August 03, 2005

"Roberts' Iffy Support for Voting Rights"

The Los Angeles Times has published my oped on Judge Roberts' views of voting rights, based upon my examination of his papers while serving as special counsel to Reagan administration Attorney General William French Smith. These papers relate to the Administration's opposition to amending Section 2 of the Voting Rights Act to make it easier for minorities to prove vote dilution. You can find the original source documents I relied upon in writing the oped here. Here is a snippet from the oped:

    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 were simply 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.

The oped also talks about what a Justice Roberts might mean for the Supreme Court's consideration of the constitutionality of a renewed section 5 of the Voting Rights Act should that issue reach the Supreme Court in the future.
One of the documents I did not have space to discuss in the oped was one released yesterday by the National Archives. In this memorandum to Ken Starr (see page 2 of the pdf), Roberts recommended that the DOJ intervene in a voting rights case in Chicago, writing: "it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended."

Posted by Rick Hasen at August 3, 2005 07:15 AM