I have now had a chance to read Judge Bates‘s opinion in the Shelby County case more closely. This is a significant and scholarly opinion from a George W. Bush appointee—such an opinion could carry some weight with Justice Kennedy (or at least serve as the basis for a strong and passionate dissent), if and when this case reaches the Supreme Court.
In some ways this opinion tracks the NAMUDNO three-judge panel opinion, which initially upheld section 5 against constitutional challenge before the case was reversed on questionable statutory grounds by the Supreme Court. But this opinion is stronger in a few ways.
First, the opinion may be taken more seriously by the Supreme Court because the author not only is a more conservative judge than Judge Tatel, author of the original NAMUDNO opinion. It also applies a tough standard of review (“congruence and proportionality” rather than “rationality”), an issue on which the NAMUDNO court hedged, and still held the law met the tougher standard for demonstrating appropriate congressional power.
Second, Judge Bates had the advantage of the Supreme Court’s tea leaves in NAMUDNO. He wrote the opinion specifically responding to some of the concerns about whether the law exceeded congressional power which the Supreme Court had flagged.
Finally, Judge Bates seemed to do a very good job dealing with both the current evidence of discrimination in the record (from the 1980s, 1990s and 2000s, as he says) as well as the “Bull Connor is Dead” problem. Many readers will walk away from the opinion thinking that if section 5 disappeared, discrimination based upon race in voting would reappear and grow in covered jurisdictions. (He does a very good job as well connecting private acts of racially polarized voting to specific state action.)
If there’s one place where I see some vulnerability, it is on the question of whether the danger of racial discrimination in voting is especially high in the covered jurisdictions compared to the rest of the country (not subject to preclearance). Judge Bates deals with this at the end of the opinion, and it does not seem to me he had brought forward a lot of evidence that the problems within the covered jurisdictions are different in kind from those elsewhere—the section 2 evidence, for reasons Judge Bates explains, seems to me to be not good proof of intentional race discrimination.
To be sure, there is a big question whether it will be necessary to show the differential risk of discrimination in order to get the Court to uphold the law’s constitutionality. But to the extent it turns on this question, I expect it to get a lot of play in the D.C. Circuit appeal, and eventually before the Supreme Court.