The discussion of the constitutionality of the proposed extension of the Voting Rights Act has a disquieting tone to it. I am not sure what purpose is served by advocates of extension saying categorically that the bill would be found constitutional and opponents saying it would not be. There may be a satisfying “Mom and Apple Pie” high ground in being able to wrap an argument in the fabric of putative constitutional discourse, but I am not sure what is gained by it.
Any serious discussion of the constitutionality of the bill has to proceed along at least three tracks, each of which introduces huge amounts of uncertainty. The first is what level of scrutiny applies to legislation clearly within the core enforcement concerns of the Reconstruction amendments. Is the Court likely to see this as an extension of City of Boerne or will it apply the laxer standard of review of Hibbs? Will the Court be inclined, if faced with a 25-year extension, to continue the deferential treatment of the Voting Rights Act offered up most recently in Lopez v. Monterey County? My hunch is that the standard of review will be more exacting than Hibbs, but less than Boerne. That is, I think the Court is likely to have far greater reluctance to strike down core enforcement statutes dealing with race than it would be with the further reaches of congressional power. But I acknowledge this is a hunch based on wildly incomplete data and a small and internally inconsistent body of decided cases. I find it bizarre that anyone would speak with certainty about the constitutionality or unconstitutionality of the Act without even a clear sense of what the standard of review might be. In fact, I am more inclined to view these arguments as unenlightening advocacy dressed up as constitutional analysis.
The second issue is the state of the record for the Act’s renewal. Here I think that lawyers and law professors have something interesting to say. There are serious debates about what the record shows, about what the absence of objection shows about the continued need for the Act or about its ongoing deterrent effects, about the relation between the regulatory design for addressing vote exclusion and its current application primarily to vote dilution, and so forth. These are important issues about the state of voting rights in the U.S. They force a reexamination of the extent to which a model of racial exclusion continues to define the central defects in American elections, and the extent to which, per the Georgia v. Ashcroft discussions, the mechanical applications of this model may produce paradoxical effects. Despite the initial forced march efforts for renewal in the House, I have found the debates occasioned by the Senate hearings to be fascinating. Even after many years in the field, there is much to be learned in these exchanges. But here again, a candid assessment of the record begins with the acknowledgment of how dramatically altered the voting rights terrain is today as opposed to 1965 or 1982. Much of the debate is about what to conclude form the basic absence of a record of willful exclusion of the sort that could easily be marshaled in 1965 and even 1982. The difficulty of working with this kind of record is yet another source of constitutional uncertainty.
Finally, there are the political or temperamental impulses of the Court. This is a Court with new members that has not yet engaged congressional action at the core of the 14th and 15th amendments. Is this a Court still chastened by Bush v. Gore, as Dave Cole argues? Or is this a Court that will direct itself to the boundaries of congressional power as such, and perhaps one less concerned with the marginalia of the 11th amendment? Would this Court come out the same way in Gonzalez v. Raich, for example? Much may turn on the political and institutional identity assumed by this reconstituted Court. Again, I find it hard to take seriously that anyone would speak with certainty about the constitutionality of a renewed Act in the face of this factor being as yet uncertain. Others may think this issue is already conclusively resolved. But if it is not, the claim of constitutional certainty rings hollow.
–Sam Issacharoff