Ellen Katz sends along the following guest post:
- Rick links to today’s NY Times article on NAMUDNO, and suggests that my views on the constitutionality of Section 5 have changed. Not so.
In the piece, Adam Liptak quotes me to say that Obama’s election “arguably presents the moment when Congress should close out this regime.” My point is not that Obama’s election shows that Section 5 is no longer needed. Indeed, it is my view that the evidence we have about the election offers grist for both sides of the debate.
Instead, my point is that Congress, not the Court, must evaluate this evidence in the first instance, and that the Court should find a way to send this matter back to Congress for such consideration.
Just to be clear, I think that the Act was validly passed in 2006 – in part based on a record to which I have contributed. But I also think that Obama’s election is not an event that can or should be ignored.
As I said to Adam, Obama inexorably shapes how we understand Section 5 today. This is why I recommend that the Court take the unusual step of finding a way to make Congress take a fresh look at the law.
I explain my position, which has remained unchanged, in the National Law Journal.