Others have written about Senator Jeff Sessions, President-Elect Trump’s expected nominee for Attorney General, and questions of race and voting rights. I can add only one thing from personal experience. In 2006, I testified (that day, along with Professors Sam Issacharoff and Rick Pildes) before the Senate Judiciary Committee on the then-expiring preclearance provisions of the Voting Rights Act. I had earlier written a law review article (edited by Chris Geidner) expressing concern that if Congress did not alter the coverage formula for which states had to get federal approval before changing their voting rules, the conservative Supreme Court could well strike the law down as an unconstitutional exercise of congressional power. (We know how this story ends. Congress did not make the changes, and the Supreme Court indeed struck these provisions down in the Shelby County case.)
The hearing was odd, a bunch of liberal law professors called to question the constitutionality of the Voting Rights Act. Sen. Arlen Specter headed the committee, but he was seen as too liberal, and to keep his job more conservative Senators (including Sen. Sessions) insisted he have conservative staff, and it is this staff which put together the hearing. At the hearing, Senator Sessions was very cordial, and in our exchanges he expressed the view, which Chief Justice Roberts later echoed in Shelby County, that things were now much better in the South and preclearance was unwarranted if directed only there :
Senator SESSIONS. You know, as I indicated in my remarks, there was very, very real discrimination, particularly in the South, and perhaps other areas of the country, but certainly in the South, for a number of years, and over these 40 years a lot has changed. It really has. I would like to ask, Mr. Hasen, if you would explain the purpose or the theory, as you understand it, for the fact that Section 5 was not permanent at the time it passed and how we should think about that today in your view.
Mr. HASEN. Thank you, Senator. Section 5 was put in place by Congress after it became clear that a number of jurisdictions with a history of discrimination in voting on the basis of race were playing a kind of cat-and-mouse game where the Federal Government would come in, challenge a particular voting rule. That voting rule would then be changed to a different voting rule, which would also be discriminatory. And the purpose of the preclearance provision was to put the burden on those jurisdictions that showed a history of discrimination to justify any changes in their laws to show that they did not have a discriminatory purpose or effect. The reason that the provisions were set up as temporary is because of the unprecedented nature of the kind of remedy that preclearance is. Never before or since has a State or unit of a State ad the requirement to have to get permission to change its laws from the Federal Government. Some have analogized it to a kind of Federal receivership. So it was what the Supreme Court in the Katzenbach case called ‘‘strong medicine.’’ And so given that it was strong medicine, Congress decided, wisely, I believe, that it should be a temporary measure and that by having these periodic sunsets and the ability for these hearings, it gives a chance for Congress to evaluate whether the strong medicine is still necessary. And so I think that as you go forward and think about extension, it would be worthwhile to look at the evidence and determine how far should extension go, both geographically and temporally. Should the same provisions that were in place based on data in 1964 be in place in the future for the next 25 years, up until 2031? And should the same areas be covered? So I think it is Congress’s obligation now to decide whether that strong medicine should continue in the same form as it has or whether changes are necessary given changes that have occurred on the ground in these covered jurisdictions and in the rest of the United States. Senator
SESSIONS. Thank you for saying that. I think it is important. For example, we do have—tend to have racially polarized voting, I believe as Mr. McDonald said. But my home city of Mobile, a majority-white city, just elected an African-American mayor last month. And he mounted very aggressive campaign, and he had biracial support and was funded aggressively and able to compete on TV and that kind of thing and won the race with a rather significant vote. So I think there is progress occurring out there, and whether things are perfect or not—we know that is not so. We know we are not perfect, and we still have problems. With regard to some of the matters that I hear complaints about from district attorneys and county attorneys, maybe, Mr. Hasen, you would comment. For example, if you move a voting place from a school on one side of the street to the courthouse on the other side of the street, the county or the governmental entity must petition the Department of Justice to approve that and demonstrate that it did not have an intent to discriminate. And at some point, you know, people begin to get a little irritated about that. I mean, they had no problems. They may have African-American officials. Maybe every person in the county—all office holders could be African-Americans, as some are. Are there things like that that you think we ought to consider in terms of making the Act fit the challenges of today rather than problems perhaps in the past?…
Senator SESSIONS. Thank you.
I would offer for the record Senator Leahy’s statement into the record on his behalf, and I would like to followup, Professor Issacharoff and Professor Hasen, on the question that Senator Leahy asked you about, the constitutionality question. Based on your review of the House record, do you believe we currently have enough evidence to meet the Supreme Court’s test in City of Boerne? Who wants to go first?
Mr. HASEN. I have not reviewed the entire House record. First let me say that I think that the Supreme Court’s standard is not sufficiently deferential to Congress and that, just speaking generally, the Court has applied too strict of a standard in terms of the kind of evidence that Congress has to come up with. From what I have reviewed so far of the House record, I am concerned that there will be five or more Justices on the Court who will not be satisfied. If the question is whether I would be satisfied, it is a different question. I think that—
Senator SESSIONS. Are you one of those who believes in stare decisis like some of my colleagues on the Democratic side to such a degree that Boerne ought not to be re-evaluated? Or should the Court re-evaluate it if it is appropriate?
Mr. HASEN. Well, Boerne was a change from the standard in Katzenbach, and I would like to see us go back to that. But we are living in the reality that we have now, which is that the Supreme Court is requiring much more evidence than it ever did, and it is not clear to me that the record as I have looked at it so far—and I have not completed the review—that it is going to satisfy a majority of the Supreme Court.
Despite expressing grave doubts about the constitutionality of a renewed Voting Rights Act, Senator Sessions (and the other conservative Senators on the panel and in the Senate) voted to renew the Act. But then, as Nate Persily explains in his excellent overview of the renewal process, Senator Sessions and the other conservatives on the Senate Judiciary Committee also had a surprise in store–a post-vote committee report strongly suggesting the law they just voted for was unconstitutional:
The story in the Senate was quite different. The nine Senate Judiciary Committee hearings held between April 27, 2006, and July 13, 2006, featured heated debates concerning the constitutionality and desirability of the legislation.32 Individual Judiciary Committee members had serious reservations about the proposed bill. Those concerns revolved around the maintenance of the current coverage formula and bailout procedures, the twenty-five-year extension period, the new retrogression test, and what some Republican Senators considered the rushed process of deliberation that rejected any substantive amendments to the bill. At various points it appeared that the legislation might be held over to the next Congress, especially once the language assistance provisions of section 203 became framed by the parallel debate over immigration reform.
Any potential roadblocks to passage were removed once President Bush became involved, however. He scheduled his first presidential speech to the NAACP for July 20, 2006, and used the opportunity to stress his support for reauthorization “without amendment.” Majority Leader Bill Frist placed the House bill on the Senate calendar for the same day as the President’s speech with rules that prevented any amendments on the floor. On the day before the Senate vote on the House bill, the Senate Judiciary Committee reported its own bill, which was identical to the House version, save for the addition of César Chávez’s name to the title.36 This raised an interesting procedural question: if the Senate passed a bill that had a different title but exactly the same substance as the one passed by the House, would a conference committee nevertheless need to be assembled? To avoid that possibility, to prevent any Senate dillydallying on its bill, and to ensure the Senate vote would take place on the day of the President’s speech to the NAACP, Majority Leader Frist simply moved the House bill to the Senate floor.37 The Senate unanimously approved (98-0) the House bill shortly after the President’s speech.
Six days after the Senate passed the House bill and one day before the President signed the bill into law on July 27, the Judiciary Committee “Report” on its version of the bill was filed. Not only was a presidential “stick” instrumental in propelling the House bill to passage in the Senate, but the unprecedented character of the after-the-fact committee report strongly suggests that the opportunity to alter the Senate Report provided a carrot that appeased some of the Senate Republicans who had reservations. In fact, despite a unanimous vote on the Senate bill both in the committee and on the floor, only half of the eighteen members of the Judiciary Committee—all of whom were Republicans—signed on to the Report. The final draft of the Report itself was not circulated to Democratic senators on the Committee until the day the President signed the bill into law. In their “additional views” included with the Report, the Democrats on the Committee emphasized, “We object and do not subscribe to this Committee Report . . . which . . . has become a very different document than the draft Report circulated by the Chairman on July 24, 2006.”
The evolution of the Senate Judiciary Committee Report offers the best window into the fragility of the political compromise that undergirds the new VRA and the basic disagreement that exists concerning its key provision. It also provides a unique case study in the self-conscious manipulation of legislative history for partisan ends and the shadow cast on the legislative bargaining process by the Supreme Court’s recent federalism precedents. Moreover, given the importance the Court has attributed to legislative history in previous reauthorizations—namely, the centrality of the “Senate Factors” to the Court’s subsequent interpretation of the 1982 Amendments to the VRA—the unique character and procedural background of the Committee Report should cause concern regarding how courts or the Department of Justice (DOJ) might apply the law in concrete cases. The hope of supporters of reauthorization was that the Senate Report would take the form of the House Report. Akin to a lawyer’s brief, it would present the legislative record as unambiguously supporting reauthorization, and as providing substantial evidence to support its constitutionality. To do so, the Report would need to credit the damning examples of voting rights violations in covered jurisdictions and interpret the previous twenty-five years of experience under section 5 as demonstrating the VRA’s continued utility. The proposed “Statement of Joint Views of Senate Judiciary Committee Members,” which the Committee Democrats originally crafted but never released, did exactly that. It is unsurprising that the Republican members ofthe Committee could not sign onto this “Statement of Joint Views.” As is clear from the final product, the Republicans did not want to condemn the covered jurisdictions with as broad and resounding a declaration as did the House Committee. They also disagreed fundamentally with the Democrats’ interpretation of the retrogression standard and wanted to provide what they considered to be a more balanced view of the record, which would place greater emphasis on voting rights progress. The final Report bears no resemblance to the initial “Statement of Joint Views.”