a result, interactions with the community may differ significantly by party. Hypotheses We hypothesize: I. Bill cosponsorship will be more likely among Democrats representing a congressional district with a larger AAPI population. II. Support for the bill, through affirmative votes, will be more likely among Republicans representing a congressional district with a larger AAPI population. 9 Dugyala and Jin, “Trauma and Trump Will Reshape How Asian Americans Vote.”
To check that our results are robust, we added multiple controls that could have possible effects on legislative decision-making. First, we evaluated whether each district was considered a majority-minority district, or a district where the makeup is primarily composed of racial/ethnic minorities. Areas with higher black, indigenous, or people of color (BIPOC) populations already have an effect on minority representation within Congress. Second, we also looked at state-level changes in the AAPI population for each district’s state. This control created a more standardized level of AAPI population changes and removed the possibility of confounding correlation only because of a state’s historically low or high percentage of this demographic group. Because we aimed at finding district-level connections between population and representation, we controlled for state-level trends in the AAPI population that could influence our results. Lastly, we identified a district’s party affiliation, or how a district voted in the 2016 elections based on a partisan voter index. As discussed, party alignment has a significant role in a legislator’s actions in a legislative body, so we wanted to determine if a representative was more motivated by their party affiliation rather than the demographics of their constituents. We would like to emphasize that this party affiliation was not the self-identifying party of the representatives’ themselves, but the overall affiliation of the district based on the citizens’ votes in the 2016 presidential election.
Data and Methods Data To test these hypotheses, we utilized data from the House of Representatives, Census Bureau, and Cook Political Report. Drawing from House records, we collected information about each of the 435 representatives, such as district, party, and behavior related to the COVID-19 Hate Crimes Act. For the two dependent variables, vote and cosponsorship, representatives were coded as either voting “Yes” in support or “No” in opposition, as well as either being “Yes” a cosponsor or “No” a non-cosponsor; the original House sponsor of the bill was included as part of the broader group of cosponsors. We examined demographic data from the 2016 Census Bureau’s American Community Survey (ACS). We chose this particular survey because the Census lists it as a “premier source for detailed population” information that is also available across a variety of geographic units, including congressional districts and states.10 The 2016 ACS provided the data for the independent variable, a district’s 2016 AAPI population percentage, and two controls, a state’s 2016 AAPI population percentage and majority-minority status of a congressional district. After collecting the population and racial composition data of each district and state, each racial group was calculated as a percentage of the broader population. However, AAPI is not a term currently used by the ACS, so we compiled this information for each geographic unit by combining the “Asian” and “Native Hawaiian and Other Pacific Islander” categories. We applied a similar process in determining the majority-minority status of districts by checking if the “White” population percentage was less than 50 percent. 10 Census Bureau, “American Community Survey (ACS),” United States Census Bureau., November 24, 2021, https://www.census.gov/programs-surveys/acs.
For the final control of district party affiliation, we applied the Cook Political Report’s 2016 Partisan Voter Index (PVI) to each of the districts in our sample. The PVI indicates how a district votes politically “compared to the nation as a whole” during presidential elections.11 Based on how the index identified the partisan leaning of a district, we then coded the district as either being Democrat or Republican. Methods Prior to running our initial tests, we adapted our sample to include only the representatives who would be incumbents, rather than newly-elected members, at the time of the bill’s introduction and passage. This distinction was made to focus on the representatives who would likely be the most attuned to their district’s demographic composition. Upon making this change to the sample, all representatives elected in the 2020 elections were excluded from the final tests. We then further divided the sample into two groups: incumbents elected in 2016 or earlier and incumbents elected in 2018 or earlier. By creating these two subsets of the sample, we attempt to account for the influences of the Trump administration on representatives. Those elected in 2016 or earlier would have begun their congressional careers at or before the start of the administration, making them potentially less influenced by the policies and rhetoric leading up to the introduction of the bill. Conversely, representatives elected in 2018 or earlier would not only include many of the members in the previous subset, but also members elected during the administration who were possibly more influenced by the Trump presidency. As seen in Figures 11 Cook Political Report, “PVI,” The Cook Political Report, https://www.cookpolitical.com/pvi-0.
1 and 2, both subsets contained a relatively similar distribution of representatives from Democratic-affiliated and Republican-affiliated districts. Figure 1: Districts of representatives elected in 2016 or earlier. 149 are from Democratic-affiliated districts (blue), and 137 are from Republican-affiliated districts (red). Districts in gray were excluded from this subset. Figure 2: Districts of representatives elected in 2018 or earlier. 171 are from Democratic-affiliated districts (blue), and 185 are from Republican-affiliated districts (red). Districts in gray were excluded from this subset. Although some representatives were elected in years other than 2016, we apply the data from the 2016 ACS and PVI to both subsets. This allows for a more comparable analysis between the two groups while also accounting for how many incumbent representatives remain in both groups. For each subset, we ran the same sets of linear regression tests to examine the relationship between a district’s 2016 AAPI population percentage and representative behavior. We first ran tests that covered only the baseline relationship between district AAPI percentage and behavior, then ran additional tests that added in the control variables. These tests also included different combinations of controls to determine if they had any impact on the relationship. Furthermore, to better account for potentially disproportionate impacts from certain controls (namely district party affiliation), we created additional subsets of representatives based on their district affiliation to test our hypotheses.
Results Observing just the 2018 incumbent data without controls, we initially see a strong, positive relationship between a congressional district’s number of AAPI citizens and representatives’ affirmative votes and cosponsorship action. Voting behavior for each congressional district’s representative is coded as 1 for an affirmative vote and 0 for a negative vote. The representatives’ voting actions are represented through jitter plotting to better visualize the amount of affirmative and negative votes. Every point in the top half of the jitter plot represents a “Yes” vote while those in the bottom half of the plot correlate to “No” votes. Additionally, the linear regression line has been added to the jitter plots. A marginal effects plot is also provided to show significance with a 95% confidence interval. For simplicity, these voting assessments are summarized in Figures 3 (Jitter Plot of Voting Behavior) and 4 (Marginal Effects Plot of Voting Behavior).
The same significant results were found for the relationship between district AAPI percentage and cosponsorship status, as seen through Figure 5 (Jitter Plot of Cosponsorship Behavior) and Figure 6 (Marginal Effects Plot of Cosponsorship Behavior). If a representative cosponsored the bill, his or her response was coded as 1, and no cosponsorship was coded as 0.
As additional robustness checks, we added three controls to vote behavior to determine where exactly the significant relationship was stemming from and to eliminate any possible confounding variables. The linear regression lines of the three controls (district party affiliation, state AAPI percentage, and minority-majority district status) are indicated and color-coded on the jitter plot. The marginal effects plot shows that out of all the independent variables, 2016 District Party Affiliation was the only statistically significant explanation for any variation in representative vote behavior, with a positive coefficient estimate of 0.213737. See Figure 7 (Jitter Plot for Voting Behavior (with Controls)) and Figure 8 (Marginal Effects Plot for Voting Behavior (with Controls)).
We also tested the same three controls on cosponsorship behavior and saw the same results. State AAPI percentage did yield slight significance, with a positive coefficient estimate of 0.011591. However, in the end, district party affiliation was again the main indicator of representative behavior. This variable had a positive coefficient estimate of 0.712589, which was also a stronger correlation than vote behavior. See Figure 9 (Jitter Plot of Cosponsorship Behavior (all Controls)) and Figure 10 (Marginal Effects Plot of Cosponsorship Behavior (all Controls)).
Ultimately, our findings illustrate that district party affiliation is the main indicator for how both Democratic and Republican representatives will vote and cosponsor this piece of AAPI-related legislation. These findings also show that legislators most likely do not take into consideration the demographics of their constituents when approaching legislation, rather basing behavior more on their party ideology. While neither of our hypotheses ended up yielding significant results, there are interesting implications made by the robust relationship between party affiliation and legislative behavior.
Discussion To further show the effect of district party affiliation, we subsetted out only the cosponsorship results for districts that identified as Republican based on their votes in the 2016 election. See a summarized version of these cosponsorship results in Figure 11: Jitter Plot of Republican Districts and Figure 12: Marginal Effects Plot of Republican Districts.
This subsetted dataset found a positive and extremely significant relationship between cosponsorship status and representatives elected in 2018 or earlier from Republican districts, with a coefficient estimate of 0.051616. Interestingly, a handful of Republican districts were marked as cosponsors in the top half of the jitter plot, despite the fact that only Democratic representatives were cosponsors on the bill. This discrepancy is due to the distinction between representative party and overall district affiliation. Especially because of the polarizing nature of the 2016 presidential election, many districts that voted for Trump in 2016 ended up flipping their representative seat during the 2018 midterm elections. Many of the districts that fall into this category were also very close to the margin for the 2016 election, usually leaning only a few percentage points toward Republican affiliation.
This positive correlation further suggests that national party affiliation, not just affiliation at the district-level, is the clearest indicator of legislators’ decision to cosponsor or vote for a bill. Republicans are more likely to not cosponsor the COVID-19 Hate Crimes Act because of their political alignment. This conclusion, however, could come from different factors associated with the Republican party. It is unclear whether political ideology, or extremist right-leaning sentiments, are the primary reasoning behind Republicans’ unwillingness to either cosponsor or even vote for this specific piece of legislation. Perhaps if there was a more distinct way to measure the reasoning behind legislators’ decisions for voting for a bill, there could be a clearer indicator of their motivations. Although it currently seems that representatives are not motivated by the demographic makeup of their constituents, this trend might change as minorities such as AAPI voters take a larger presence and have more representative power in congressional districts. Targeted legislation and issues affecting specific racial groups might become more prevalent in the future as the country becomes more progressive and as voters become more vocal; our initial hypotheses may ultimately stand true as time goes on.
Conclusion Although the AAPI community has demonstrated significant population growth and increased voter turnout trends that may continue to develop in the future, this has not manifested as a clearly influential district characteristic for representatives. For members of Congress, party still appears to be the main driving factor of legislative behavior, even when the bills being considered are highly visible and specifically targeted to certain parts of their constituencies. Our testing also suggests that the interests of the member’s national party, rather than their district’s party affiliation, may be more of an influence on representatives, potentially further distancing legislator behavior from constituent preferences. While this relationship could reduce the substantive representation of the districts as a whole, it may actually provide benefits for the AAPI population in other issue areas. As a demographic group that rarely comprises a large percentage of a district’s population, AAPIs may receive more effective representation when a national party is committed to maintaining their trust and loyalty. For those living in districts with a smaller AAPI percentage in their demographic composition, AAPI populations may actually benefit from the party alignment of both their district and representative. Further research should be conducted to determine if this finding on representation applies to similarly small demographic groups with their own legislation, such as LGBTQ+ Americans. However, it is worth noting that just as the AAPI community is not a monolith, neither are their policy interests in different parts of the country. Members of Congress are best positioned to address these specific local needs, making the current lack of a relationship between a district’s AAPI population and representative behavior a point of concern even if national parties may offer some counter-pressures on representatives. This discrepancy between district and national level interests is also compounded by the variations in vote tallies and
cosponsorship among the Democratic and Republican parties, as it remains unclear which factors prompted only some Democrats to cosponsor the COVID-19 Hate Crimes Act and some Republicans to vote no on the bill. Additional research into the causes of these kinds of intraparty variation could offer better insight into the limits of party unity, potentially revealing why national party interests may or may not be a reliable alternative to district representation. Ultimately, with AAPI voters becoming increasingly more active and engaged, research into their policy preferences and influence on elected officials will likely need greater attention in the future.
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