Sam Bagenstos sent the following message to the Election Law Listserv, which I am reposting here with permission:
Will Oremus’s piece is long on rhetoric and short on argument. He writes that the Department of Justice has taken a “laissez-faire approach” to Section 5 preclearance, that it’s “no longer willing to defend a robust interpretation of the law,” that it’s “letting [Section 5] waste away,” and that it has “forfeited” presumably important “battles.” But what’s the evidence? That the Department precleared redistrictings in Georgia, Louisiana, South Carolina, and Virginia. Nowhere in Oremus’s piece, though, do we see any argument that these redistrictings actually violated Section 5 — that is, that they were adopted with a discriminatory purpose or had a retrogressive effect. All we see in the piece is that these redistrictings were harmful to the interests of the Democratic Party, and that certain activists of that party seem to have expected that, with the Department of Justice headed by Democratic appointees, the Department could be counted on to serve the party’s interests. But that’s not what Section 5 is supposed to be about. It’s supposed to be about protecting against a certain kind of racial discrimination — not protecting the interests of the party that runs the federal executive branch, even if that is the party with which most minority group members affiliate.Absent a case that the precleared redistrictings actually violated Section 5 — a case Oremus never makes — Oremus’s statements that the Department is letting Section 5 “waste away” by “forfeit[ing]” key battles (etc.) have no basis. I know that, among a certain crowd of people who consider themselves to be in the know, a conventional wisdom has developed that: (a) the Supreme Court is going to invalidate Section 5 the next time the case comes before them raising the question; and (b) the Department of Justice is (and perhaps should be) anticipating this by declining to enforce Section 5 robustly. I will just say that none of us has any way of knowing whether (a) is correct. All we know is that the Supreme Court didn’t decide the question in Northwest Austin. Lots of people have gone wrong in the past by overreading “signals” from Supreme Court decisions that didn’t actually decide questions. Lots of folks, for example, thought the Fifth Circuit’s decision in Hopwood accurately read the Supreme Court’s signals in Adarand, though Grutter shows that prediction was wrong (notwithstanding what a new Court might do today in Fisher). As for (b), I don’t think the case has been made. Why would the Department object to the South Carolina voter ID law if it wanted to avoid testing Section 5’s constitutionality? In fact, I recall a number of folks (including Rick Hasen writing in Slate) saying that the decision to object in that case was reckless precisely because it set up a constitutional test in the highly contentious context of voter ID laws.I think the real story in Oremus’s piece is not that the Department of Justice is afraid to use Section 5, but that the Holder Department of Justice has applied the law fairly, even where doing so has not served the interests of the Democratic Party. Not as sexy a story as the one Oremus wanted to tell, perhaps, but an important one nonetheless.