Sam Bagenstos sent the following message to the Election Law listserv, reposted here with permission:
In his testimony at today’s Senate Judiciary Committee hearing, Michael Carvin argued that preclearance is unnecessary because Section 2, with its post-1982 “results test,” provides sufficient protection against voting discrimination nationwide. In their prepared testimony for tomorrow’s House Judiciary Committee hearing, both Christian Adams and Hans von Spakovsky make versions of the same argument (though they give it less prominence than Carvin’s prepared testimony did).I would like to offer a simple test for whether this is a serious, good-faith argument or just a political talking point. Anyone who argues that Section 2’s results test, applied nationwide, is sufficient to address today’s problems of voting discrimination should have to answer the following two or three questions:1. In your view, is Section 2’s results test constitutional?2. Do you predict that the Supreme Court, as currently constituted, will uphold Section 2’s results test as constitutional?3. If the answer to question #2 is yes, why do you think the current Court, given the case law from Boerne through Shelby County, will uphold a statute that, in Will Baude’s words, “sweeps far more broadly” than does the Constitution itself, and that, as Rick Hasen points out, “has no geographic or temporal limits”?Unless an advocate of the Section-2-results-test-is-sufficient line is willing to give a clear and unqualified affirmative answer to questions #1 and #2, and can give a persuasive explanation in response to question #3, there is no reason to accept her position as a serious and good-faith argument instead of a political talking point.Of course, even if the argument is serious and offered in good faith, it might be wrong. I happen to think that even if Section 2’s results test survives a constitutional challenge it is woefully insufficient as a replacement for preclearance. That’s a matter we can debate. But to say that Section 2’s results test is sufficient without being willing to say that the results test is constitutional, predict that the Court will uphold it as constitutional, and persuasively explain the basis for that prediction is to make the promise to the ear but break it to the hope.