The Misguided Effort to Explain Obama to the Court–or–Why Obama Really Matters and What the Court Should Do About It

Here is a guest post from Ellen Katz:

    On April 29, the Supreme Court will hear argument on whether Section 5 of the Voting Rights Act remains constitutionally justified. The question has long been anticipated and many people, myself included, have written on the issue. But while most of the arguments being presented to the Court are familiar ones, a remarkable new claim has emerged in the briefs and commentary surrounding the case: Barack Obama’s election as President of the United States is repeatedly presented as an event that critically informs the constitutional validity of the VRA.

    Opponents of the Section 5 preclearance regime are urging the Court to view Obama’s election as proof the requirement is obsolete. The Appellant’s opening brief, Georgia Governor Sonny Perdue’s amicus brief, commentary on the case by Abigail and Stephan Thernstrom, Ken Blackwell, George Will and others all present support for Obama among white voters in 2008 as relevant evidence showing that Section 5 is no longer needed. On the other side, supporters of the Act say Obama’s victory confirms Section 5′s continued importance. The claim here rests largely on meager white support for Obama in places covered by Section 5, and is being advanced in Trevor Potter’s amicus brief on behalf of former Republican officerholders, the New York Times editorial page, Jeffrey Toobin in the New Yorker to name a few. Taking no position on outcome, Nate Persily’s brief with Steve Ansolabehere and Charles Stewart is devoted exclusively to racial bloc voting patterns in the 2008 election, evidence they suggest will be relevant and useful to the Court.

    The Court should ignore them all and refuse to weigh in on the significance of Obama-s election–at least for now. Whether or not the Obama presidency is a “gamechanger” is not something the Justices should decide in this case. To consider Obama’s election at this juncture would fundamentally alter the legal inquiry and amount to an ill-advised power grab by the Court. Rather than asking whether Congress had or has good reason to think Section 5 is still needed, the Justices would be deciding for themselves whether, in light of Obama’s election, reauthorization is a good idea today.

    The significance of Obama’s election for the Voting Rights Act is difficult to assess. Obama was an unusually talented candidate running a high profile, well-funded campaign that elicited tremendous turnout at a moment when the stars arguably aligned for the Democratic nominee. Even so, Obama lost decisively in every single state wholly subject to the preclearance requirement, and won only narrowly in three states partially subject to Section 5, in all garnering fewer votes from whites in the south than he received nationwide. Partisanship alone cannot easily explain this differential. John Kerry did significantly better among white voters in covered states in 2004 than did Obama last year. What is more, the places where white support for Obama was most meager were also the places in which African-American voters offered Obama crucial support either during the primary or the general election.

    In all these places, Section 5 actively shaped the electoral rules Obama confronted. We do not know how Obama might have fared in 2008 absent this regulatory regime. Perhaps Section 5 was superfluous. Perhaps, however, Section 5 is what guaranteed Obama a fair shot. These are difficult questions the Court is not equipped to decide today.

    The issue is, nevertheless, not one the Court can or should entirely ignore. Obama’s election inexorably shapes the lens through which Section 5 is now understood. Obama’s presence in the briefs and commentary surrounding the case shows this, even if these references might technically be dismissed as legal error. The Court might well attempt to ignore the election and examine the 2006 evidence with willful blindness to the events that followed. This, however, poses a real danger as the Obama presidency cannot help but influence how the Justices will view the validity of Section 5 today. The Court should not pretend otherwise.

    There is one thing the Court can and should do: step back and let Congress evaluate the significance of Obama’s election in the first instance. To be sure, the Court lacks an obvious way to give Congress this opportunity. But feasible options exist. The Justices might do something as simple as hold the case until the end of the current congressional term so that Congress might consider the import of Obama’s election. Alternatively, the Court might prod Congress more: it could strike down the statute as a burden that cannot permissibly be maintained absent congressional consideration of Obama’s election, while staying its order for a period long enough to allow for Congress to act. (Although the latter path would indeed require some consideration of Obama’s election, it would amount to no more than taking judicial notice of the fact that Obama’s election is of such magnitude that Congress must take another look before maintaining this burden on the States.) Neither approach is unproblematic, to be sure. But either means the Justices need not engage in the treacherous task of finding and evaluating facts Congress never considered or pretending to ignore what nobody can ignore.

    Congress may, of course, repeal, refine, or simply retain the preclearance requirement. It should weigh these options carefully. The Obama Justice Department, for its part, can play an important role in all this, too. It should use the time it would gain to implement a new, assertive stance with regard to Section 5. Many counties now regulated by the statute are eligible to free themselves from the preclearance requirement if only they would apply to be released from the regime. The Department of Justice should identify places with good voting practices and immediately offer agency support for such “bailout.” At the same time, the Department should actively assist local leaders in places that do not currently qualify for bailout to develop strategies that would make them eligible for bailout in the coming years. Doing so would refine Section 5′s reach, and activate a more vibrant and flexible remedial program even if Congress retains the Act otherwise unchanged.

    As John Lewis said: “Barack Obama is what comes at the end of that bridge in Selma.” It was a disrupted civil rights march on that Selma bridge that first propelled Congress to enact the Voting Rights Act nearly a half century ago. Obama’s election may present an appropriate moment to bring the preclearance regime to a close. Or it may be proof that, notwithstanding our historic progress, much work remains to be done. Either way, the judgment should be Congress’s to make in the first place. The Obama presidency is a terrible reason for the Supreme Court to toss out the statute now.

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