August 04, 2005

Whelan on Judge Roberts and the Future of Section 5 of the Voting Rights Act

Ed Whelan (who may not remember that his office was next to mine when he was an associate and I was a summer associate many years ago at Munger, Tolles and Olson) writes in response to my oped that there is good reason to believe that Judge Roberts would be more hospitable to a renewed section 5 of the Voting Rights Act than he was to the proposed section 2: "The answer, as it happens, is provided in the very documents that Hasen has been reviewing. As Roberts explained in 1982, section 2 and section 5 'are addressed to different problems. It makes sense to have an effects test [in section 5] for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited.'"
The problem is that Judge Roberts wrote those words in 1982, when there was still ample evidence that jurisdictions covered under section 5 were engaged in intentional race discrimination in voting, and before the "New Federalism" revolution on the Rehnquist Court, making it much harder for Congress to impose requirements (like preclearance) on the states. In part, the problem is that the Voting Rights Act has been so effective that it is hard to find evidence of intentional state discrimination on the basis of race in voting, even if it would reemerge if section 5 were allowed to sunset. I term this the "Bull Connor is Dead" problem in my forthcoming article,
Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio State Law Journal ___ (forthcoming 2005). An updated and revised version of the article will appear in the book, The Future of the Voting Rights Act, edited by Epstein, O'Halloran, Pildes and de la Garza.

Posted by Rick Hasen at August 4, 2005 12:47 PM