In light of the Supreme Court’s decision to consider the constitutionality of section 5 of the Voting Rights Act this term, I thought it might be useful to reproduce my August 3, 2005 Los Angeles Times oped, which for some reason is not available on the newspaper’s website. [UPDATE: It looks like it is now available here.] It is below.
Roberts’ iffy support for voting rights
By Richard L. Hasen
At the beginning of the 1980s, African American voters made up about one-third of the electorate of Mobile, Ala. Studies showed clearly that these black voters preferred different candidates than white voters, but the nature of the electoral system in the city — in whichcandidates for city commissioner were elected by majority vote throughout the entire city –meant that the candidates backed by blacks were never elected. The two-thirds of the electorate that was white always outvoted the one-third that was black.
African American civil rights organizations sued, claiming that the at-large voting system unconstitutionally “diluted” their votes. But the U.S. Supreme Court disagreed, holding that Mobile’s election system did not violate the 14th or 15th Amendments because there was no evidence it had been designed with the intent of discriminating against minority voters. In response, the civil rights community pushed to have Section 2 of the Voting Rights Act of 1965 amended to allow such a “vote dilution” claim to go forward without proof of discriminatory intent. It would be enough to show that election laws such as Mobile’s had a discriminatory effect.
In the Reagan administration at that time was a 27-year-old lawyer named John Roberts. As a special assistant to Atty. Gen. William French Smith, Roberts was a major force behind the administration’s efforts to oppose the new Section 2, according to newly released papers. He drafted Op-Ed articles, questions and answers for senators and documents aimed at defeating the new Section 2.
In these documents, Roberts wrote that the new Section 2 would “establish a quota system” and “provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” He added that it “would be difficult to conceive of a more drastic alteration of local government affairs.” Imposing the new Section 2 nationwide, he concluded, would be “not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based.”
One could perhaps argue that Roberts’ writings did not reflect his personal views and weresi mply the arguments of a zealous advocate for a client. But the papers I have seen suggest otherwise.
During the Senate debates, for instance, Roberts wrote that the attorney general had to “get something out somewhere soon” [original emphasis] explaining the administration’s position because the “frequent writings in this area by our adversaries have gone unanswered for too long.” He called on the administration to take an “aggressive stance” against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that “we were burned.”
None of these statements absolutely proves that Roberts is hostile to expansive voting rights legislation, but as he wrote in his talking points for the attorney general, circumstantial evidence (rather than a “smoking gun”) should be enough to prove intent.
How many fewer minority legislators would be in office in Congress and in state and local legislatures if Roberts’ position had prevailed in 1982? It is hard to say. But this is not just about the past; Roberts’ view of voting rights may also have an effect on the future. Portions of the act (though not Section 2) are set to expire in 2007, and Congress is expected to reauthorize them in some form. The most important provision up for renewal, Section 5, requires jurisdictions with a history of racial discrimination — for instance, many cities and counties in the South — to get “preclearance” from the Department of Justice before making any changes in voting procedures. The Justice Department grants preclearance only when the jurisdiction shows that the changes have neither a discriminatory purpose nor effect.
When Congress reauthorizes Section 5, will the Supreme Court uphold it against charges that it tramples states’ rights? Some worry the court may not.
Justice Sandra Day O’Connor’s votes in these federalism cases have been pivotal, and her vote in 2004 to uphold a provision of the Americans with Disabilities Act had given those in the civil rights community grounds to be optimistic that a renewed Voting Rights Act could pass constitutional muster.
Roberts’ writings, on the other hand, show much more skepticism of congressional power, particularly on voting rights. Because Roberts viewed the “effects” language in Section 2 as an “intrusive interference” that is a “drastic alteration” of American government and “constitutionally suspect,” why would he look charitably on a renewed Section 5?
I would not count on him to uphold it.
Credit: Richard L. Hasen teaches election law at Loyola Law School, Los Angeles. The documents he referred to are posted on his website, electionlawblog.org.