August 16, 2005

Petition for Cert Filed in Florida Felon Disenfranchisement Case: WWRD (What Would Roberts Do)?

Lyle Denniston (of SCOTUSBLOG) offers this useful post on the status of Johnson v. Bush (upholding Florida's felon disenfranchisment law against constitutional and Voting Rights Act section 2 challenges) and similar cases in the Second and Ninth Circuits.

Assuming Judge Roberts is confirmed, this may be one of the first test of his views of the Voting Rights Act. Based on everything I have seen about Judge Roberts' views of section 2, I find it very difficult to believe he would interpret section 2 to cover felon disenfranchisement absent evidence of discriminatory purpose (though that issue is indeed presented in the Florida case). We know he opposed the broad effects test from section 2, and, as I noted here, he fought to have section 2 interpreted as narrowly as possible once it was passed. As I noted:

    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."

The liberals on the Court could vote against cert. in this case, out of fear of creating a national precedent that would narrow the reach of section 2. A cert. denial at least keeps the Ninth Circuit's case alive for now.

Posted by Rick Hasen at August 16, 2005 05:06 PM