July 07, 2009

Pildes: Hanging In on Bailing Out

Rick Pildes sends along this guest post:

    A number of us have been trying to work out the implications of the Court's NAMUNDO decision for the next constitutional challenge to Section 5. I now want to address Armand Dernfer's brief analysis, which I had promised to do.

    Armand, like Nate Persily, is focused on the potential significance the statute's escape valve, the bailout option, will have for the next case. But they are making quite different arguments; though the differences are subtle, they are important. Armand argues that how effective bailout turns out to be could well affect the Court's ultimate conclusion as to whether Section 5 is constitutional. The easier bailout is, or the more often areas manage to bailout of the statute, the more likely the Court is to find the new Section 5 to be constitutional. In essence, Armand envisions that the Court will address the facial constitutionality of Section 5, but that the Court might uphold it if the bailout system turns out as a general matter to be an effective, meaningful option. Nate's suggestion instead was that the Court might never address the facial constitutionality of Section 5 because the Court will entertain only as-applied challenges. As a practical matter, a great deal is at stake in the difference, including whether Congress would have to revisit the Act in the wake of the Court's next decisions.

    In principle, Armand's view has some legal weight. If Congress were to redesign bailout, for example, and make it a more frequently used option, that could affect the Act's constitutionality. That is partly why many of us urged Congress to examine the bailout option in more detail in 2006. Way back in 1982, Congress decided bailout had not been working as intended; it amended the Act in 1982 to make bailout easier. But as it turned out, those amendments had almost no practical effect. It's still not entirely clear why. There are a number of possibilities, including that the statutory formula is inappropriately onerous; that there are practical obstacles to collecting information necessary to bailout that Congress was not and is not aware of; that there is ignorance about the existence of the bailout option; and that it is too politically charged for jurisdictions to take the initiative to seek bailout. At the least, I would have preferred (as I testified) that Congress explore the reasons and then, if necessary, decide how the statute might be best structured. As I said in my earlier post, the more minimal the actual burden of bailout, the less significant the coverage formula becomes, which could well affect the Court's constitutional judgment.

    Though Armand's analysis seems plausible in principle, I do wonder, however, about whether it could play out in practice. I see two practical obstacles. One is that it depends on how much additional experience with the bailout process emerges before the Court faces the next constitutional challenge to the Act. If that challenge emerges relatively soon, the record regarding bailout won't look any different, or much different, than it was in the Court's recent decision. Only if enough time passes before the Court next faces the issues, and enough jurisdictions seek and obtain bailout, would the record be significantly different.

    Second, the Court's decision expands the number of jurisdictions that can seek bailout, but it does nothing to change the content of what's required for bailout, and Congress did nothing on that front either. The decision has no effect on the large, principal entities the Act covers, the 9 states and the approximately 900 counties. If those areas continue not to bailout in the next several years, just as they have not bailed out in meaningful numbers since 1982, then even if time passes before the Court faces the next challenge, bailout might look just as non-minimal an act then as it looks now. Perhaps some smaller jurisdictions that could not seek bailout before will now bailout successfully. But I wonder how much bailout will look to the Court like a truly meaningful escape valve in a way that affects the constitutionality of Section 5 if it continues to be the case that none of the main covered entities manage, for whatever reason, to bailout.

    In sum, Armand's argument seems legally plausible to me, but I think the practicalities will stand in the way of that argument being able to be made effectively in the next few years. The wise course, it seems to me, would be for Congress to examine why bailout has not turned out as envisioned and, if there are inappropriate statutory barriers to proper bailout, to address those. I do not expect Congress to do that, however.

Posted by Rick Hasen at 04:22 PM

July 01, 2009

Persily: Exhausted by Exhaustion

Nate Persily sends along this guest post:

    Rick Pildes takes me to task for suggesting the Court might perpetually avoid the constitutional shortcomings of the coverage formula for the VRA. He mistakes my speculation and kremlinology of the Court for a legal argument, so only a few words are necessary in response.

    First, just to be clear, I specifically said in my post that the Court might reach the constitutional issues posed by the coverage formula. As I said, "Of course, each of these situations presents the possibility that the Court will deal with the larger issue of the law's constitutionality. And if we view the NAMUDNO decision as simply a warning shot to Congress, maybe the Court will shoot more directly if Congress does not act soon (which was my initial response to the decision)." I would also add that congressional inaction and the absence of moves by DOJ to encourage and achieve bailouts would make this aggressive move more likely. To be sure, the Court has not boxed itself into a corner with NAMUDNO. Its freedom to strike down the VRA rests only on the vitality and willingness of the five members who vote to do so.

    Also, it is wrong to suggest that I ignored the possibility of a facial challenge that squarely presents the issue of the constitutionality of the coverage formula. That was the first scenario I described: "a covered jurisdiction could argue that Congress has exceeded its authority under the Enforcement Clauses by requiring the jurisdiction to submit its voting law changes for federal approval." The Court might resolve that challenge by rejecting it, but nevertheless strongly suggesting the jurisdiction ought to be eligible for bailout should it bring such an action.

    It is also possible, as Pildes suggests, that the Court would take that opportunity to declare the coverage formula unconstitutional for the same reasons it raised constitutional doubts in NAMUDNO. I gather he deems it either impossible or very unlikely that the Court might do what I suggest. Obviously, Pildes could be right that if bailout is viewed as burdensome, let alone futile, then the jurisdiction could argue that it should not be subjected either to coverage or to bailout. In this regard Pildes compares the state of Georgia to an unmarried woman forced to seek court approval for an abortion.

    I guess I see the bailout option differently, or more to the point, I think the Court might. We may have an honest disagreement as to what legal options are available to the Court. I think this disagreement may revolve more around our perception as to Justice Kennedy's willingness to resolve the constitutional issues when other options are available (or around whether the bend-over-backwards quality of NAMUDNO was a ticket to that train only). In the series of cases where the Roberts Court has eschewed facial challenges for as-applied ones, or has opted for statutory, instead of constitutional, grounds for a decision, I see the possibility (though nothing close to certainty) that it will do so again. Of course, NAMUDNO could be to the next VRA case what Wisconsin Right to Life looks like it will be for Citizens United: a prelude to bolder action.

    Just to be clear, as my erroneous and contemporaneous postings on the NAMUDNO oral argument attest, I thought the Court was going to strike down section 5 in NAMUDNO itself. So, the most I can muster in predicting the next case, not yet even conceived, is to say that the Court, once again, might find a way out of the constitutional controversy.

Posted by Rick Hasen at 02:46 PM

Pildes: Confusion About the Future of Voting-Rights Litigation

Rick Pildes sends along this guest post on NAMUDNO:

    In the wake of the Supreme Court's decision to avoid resolving the constitutionality of Section 5 for now, some confusion has emerged about legal questions concerning the next challenge. In particular, Nate Persily suggested that the recent decision suggests the Court might "perpetually avoid" ever addressing the constitutionality of Section 5. Nate imagines a kind of Catch-22: if any covered entity seeks to argue the Act is unconstitutional, the courts will tell it to try to bailout. If it succeeds, the case goes away. If it does not, then the entity is properly covered and cannot complain about the Act. Hence, the Court will never decide whether Section 5 is constitutional or not. As a matter of law, I think this suggestion is incorrect. Nothing in the Court's recent decision leads to this conclusion. And the law concerning federal courts and constitutional litigation is also inconsistent with the Catch-22 Nate suggests.

    First, in NAMUNDO itself, the water district expressly conceded that its constitutional claim would dissolve if it were permitted to seek bailout. The Court expressly relied on this concession, even quoting it in the opinion's text. That's not surprising: without this concession, it would have been much harder for the Court to avoid the constitutional issue. In the next challenge, I would not expect to see a similar concession, if an entity indeed wants to put the Court in a position in which it must face the larger question.

    Second, Nate presents four scenarios in which the next challenge might arise. But I believe he misses the most obvious and important one. Suppose a state like Georgia (which filed a brief arguing that Section 5 was unconstitutional) wants to get out from under Section 5 and challenges its constitutionality. The state might do this by seeking a declaratory judgment that it no longer must seek preclearance. Or the state might bring an action in response to a DOJ decision not to preclear some change. The heart of Georgia's argument would be that it should not have to seek bailout, or prove its eligibility for bailout, because the very fact that Georgia has been singled out for this burden is what makes the Act unconstitutional. The central argument, under either the rational basis test or the "congruence and proportionality" standard, is that the Act exceeds Congress' enforcement powers because Congress did not adequately justify singling out Georgia (and other covered areas) from non-covered areas from the burdens of Section 5. That is the argument a number of Justices pursued actively at argument; it's the argument to which the opinion expresses some degree of openness. If it's unconstitutional for Congress to single Georgia et. al. out in this way, then the Court cannot avoid that question by telling Georgia to go seek bailout.

    The problem is that Section 5 involves a classification (covered and non-covered states) and the state of Georgia would be challenging the validity of that classification. As a legal matter, it is not an answer to that kind of challenge for a statute to create an escape valve from the classification; it's the classification itself that is at issue. Suppose a state required unmarried but not married women to seek court approval (an escape valve, akin to bailout) for an abortion; if an unmarried woman challenged the constitutionality, it would be no answer for a court to conclude that the judicial bypass provided a constitutionally-adequate escape valve, so that the Court could avoid the constitutional question. Even if Congress could require all women to seek judicial approval, the Court would hold the unmarried/married classification unconstitutional. Or suppose a public school system presumed students of one race should be put in "remedial" schools rather than regular schools, but those students could take a test and if they scored high enough, escape this system by being moved to the better schools. Surely the escape valve of the test is no basis for avoiding the question whether any race-based presumptive classification like this is constitutional.

    Now take Section 5 itself: suppose Congress had decided which states to cover in a transparently arbitrary way, say by flipping a coin, but the bailout option existed. If the classification in the statute were unconstitutional -- as it obviously would be in this hypothetical-- then I think it's easy to see why the bailout escape valve is not sufficient to avoid the constitutional question of whether Congress has exceeded its power in the first place by forcing jurisdictions to go through the bailout process. The same applies to the actual Section 5: If the Court believes the coverage formula is unconstitutional, then by definition the Court has decided there is a constitutional injury to which the option of bailout is not an adequate answer (perhaps if a statutory escape valve involved a completely de minimis or trivial act, such as filing a formal paper that would be approved automatically, the answer might be different, but no one thinks the current bailout structure under Sec. 5 imposes a trivial burden like that).

    I've tried to illustrate as a matter of basic legal analysis why this "perpetual avoidance" suggestion is wrong. I could also provide many Court cases illustrating these points, but perhaps the most direct is Northeastern General Contractors, which was unanimous on the point relevant here. The Court held that being subjected to an unconstitutional process creates a constitutional injury, whether or not the particular plaintiff was entitled to the benefit at issue or not. The Court held that it had to reach the merits of a constitutional challenge to a 10% set-aside for minority businesses, regardless of whether the plaintiff could show that any particular contract would have been awarded to it or any other non-minority bidder but for the set-aside. In other words, being forced to go through an unconstitutional process is itself constitutional injury here and now, one that the Court does not, and under its doctrine cannot, avoid.

    Thus, as a purely legal matter, I do not think Nate's analysis of "perpetual avoidance" is correct. And my analysis says nothing about any kind of special solicitude the Court might have for laws that single out states, like Section 5 --even though it is clear from NAMUNDO itself, from the Court's 11th Amendment cases, and from Justice Kennedy's repeated concerns for the "equal dignity" of the states, that the Court is likely to be even more aggressive in protecting the states from unconstitutional classifications than it might be for other classifications. Instead, my point is more basic than that: the Court does not avoid holding unconstitutional classifications unconstitutional merely because a covered person or entity can pursue an escape option the law also creates.

    To be clear, I am not expressing any view on whether Section 5 is constitutional. The point is that, if the Court believes it is, the Court by definition has decided there is a constitutional injury to which the option of bailout is not an adequate answer. NAMUNDO and established law, as well as the simple logic of challenges to the classifications a law creates, do not provide any support for this notion of perpetual avoidance; indeed, the last two point powerfully in the other direction. In addition, I am not predicting that the Court will address the constitutionality of Section 5, either soon or down the road. That first depends on whether jurisdictions decide to mount future challenges. And the Court has many discretionary doctrines to avoid the issue, including by not agreeing to hear any such case in the first place. Indeed, Indeed, the Court can change the way it handles cases like this, but that would require a doctrinal change. But Nate writes that maybe "the Court has placed itself in a position" where it would never have a legal basis for confronting the constitutionality of Section 5. That is rather clearly wrong. Nothing in NAMUNDO itself, or existing law, requires that conclusion.

    One last note: Armand Derfner has made what I read as a quite different point from Nate's about the possible relevance of bailout. My initial reaction is there's somewhat more to Armand's point, and if I have anything useful to say about it, I will another time. But this post has gone on long enough.

Posted by Rick Hasen at 11:51 AM

June 26, 2009

Kang: The Continuing Relevance of Section 5

Michael Kang sends along the following guest post:

    Thanks to Rick Hasen for hosting this discussion of NAMUDNO, which I'm happy to join near its close. I've enjoyed surveying academic opinion about the Voting Rights Act and NAMUDNO, but I'm less skeptical than many of my colleagues about Section 5's continuing relevance. Of course President Obama's election was a watershed moment in the evolution of American racial politics that mark today as importantly different from 1965. Of course the crisper tailoring of the Section 5 coverage formula and bailout provisions is eminently sensible, as are calls for deeper attention to the evolution of what Dan Tokaji calls the "new vote denial" and to the development of broader guarantees for an affirmative right to vote. However, as much as things have changed in many parts of the country, it is easy to forget that things have changed much less in others, as Nate Persily's brief in NAMUDNO points out. Where I live, in Georgia, new measures that threaten to limit the franchise are regularly legislated, and while these proposals may be motivated at their base by partisanship, the effective targeting of these measures against certain populations of voters is no mistake. DOJ's refusal to preclear Georgia's requirement of proof of citizenship, following the presidential transition, helps remind us how Section 5 can make a meaningful difference along these lines.

    The aftermath of NAMUDNO is less likely to be a major overhaul of, or a major shifting away from, the Voting Rights Act, but instead another incremental adjustment and peaceful co-existence of the VRA with new regulatory initiatives. I'm skeptical that Congress will be much less deferential to the VRA than a Court staffed by politically insulated Justices who appeared ideologically hostile to it during oral argument before ultimately issuing a more careful, perhaps "statesmanlike" decision. But the continuing relevance of the VRA need not crowd out new reform extensions, and indeed, one might reasonably hope that new extensions supplement, rather than necessarily supplant, and draw political strength from the VRA's historical pedigree.

    A looming question is what NAMUDNO signals for the viability of Section 2. The legal debate about the constitutionality of the VRA, post Boerne, until rather recently focused on Section 2. Section 5 seemed on safer ground with its limited coverage, preclearance review limited to retrogressive changes, and sunset and bailout provisions. Debate about NAMUDNO has softened resistance to challenges against the VRA and potentially cleared political space for the Court to strike down Section 5's more vulnerable sister. However, this path doesn't seem the Roberts Court's style, which has more often been the crafty use of standing, as-applied challenges, and here in NAMUDNO, implausible statutory evasion, to achieve its policy ends by indirect means. The Roberts Court already carved back Section 2's reach earlier this Term in Bartlett v. Strickland, but its response to future challenges is likely to entail similar limitations of the law’s substantive reach, but executed carefully to avoid the unwanted headlines that follow from directly overruling precedent or striking down Section 2. This may well be the path taken by the Court with respect to Section 5 following NAMUDNO, at least if Nate Persily is correct about the Court’s bailout analysis. Although the Ricks-- Hasen and Pildes --compare NAMUDNO to Bush v. Gore, the NAMUDNO decision reminds me of Wisconsin Right to Life v. FEC. Like WRTL, NAMUDNO eschews sweeping invalidation but may just as well undermine Section 5's foundations over the long run, if Nate is right, by chipping away at its application case-by-case through judicially mandated bailout.

    Finally, the shift in academic opinion, at least in legal circles, about the Voting Rights Act is striking to consider. Academic opinion has shifted from nearly universal support a decade ago, to sober concern about its constitutional vulnerability a few years ago, to what now seems to have galvanized during debate leading up to and following NAMUDNO into a skeptical consensus among academics against the Voting Rights Act's usefulness going forward. The Court's decision in NAMUDNO will prove astoundingly canny if the shift in academic opinion surrounding the case is a harbinger of a parallel shift still to come in political and public opinion. Others have speculated that NAMUDNO is a warning shot intended to spur political reconsideration of the VRA, and a quick review of academic reaction suggests the warning shot has already achieved the intended doubts and alarm among us "early adopters." But I wonder whether Congress and the civil rights community are likely to follow academic opinion following NAMUDNO any more than they followed it during the 2006 renewal process. I have my doubts, particularly when academic prognostications on these issues, while substantively sensible on paper, have been noticeably inaccurate in predicting actual results on the field.


Posted by Rick Hasen at 09:38 AM

June 25, 2009

Epstein: NAMUDNO and the Dilemma of Observational Equivalence

David Epstein sends along this guest post:

    Observers reacted to the NAMUDNO punt with a sigh of relief, but also as a bit of a missed opportunity: rather than have this case provide guidance for the next round of redistricting, the next round of redistricting will probably serve as input for the court's disposition of Section 5. So let's look ahead a bit and try to game out what influence the court's ruling, or lack thereof, should have on the redistrictings following the 2010 census.

    The crucial concept to begin with here is what political scientists call "observational equivalence," or the difficulty of proving a negative. The question is whether Section 5 is still necessary. Southern states point to the near absence of preclearance requests denied under Section 5 to argue that they have reformed. Civil rights groups say that the lack of discriminatory actions is proof that Section 5 works, and that to dismantle it is to risk returning to the bad old pre-VRA days.

    The problem is that a world in which Section 5 procedures are unnecessary is observationally equivalent to a world where they are necessary and completely effective. Either way, the result is no violations for the federal government to overturn. It is unarguable that, historically, Section 5 was a key component to dismantling the South's panoply of discriminatory institutions. But this state of affairs can't go on forever, and how can one tell when it's OK for the federal government to take its thumb off the scales?

    If the only data we had came from the South, this would be a near-impossible question to answer. But luckily we have the whole rest of the country to use as a control group -- even better, since the question is whether the South (and other covered jurisdictions) should be singled out for preclearance requirements, a natural standard would be whether their electoral processes work to disadvantage minorities more than in the rest of the country.

    So one could imagine, for instance, a civil rights version of the 1988 Seattle-Vancouver handgun violence study. Seattle and Vancouver are very similar socio-economically, except that in 1978 Canada essentially banned handgun carrying and handgun acquisition for self defense. Sure enough, although it had only slightly more aggravated assaults than Vancouver, Seattle had far more homicides than did Vancouver, with the difference mainly attributable to assaults with handguns. This type of study could be repeated with a number of Southern and non-Southern cities to test for rates of minority voting, office-holding, social benefits, and so on.

    Until then, though, Southern states will have incentives to be very cautious. Given the difficulty in proving a negative, the South will probably concentrate on not proving a positive; that is, to engage in behavior that will appear to be retrogressive or anti-minority. This is especially true with a Democratic administration vigilantly enforcing Section 5; Texas's mid-decade redistricting and Georgia's voter ID laws, both passed under a Republican administration, now seem a bit ill-advised, as they perpetuate the image of the South as restricting minorities' political influence through any means possible.

    Notice that this forecasted caution will exacerbate the problem Nate Persily points out; namely, that it may indeed be difficult to find a way for the Court to directly rule on the constitutionality of Section 5. They can, after all, force jurisdictions to seek bailout first, and then rule only on the bailout provisions of the VRA, rather than Section 5 itself. One of Persily's possible approaches to challenging Section 5 rests on a Georgia v. Ashcroft-type case, where a state's redistricting plan is denied preclearance and then this is used as a vehicle to attack the preclearance requirement itself. But if no state sticks its neck out, this avenue too would be closed.

    So, probably not much will happen politically until the Court rules on a direct challenge to Section 5 (if it ever does). Which means that it will be up to social scientists, in all likelihood, to tackle the observational equivalence problem and change the intellectual terrain between NAMUDNO and the next big voting rights case.


Posted by Rick Hasen at 05:27 PM

Gans: Some Thoughts, Post-NAMUDNO, Going Forward

Curtis Gans sends along this guest post:

    I have been reluctant to enter the fray with regard to NAMUDNO and the VRA, in part because I'm not a lawyer, and while that hasn't deterred others, my comments will not have the legal precision of some who have commented here.

    I join with those who have expressed relief that the Court did not decide on the constitutionality of section 5 and those who have expressed concern that with a case of larger moment, the court could well decide at some time in the not distant future to declare the title unconstitutional unless there is some remedial legislative action. The question which has been raised is what that legislative remedy should be. And that, in turn, can only be ascertained by answering a number of questions. To wit:

    1. Is pre-clearance still necessary? The essence of pre-clearance is to put the burden of proof on covered jurisdictions to prove that their current laws and contemplated changes are not in violation of the VRA. It is highly likely that in Deep South states, the high number of elected African-American officials could not have been achieved without pre-clearance and majority-minority districting. And it is likely that without the pre-clearance provisions of the VRA, many of those states would backslide. My rule of thumb with respect to current conditions is any state where Obama handily won a primary (due largely to African-American votes) but convincingly lost the general election (despite heavy African-American voting) is still voting primarily on the basis of race, that African-Americans still could not win statewide elections and, without supervision and threat of federal action, would regress. Those states that fall clearly into this category are South Carolina, Georgia outside of Fulton county and Athens, Alabama with the possible exception of Montgomery, Mississippi with the possible exception of Jackson and Louisiana excepting New Orleans. In those states, section 2 with the burden of proof placed on government to prove denial of voting rights would not suffice.

    2. Is pre-clearance necessary for all the currently covered jurisdictions? The answer is clearly no. Obama won Virginia and the state has elected an African-American governor. There may be pockets of likely voting denial on the basis of race in certain counties in the south and southwest of the state (like Prince Edward County), but the state as a whole has come a long way and is not likely ever to regress. A similar case could be made for Texas both with respect to African-Americans and Latinos. The state as a whole should not be subject to pre-clearance, but jurisdictions within it might. (I don’t know enough to speak to Alaska and Arizona.).

    3. Should the bailout provisions be changed? Given the fact that there are many covered jurisdictions for which pre-clearance coverage is no longer necessary and which might bring court cases similar to NAMUDNO with uncertain results as to the constitutionality of section 5, a very strong argument can be made for Rick H's pro-active bailout proposal and the summary removal of jurisdictions which should not be covered. The question that hasn't been answered in this dialogue (or multilogue) as far as I can see is what are the updated benchmarks for both continued coverage and pro-active bailout.

    4. Has the majority-minority district remedy outlived its usefulness? The answer is both no and yes. For the covered Deep South states, I see no other remedy to ensure that African-Americans continue to be elected at least for the foreseeable future. For the rest of the country, this remedy has outlived its usefulness, enhances political polarization and is a major obstacle to a redistricting regime which emphasizes competition and may create a more cooperative politics. Majority-minority districting enjoyed the support not only of minorities and civil rights organizations but also of the Republican Party, the latter because it could lump all minorities into a few districts and make an ever-smaller number of Republican districts competitive. The problem with non-competitive congressional and state legislative districts is that they tend to empower the more extreme as zealous elements of the American polity. The average turnout for a statewide Democratic primary (for governor and U.S. Senate and even adjusted for the competitiveness of the race) is ten percent of the eligible electorate,. For GOP statewide races, it's eight percent. That means an organized minority representing no more than four percent of the electorate can propel a candidate to primary victory and thus election in one-party districts. And it is the zealous who tend to be those organized minorities. One cannot conceive of expanding the number of competitive districts after the 2010 Census without dealing with the non-southern majority-minority districts and without some leadership from the minority community in understanding that neither their interests or the interests of the country are best served by their continuance.

    5. Should there be a new comprehensive right-to-vote law as a substitute for VRA? The answer for me is there should be a comprehensive law like the one Rick Pildes suggests, but that it should not supersede the VRA. The virtue of the VRA as a separate law is that it is, once changed to provide new criteria for coverage and proactive bailout, an extremely effective well-targeted remedy for a major historical and potential present problem Making that task more complicated by creating an overarching "right to vote" statute probably would weaken the effectiveness of VRA. On the other hand, a comprehensive right to vote law is highly desirable, especially if it includes dispensing with the current list-based, hand-operated, extremely costly, and totally inaccurate and inadequate registration system in favor of one that might be biometrically-based.


Posted by Rick Hasen at 10:18 AM

June 24, 2009

McDonald: Court Signals No Future Challenges to Section 5

Michael McDonald sends along this guest post:

    Like the cartoon Road Runner, the Supreme Court Justices nimbly stepped through a door they drew in thin air to sidestep the oncoming train that, if derailed, would have ended Section 5 of the Voting Rights Act. Section 5 requires certain "covered" jurisdictions identified by Section 4 to submit changes in election administration to the federal government for approval before they can take effect. In NAMUDNO v Holder, the Justices interpreted Section 4 "bailout" -- the ability for jurisdictions to petition the federal courts to escape Section 5 coverage -- as applying to all jurisdictions, including a municipal water district, despite the lack of such enabling language in the Act.

    This technical interpretation allowed the Court to avoid ruling on the larger issue of the constitutionality of Section 5, despite clear misgivings about it. As simply stated in the opinion:

      Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of s5.

    In crafting this decision, the Justices have effectively signaled that they will avoid ruling on future constitutional challenges to Section 5, as well. The logic is straightforward. Any jurisdiction that has the resources to challenge the constitutionality of Section 5 also has the resources to petition the federal courts for bailout. A covered jurisdiction challenging the constitutionality of Section 5 will be shown the bucket for bailout. A covered jurisdiction that does not qualify for bailout due to recent evidence of discriminatory practices will make a poor plaintiff, and will only reinforce the need for Section 5.
    The irony is that there are a number of covered jurisdictions that routinely submit their election administration changes and the federal government routinely approves them. It is easier for these jurisdictions to continue coverage than to go through the more costly bailout process. These jurisdictions thus become trapped in the monitoring regime and resources are wasted, both by the local jurisdictions and the federal government, while perhaps less attention is paid to jurisdictions that deserve monitoring.
    We can do better than this ACME-built monitoring system. The country would be better served by placing the onus for bailout on the federal government rather than the local jurisdictions. Unfortunately, by sidestepping the constitutionality question, the Supreme Court has given Congress a free pass on updating the Voting Rights Act. Without the Courts to challenge Congress, we will have to wait another twenty-three years when the current incarnation of Section 4 expires before Congress will revisit the bailout issue.

Posted by Rick Hasen at 09:21 PM

NAMUDNO and the Phantom Exhaustion Requirement

I've been thinking about the issues Nate raises in his post, and I've corresponded privately with some people about this issue. My view is somewhat different from Nate's, though I'm sure there will be a segment of the civil rights community that will think along these lines and argue that nothing should be done with preclearance (not only is that risky, but it gives up an opportunity to craft what Rick P, Sam, Guy, Bruce and Dan T. have called for--not to mention Nate in some of his writings---a new VRA for a new century, because the Court will never act (isn't that the message Pam sends in her piece in the Times?).

The Court never says in its NAMUDNO opinion that a jurisdiction must seek bailout in the future before raising a constitutional challenge. Sure, that's the natural reading of NAMUDNO, but who says natural readings are going to apply when this question returns (they certainly didn't apply to the reading of the bailout rules themselves in NAMUDNO)? Again I'm reminded of the first Florida 2000 case, Bush v. Palm Beach County Canvassing Board. The case contained a lot of dicta suggesting a very aggressive reading of Article II of the Constitution and Legislative power. However, as I detail here, by the time we got to Bush v. Gore, only three Justices embraced that reading of Article II, four rejected it, and two (Kennedy and O'Connor) were silent on the question. That dicta may have been a shot across the bow, but no one was bound by it when it came down to the time to act. The liberals were willing to send that shot across the bow because they did not know where the 5 conservatives ultimately would end up.

Nate could well be right that the Court never passes on this question. But if Congress does nothing, I would not count on a logical but unstated and dicta-implied exhaustion requirement to save the constitutionality of section 5.

Posted by Rick Hasen at 09:12 PM

Persily: Perpetual Constitutional Avoidance?

Here is a guest post from Nate Persily:

    In the immediate aftermath of the NAMUDNO decision, I shared the view espoused by many that this was a placeholder decision that urges Congress to act so that the Supreme Court won't need to declare section 5 of the VRA unconstitutional. After contemplating what the next case might look like, however, I am starting to think that maybe the Court has placed itself in a position where it might never confront the basic constitutional questions surrounding the coverage formula. To understand why, one must work through the four ways such a challenge could get to the Supreme Court.

    First, as with the constitutional challenge in NAMUDNO itself, a covered jurisdiction could argue that Congress has exceeded its authority under the Enforcement Clauses by requiring the jurisdiction to submit its voting law changes for federal approval. The response from the Court would appropriately be an exhaustion-style argument: go seek bailout and if you are denied bailout, then come back and see us. The implication here is that jurisdictions unconstitutionally covered by section 5 -- because they have not engaged in the requisite predicate unconstitutional acts that would justify coverage and preclearance --- should be able to bail out. The coverage formula is only unconstitutional if "good" jurisdictions are unable to bail out easily and that can only be demonstrated once they try.

    That leads to a second potential course to the Supreme Court: appeal from a denial of bailout by the District Court for DC. Then the jurisdiction would argue, also somewhat similarly to NAMUDNO itself, that either bailout should be granted or the coverage formula is unconstitutional. Here, again, the Court can avoid constitutional difficulty (and probably can do so more easily than it just did in Monday's decision). One possibility is that the jurisdiction was appropriately denied bailout and the coverage formula remains constitutional as applied to it (see Tennessee v. Lane for some similar logic on this point). Or the jurisdiction should be allowed to bail out and the bailout statute should be read so as to make it possible for such a jurisdiction, given its voting rights track record, to be able to bail out. The bailout requirements seem individually severable, so I could see the Court rereading them to require, with the most extreme interpretation, for instance, that jurisdictions with a ten year clean record of no intentional discrimination are entitled to bailout. This may contort the bailout statute, but I think severing it in this way (or interpreting it to avoid constitutional difficulty or even vindicating an as-applied challenge to the bailout statute) seems about as easy a course as the one they just took.

    The third way a case gets to the Court is from an appeal from a denial of preclearance by the District Court in DC (akin to Georgia v. Ashcroft). The covered jurisdiction alleges that its voting change is allowed by the Constitution, that the new standard for retrogression (Ashcroft and Bossier Parish-fixes) is unconstitutional, and/or that the coverage formula is unconstitutional. Here again I would expect the Court to read the retrogression standard to avoid constitutional difficulty (which is a tough job, as 30-plus pages of mental gymnastics in my Yale Law Journal piece attests) or simply sever it from the rest of the statute, which might leave the retrogression standard, perhaps, as limited to actual violations of the Fifteenth Amendment. In other words, the Court would allow the voting change to go forward, while still not reaching the question whether the jurisdiction is appropriately covered. The new retrogression standard might be the part of the statute that would most bother Kennedy, given his opinions in the Shaw cases etc. By defanging or even deleting the new retrogression standard, though, the Court should not need to reach the question of the constitutionality of the coverage formula.

    Finally, a case could come to the Supreme Court because a jurisdiction fails to submit a voting change and is then sued in local district court to force them to submit the change for preclearance, and that decision is appealed all the way up. The jurisdiction might defend its actions by saying that the coverage formula is unconstitutional, on its face or as applied to it. Here again, the response from the Court is akin to exhaustion: if you don't want to submit your voting changes for preclearance, try to bail out. If the jurisdiction is unconstitutionally denied bailout, then the Court can deal with it then.

    Of course, each of these situations presents the possibility that the Court will deal with the larger issue of the law's constitutionality. And if we view the NAMUDNO decision as simply a warning shot to Congress, maybe the Court will shoot more directly if Congress does not act soon (which was my initial response to the decision). However, it is also possible that the law could perpetually be read to avoid constitutional doubts so a never to force the Court to earn the headline: "Court Strikes Down Voting Rights Act."


Posted by Rick Hasen at 08:39 PM

Guest Post: Behind the Scenes in NAMUDNO

A blog reader who is a close watcher of the Supreme Court sends along the following observations:

    At the end of your post on Thomas, you wonder if he was seeking to avoid embarrassing the Chief. I think in that one question you have come close to the answer to most if not all of your (and others') speculations: this was a compromise decision, with which no Justice, of any stripe, was entirely comfortable, and it was embraced as widely as it was (eight Justices of deeply differing ideological preferences) and was discussed with as little ad hominem rancor as it was (Thomas' moderation in his critique) because it simply provided a way out of a decisional and institutional corner.

    Years from now, when Justices' papers become available, I strongly suspect that we will discover that the Chief Justice, in the end, simply rode to the rescue of an embattled Court -- perhaps not as an act of courage or statesmanship on his part alone, but as the product of a wide (perhaps unanimous) agreement that this was a moment of high institutional risk, and perhaps moral sensitivity, and that the Court was allowing itself to verge very close to a self-inflicted wound. From the very moment the Court encountered this case, it saw it against a sweeping background of history, and realized that much was at stake, on all sides -- including the Court's own potential reputation for causing or contributing to further racial tension.

    It thus was OK to vent at oral argument, and get everyone's subjective perspectives on Section 5's sweep out into the open. But then a decision had to be written. I would bet that there were attempts by several Justices to shape a decision that would, indeed, strike down Section 5, but the more the drafts circulated, the more monumental the undertaking became. I would not suspect that the Chief Justice then forged, alone, the way out. I would bet that Kennedy and Stevens, and even Scalia, had major roles to play, and perhaps Breyer and Ginsburg, too, but to a lesser extent. Roberts is enough of a craftsman that he would have been entrusted with writing the "final" draft, but it represented a composite of ideas from among the more influential Justices. And, in reading the Roberts opinion closely, one finds that it does, indeed, satisfy all of the internal constituencies within the Court.

    I would even conjecture that there was a wider involvement in the Thomas dissent than Thomas alone. He, like Scalia, is entirely capable of excoriating a majority on a point of high principle, as he sees it, but there is absolutely none of that here. I have suspected that the Thomas opinion (comprehensive as it is, especially in comparison to the rather tight opinion of the Court) at one time was the draft opinion for the majority. It was crafted not to give offense, even while declaring Section 5 to be invalid. It was then easy enough to let it become a solitary dissent; and who better to take the responsibility for it, in the United States Reports, than the one African-American on the Court, one who had personally experienced the racial horrors of the past, and who could thus draw vivid comparisons between that era and the present. It also was appropriate for Thomas to be the dissenter because he has acquired (and earned) the reputation of being the one Justice most willing to cast aside the Court's prior commitments and strike out in bold new directions.

    In a phrase, then, I think what went on here was immensely complicated, not yielding to summary assumptions or conjectures.

Extremely perceptive observations, in my view.

Posted by Rick Hasen at 11:29 AM

Pildes: Going Forward

Rick Pildes has written this guest post:

    Rather than focusing on the Court's opinion, I want to look forward to the future of voting rights. The Supreme Court's decision gives Congress some breathing room, but the decision also puts Congress back on the hook.

    If Congress is willing to take charge of this issue, it should start by recognizing that experience has given us two distinct models of national voting-rights legislation. For the future of voting rights, the most important decision will be which model Congress and the President embrace. If Congress can think outside the box of the law that the Court struck down, the Court's decision will spur the most effective voting laws for the next generation.

    The first model is represented by Section 5 of the VRA, the law the Court just held unconstitutional. It reflects a "targeted," anti-discrimination approach to voting-rights protection. Section 5 is targeted in two senses. First, it defines in advance-- for the next 25 years-- which parts of the country have distinct voting problems that require unique federal oversight. Since 1975, the same nine states (mostly Southern) have been under this regime. Second, Section 5 singled out race-based denials of voting rights as the only kind of disfranchisement that justified aggressive federal protection. The Department of Justice, for example, recently used this law to block Georgia from requiring proof of citizenship to vote, given the error-riddled data bases that would have been used. But the Supreme Court was skeptical about whether the Act would remain constitutional because Congress had difficulty justifying why the same states that had been selected for unique federal oversight in 1975 remain the appropriate states to continue to single out until 2031.

    The second model of voting-rights legislation is a "right to vote" model. It entails universal and general national laws that directly protect the right to vote of all voters nationwide. This model has emerged over the last 20 years. It's reflected in laws like the Help America Vote Act of 2002 and the National Voter Registration Act of 1993. National laws to directly protect the right to vote in all elections -- state and national -- became possible only after the modern Supreme Court established that the right to vote is a fundamental constitutional right. Laws like this do not require justifying why some areas have been singled out; nor do they protect only against race-based denials of the vote. If Ohio enacts citizenship requirements for voting that would be illegal in Georgia, they should be just as illegal in Ohio. If state laws unjustifiably disfranchise elderly voters, or poor voters, or any voters at all, such laws should be illegal even if they are not racially discriminatory.

    In response to the Court's decision, Congress might find it tempting to try to "save Section 5" by tinkering with the formula that determines which areas should be targeted. But why not start by recognizing this targeted model grew from the political and constitutional constraints of earlier eras? For most of American history, including when Section 5 was enacted in 1965, laws affecting voting were left to the States. Congress could legislate to enforce a specific constitutional command, such as the Fourteenth and Fifteenth Amendments bans on racial discrimination. That's why we have so few national statutes that protect the right to vote and why the original ones, such as the VRA, don't guarantee the right to vote in general, but only protect against racially discriminatory barriers to voting.

    Besides reflecting these historical constraints, "targeted" laws like Section 5 are inherently limited today. They require Congress to identify 25 years in advance where voting problems are likely to arise systematically. As we emerged from the era of black disfranchisement in the South, it was not difficult to identify those areas. But today, close elections are most often the best way to predict where manipulative voting practices will arise. Yet the location of close elections inevitably varies. In Presidential elections, the problems in 2000 emerged in Florida; in 2004, in Ohio; in 2012, they could be in Minnesota.

    In addition, to the extent a reformed Section 5 would remain targeted on race only, it would require increasingly complex efforts to sort out whether a law impinging on voting rights is racial in character or not. The Supreme Court that just struck down Section 5, moreover, is likely to permit Congress to ban only those voting laws that can be tied to a racially-discriminatory purpose. In recent years, Section 5 has also had diminishing practical effect. Given all this, an effort to "save Section 5," even if successful, would likely be of more symbolic than practical effect.

    National right-to-vote laws bypass these problems and are likely to have more widespread practical effect. Such laws would secure the vote against all unreasonable and unjustified limitations. They would be the most effective way to protect voting rights now, including those of minority voters. In these laws, Congress could retain a form of administrative preclearance review; such review could be required nationwide for particularly significant voting laws, such as those affecting access to the ballot box.

    The current version of Section 5 is in constitutional jeopardy because a risk-averse Congress simply preserved the status quo when it reauthorized the Act in 2006. In light of the Court's decision, a risk-averse Congress might do nothing or tweak Section 5 in minor ways. But to protect voting rights for the next generation, the most effective way for Congress and the President to respond to the Court's decision is with uniform, tough new measures that protect the right to vote nationwide.


Posted by Rick Hasen at 10:11 AM

The Thomas Mini-Enigma in NAMUDNO

I went back and re-read Justice Thomas's concurrence in NAMUDNO. I just now noticed that Justice Thomas, like Heather Gerken and Ellen Katz, reads the majority opinion as a warning to Congress: "The Court quite properly alerts Congress that s 5 tests the outer boundaries of its Fifteenth Amendment enforcement authority and may not be constitutional."

But I was also struck by something else. Yesterday I noted how weak the statutory argument embraced by the 8 Justices really was, and questioned by Justice Scalia signed on to it. What is curious about Justice Thomas's concurrence is that he completely avoids expressing an opinion on the statutory interpretation question. That's not Justice Thomas's usual way of writing separate opinions. If you think of Shrink Missouri, for example, he knocks down arguments in the alternative (as in, even if Buckley were accepted as good law, the majority's approach....). It would have been like shooting fish in a barrel for Justice Thomas to demolish the majority's statutory interpretation argument, but he did not do so. Perhaps he's the Justice who has shown the most restraint of all, despite the fact that he reaches the most radical decision: declaring section 5 unconstitutional. Did he not want to embarrass the Chief Justice?

Posted by Rick Hasen at 08:20 AM

Issacharoff: On Statesmanship

Here is a guest post from Sam Issacharoff:

    Since Rick brought my comment in the Times into the debate, let me take the opportunity to address some of the issues behind the Chief Justice's statesmanship. To my mind, there are three issues that stand out in the debate over Section 5. The first is a legal one, the second is one about the legislative process, and the third is one about the field of voting rights.

    First, the VRA extension had two great sources of constitutional vulnerability: how jurisdictions came to be covered and how their covered status could end. The brute fact is that most covered jurisdictions are defined by events that happened in 1964, before a large part of their eligible voters and, especially, most of their citizens were alive. That is compounded by the difficulties in place in getting out from coverage if the 1964 conditions no longer obtain. This is why Rick Hasen and others (including me) urged Congress to change the bailout provision in the 2006 amendments -- to no avail.

    Judge Tatel below handled this issue as if it were squarely justified by South Carolina v. Katzenbach and the legislative history of the Act. The critical actors in the months that follow should not forget that the Court unanimously reversed the lower court. As many have noted: a clear warning.

    What Chief Justice Roberts offered was the form of a potential legislative fix. If bailout were simple and routine, then a great deal of constitutional pressure would be taken off of both the formula for inclusion and the problematic timeless quality that the Act now has. It does not avoid all the constitutional issues in continued coverage, as Justice Thomas argued, but for 8 members of the Court it calms the waters. Finding this compromise without reaching in first instance for the constitutional hammer was, in my mind, an act of judicial stewardship.

    This goes to the second point. Statesmanship is generally associated with the political branches, not the judiciary. In light of the Court's opinion, it is noteworthy that serious issues about legislative reform for the 21st century were never part of the congressional dialogue. The Act became an untouchable icon, and the votes were either with us or against us. I do not wish to belabor the point here, but I believe it ill serves the processes of democracy for legislative initiatives to come from the Court and not from robust congressional debate.

    Finally, that raises a third point about the Act. Here I have little to add to what Guy Charles has been arguing both before and since the Court's opinion, and what Bruce Cain and Dan Tokaji noted as well. Increasingly in my view, Section 5 has more misses than hits in addressing the real sources of voting problems in this country. I may be more attuned to some of the costs of some of these collateral consequences, but leave those aside. The simple fact is that if one were drafting a statute from scratch to address the significant voting issues in the U.S. today, it is hard to imagine how it would take the form of Section 5. Certainly Section 5 may still have important value for some of the issues it handles. It is hard to see how it addresses the core issues of the day.


Posted by Rick Hasen at 08:11 AM

Ellen Katz: Roberts Didn't Blink

Here is a guest post from Ellen Katz:

    Several people this week have said that Chief Justice Roberts "blinked" on Monday. I disagree. His opinion in NAMUDNO is calculated, shrewd, and (given what he believes about the statute) institutionally smart. The Chief Justice believes Section 5 of the Voting Rights Act is unconstitutional, but he also recognizes that striking it down is both a big deal and something he would rather the Court not have to do. Monday's contrived statutory holding remands the statute to Congress with a time limit and a warning. Make no mistake, do nothing and we will scrap this statute in the next case.

    Yesterday, Morgan Kousser described the first pages of Chief Justice Roberts' opinion as dictum. Technically, of course, he is right, but I think we would be better served if we understood this portion of the opinion as the functional holding. Sounds strange, perhaps, but consider both the tone and structure of what Roberts has to say. He does not simply announce that this is a tough, unresolved constitutional question. Instead, he offers a blueprint for striking down the statute. In paragraph after paragraph, he relentlessly pounds home the argument for why Section 5 is unconstitutional. He includes no serious counterarguments. His only gesture in that direction is a boilerplate acknowledgment that Congress is a coequal branch and, by the way, that the district court thought the statute was fine.

    True, Chief Justice Roberts then says he need not resolve the constitutional issue because there is an improbable statutory ruling that enables him to avoid (read postpone) reaching that question. Did Roberts blink? Not a chance. This is a savvy move that, as a matter of function if not formal doctrine, stays a constitutional holding. The Roberts opinion, at bottom, says: we are striking down this statute as unconstitutional but staying our order until the next case presents the same question. When that case comes up in a year or two, we will dissolve the stay and strike down the statute (unless something significant about the statutory regime will have changed by then).

    Before oral argument in NAMUDNO, I was hoping (see here) that the Court would find a way to prompt Congress to reconsider Section 5. Monday's opinion prods Congress to do just that.

Posted by Rick Hasen at 08:05 AM

June 23, 2009

The Scalia Enigma in NAMUDNO

There's been lots of armchair psychoanalysis of the Justices in Monday's voting rights case. Heather Gerken says the liberals signed on to Chief Justice Roberts' opinion containing a lot of troubling language about the constitutionality of section 5 of the VRA to send a "crystal clear, united message" to Congress to amend the Act before 5 justices strike it down. There's been debate over whether Justice Kennedy will ever be ready to pull the trigger and declare a crown jewel of the civil rights movement unconstitutional. And of course the Chief Justice either engaged in an act of statesmanship (Sam Issacharoff) or blinked (me).

But what of Justice Scalia? Why didn't he vote with Justice Thomas that the Act was unconstitutional? At oral argument, Justice Scalia was as skeptical of the constitutionality of the Act as the Chief Justice. And the bailout argument ultimately adopted by the Court should make Justice Scalia squirm. When it comes to statutory interpretation, Justice Scalia is a big believer in the plain meaning and following statutory precedent set by the Court. Here, the precedent set in City of Rome was that only political subdivisions that register voters which does not include the MUD could bail out. Here is how the Chief deals with this problem in the NAMUDNO opinion:

    In 1982, however, Congress expressly repudiated City of Rome and instead embraced "piecemeal" bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to "political subdivisions" in a covered State, "though [coverage] determinations were not made with respect to such subdivision as a separate unit." Voting Rights Act Amendments of 1982, 96 Stat. 131,codified at 42 U. S. C. s1973b(a)(1) (emphasis added). In other words, Congress decided that a jurisdiction covered because it was within a covered State need not remain covered for as long as the State did. If the subdivision met the bailout requirements, it could bail out, even if the State could not. In light of these amendments, our logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act--if anything, that logic compels the opposite conclusion.

I would have expected Justice Scalia to respond that Congress did not "expressly repudiate" City of Rome in the 1982 Amendments to the VRA. City of Rome is not mentioned in the 1982 amendments (compare this to Georgia v. Ashcroft and Bossier Parish, which are both expressly repudiated (at least in part) in the 2006 amendments). Nor is the Chief Justice's reading of the statute the most natural reading of what the 1982 amendments did with respect to bailout. Given the controlling Supreme Court precedent in City of Rome, one would have expected Congress to state clearly that bailout would be available even those subdivisions that do not register voters. But that change was never made.

Indeed, though Justice Scalia would not look at committee reports, I did. The 1982 Senate Report (which has been very influential in assessing the meaning of the VRA, see Thornburg v. Gingles), mentions City of Rome's constitutional holding many times with approval, but it never makes the point the Chief does here. Indeed, the only Senate Report reference I could find to the relevant amendment to the bailout provision reads as follows in its entirety:

    THE STANDARD FOR BAILOUT IS ALSO BROADENED BY PERMITTING POLITICAL SUBDIVISIONS IN COVERED STATES, AS DEFINED IN SECTION 14(C)(2), TO BAIL OUT ALTHOUGH THE STATE ITSELF REMAINS COVERED. UNDER THE NEW STANDARD, WHICH GOES INTO EFFECT ON AUGUST 6, 1984, A JURISDICTION MUST SHOW, FOR ITSELF AND FOR ALL GOVERNMENTAL UNITS WITH ITS TERRITORY, THAT (1) FOR THE 10 YEARS PRECEDING THE FILING OF THE BAILOUT SUIT, IT HAS A RECORD OF NO VOTING DISCRIMINATION AND OF COMPLIANCE WITH THE LAW; AND (2) IT HAS TAKEN POSITIVE STEPS TO INCREASE THE OPPORTUNITY FOR FULL MINORITY PARTICIPATION IN THE POLITICAL PROCESS, INCLUDING THE REMOVAL OF ANY DISCRIMINATORY BARRIERS.

(my emphasis)
Of course, section 14(c)(2) is the part of the VRA that defines political subdivisions to be those that register voters to vote. Nothing in the committee report suggests that Congress was trying to change the definition of political subdivision for bailout purposes to overturn City of Rome.
Why did not Justice Scalia descry Chief Justice Roberts' analysis here as "faux judicial restraint," as he did in excoriating the Chief's opinion in Wisconsin Right to Life II? The only answer I can come up with is that Justice Scalia has given up on limiting congressional power when it comes to statutes dealing with race, something he suggested in Tennessee v. Lane. But then why the attitude at oral argument? Why was this not a 7-2 opinion?

Posted by Rick Hasen at 09:57 PM

Ansolabehere and Persily: Deciding Not to Decide...For Now

Steve Ansolabehere and Nate Persily have written this guest post:

    The Supreme Court dodged a bullet yesterday by deciding not to decide the constitutionality of section 5 of the newly reauthorized Voting Rights Act. The decision, which makes small jurisdictions eligible for bailout from the Act, will have little practical impact. It leaves for another day the vexing constitutional question whether the Act's selective targeting of jurisdictions for coverage now exceeds Congress's power to protect civil rights. The Court will eventually confront that question, however, and there are things Congress and the Administration can do now to bolster the constitutionality of the Act.

    The reason yesterday's decision will have little practical impact is that of the 12,000 jurisdictions covered by the Act before this decision only 17 municipalities (all in Virginia) have bailed out since 1982. The expansion of the bailout option to smaller municipalities is unlikely to lead to a flood of requests, given that very few eligible jurisdictions who always could have bailed out have decided to take that step. The rarity of bailout is somewhat of a mystery. Perhaps the criteria for bailout are too difficult or politicians are loathe to take as their cause celebre the escaping from a civil rights law. Or perhaps, as many of the covered jurisdictions themselves have indicated, they prefer to be covered because it gives them a DOJ stamp of approval for their voting laws that they can wave in the face of those who otherwise might sue them. Whatever the reasons for the rarity of bailout, one must suspect that those reasons will still be present for the jurisdictions newly eligible for escaping coverage under the Act.

    Given the concerns over the constitutionality of the Act voiced at oral argument by what seemed like a majority of the Court, the Administration and Congress should take actions now to shore up the Act's constitutionality. First, the Department of Justice should communicate to certain covered jurisdictions their intention not to oppose bailout and in fact, should encourage qualified jurisdictions to seek bailout. Several hundred covered jurisdictions have virtually zero minority population, and therefore pose no threat to minority voting rights. They, along with others that have a spotless record regarding discrimination in voting, should be urged to bail out.

    Congress too can help shore up the Act's constitutionality. It could alter the bailout statute itself, as some have proposed, to make bailout automatic or more prevalent. However, at a minimum it should establish a national reporting system that will allow us to evaluate the quality of democracy among the fifty states. Such a system should include the reporting of all results in federal elections down to the precinct level, so that we can match turnout, registration and other measures of election system performance with census demographic data. It should also expand the election supplement to the 2010 Census Current Population Survey and the American Community Survey by including various election administration questions to assess which voters in which locations are more likely to face longer lines, voter ID barriers, and other aspects of election maladministration.

    There is, of course, a chance that the data will reveal a new coverage formula is necessary or that levels of discrimination against minorities are more consistent nationwide. If so, then Congress should amend the Voting Rights Act before the Court tells it to do so.


Posted by Rick Hasen at 08:46 PM

Charles: Waiting for the Civil Rights Communty

Here is a guest post from Guy Charles:

    It is time for the civil rights community to step up. They have dodged a bullet with the Court's decision to uphold the constitutionality of section 5. But the constitutionality of section 5 hangs on a thin reed. All nine justices agreed that the constitutional costs imposed by section 5 are sufficiently serious even under the least demanding rationality review. The civil rights community cannot simply hope to wait out the conservatives. If the four liberals on the Court truly believe what Chief Justice Roberts wrote on their behalf in NAMUDNO, the future for the current regulatory scheme is dim.

    So far, the debate over section 5 has been fought over whether we have made sufficient progress or not as a country to get rid of section 5. This is not a useful question to ask. We can both acknowledge the progress we've made and focus a voting rights approach that befits the 21st century. So what should the civil rights community push for?

    It could seek a modification of section 5's geographical targeting approach, which generally focuses on states with large populations of voters of color: remove some states from the South, add in some states from the North, and voila. Only this would be a mistake. Even if Congress were politically able to do this, geographical targeting depends upon the ability to predict where voting rights problems will arise, which we cannot do accurately anymore. Additionally, a geographical approach assumes that the targeted states are out to harm voters of color, which is generally no longer true. Perhaps most pertinently, according to the Court in NAMUDNO geographical targeting departs from the "fundamental principle of equal sovereignty" by "treating states differently."

    I would advocate an alternative two-pronged option. First, the civil rights community should focus on solutions for voting problems in federal elections instead of instead of looking at the race of voters. For example, if there are voting registration problems, let’s have permanent federal registers for federal elections and same day registration. If there are problems with ballot design, how about one ballot design in federal elections modified only for regional considerations. They should also look for reasonable compromises where they can. For example, if conservatives want voter IDs in federal elections, let them have it as long as IDs are provided at government expense. This approach would help voters of color because they are disproportionately impacted by ostensibly neutral voting rules and problems in the voting process.

    Second, the civil rights community might also advocate for the creation of an administrative agency to regulate elections in the United States. I am less sure about this approach but it might be worth exploring. This agency would be forward-looking and would have both investigatory and remedial powers. It would protect citizens against race-based discrimination and might focus on the very local level, such as school boards and municipalities, where voting rights issues might go undetected.

    I'm sure that there will be plenty of ideas out there and better than what's recommended here. What the civil rights community should not do is simply preserve the status quo. It is time for the civil rights community to step up to the plate and lead us once again, this time into the 21st century.


Posted by Rick Hasen at 12:13 PM

Cain and Tokaji: Promoting Equal Participation: A Voting Rights Act for the 21st Century

Here is a guest post by Bruce Cain and Dan Tokaji:

    In avoiding the question whether a key section of the Voting Rights Act violates the Constitution, the U.S. Supreme Court has provided a welcome respite for civil rights advocates worried that a cornerstone of racial justice would be decimated. The fact remains, however, that there are some serious cracks in the foundation of voting rights law that need to be addressed. Even though the VRA has been left standing, at least for the moment, the current Congress should get to work filling these cracks promptly. This might be accomplished by creating new legislation that broadly targets barriers to participation among racial minorities, economically disadvantaged, and other vulnerable groups.

    When Congress reauthorized the Voting Rights Act in 2006, it failed to address some of the most glaring voting rights problems that exist today. Foremost among them are practices that may impede participation by people of color and lower socioeconomic status. In order to understanding the shortcomings of current voting rights law, it is necessary to step back in history. In the earliest years of the VRA, the central problems were discriminatory barriers to participation like literacy tests and poll taxes. These practices are sometimes referred to as "vote denial" because they prevented eligible citizens from voting or having their votes counted. It quickly became apparent that eliminating these barriers, while necessary, was not sufficient to ensure political equality for racial minorities. The emphasis thus switched to "vote dilution" -- that is, to practices like annexations, at-large elections, and unfair legislative districts that weakened minorities’ representation, even where they were allowed to vote.

    While vote dilution remains problematic, the pendulum has swung back to vote denial in the years since the 2000 election, which focused attention on voting equipment, inaccurate registration lists, and other barriers to equal participation. Whether or not motivated by direct racial bias, such practices can keep eligible people from voting and having their votes counting. They can also distort the composition of the electorate, by disproportionately excluding racial and language minorities, people with disabilities, students, elderly voters, poor people, and those of limited educational attainment.

    Collectively, these barriers to full participation can be thought of as the new vote denial. Just as poll taxes and literacy tests prevented poor people and racial minorities from voting, some election administration procedures may have discriminatory effects as well. That includes not only onerous identification requirements and overly aggressive purges of voting lists, but also reforms ostensibly undertaken for improving security or lessening inconvenience that may have unintended effects. An example is the move to all-mail elections, which some scholars believe will skew the electorate, making it older, richer, and whiter than it already is.

    As effective as Section 5 has been when it comes to minority vote dilution, it has been remarkably ineffective when it comes to practices that impede people from voting or prevent their votes from being counted. The U.S. Department of Justice almost never objects to new election administration rules or procedural changes that may impede participation. Although the Justice Department is to be commended for its recent objection to Georgia's "voter verification" program, due to its discriminatory impact on African American, Asian American, and Latino voters, this case is the exception that proves the rule. In previous years, it has been extremely rare for new barriers to trigger an objection or a request for more information. This is understandable, since it has lacked either the tools or the will to monitor these practices effectively. Moreover, the coverage formula isn't targeted to places where there's most reason to worry about unfair barriers to participation in the 21st Century.

    The Court's decision gives Congress a second chance to do something about the new vote denial. We recommend that it adopt a new scheme, applicable exclusively to rules and practices that may affect participation, while leaving others to consider what should be done about issues of vote dilution. When it comes to vote denial, a well-designed scheme should appropriately cover jurisdictions that have demonstrated a systematic pattern of low participation, flagging procedural changes that might worsen that problem and incentivizing changes that would improve the situation.

    The task of monitoring the many administrative aspects involved in running an election can be time consuming and overwhelming, especially for disadvantaged groups. Coverage serves the purpose of drawing attention to areas that need special attention. To be effective, a federal administrative process should reduce the costs of monitoring for potentially affected voters. Ideally, a proposed change should trigger higher scrutiny, community input and ultimately final review and arbitration. And since the effects of some proposed new rules might not be known with any reasonable degree of reliability, the review process may need to generate new information and extend over time. Instead of just yes or no, perhaps the answer should sometimes be try it, provide some additional information, and revisit the recommendation later.

    Under our proposed scheme, state and localities would be covered if their participation fell below a certain prescribed level for a set period of time, say three consecutive federal election cycles. Those jurisdictions would be subject to certain special requirements, designed to prevent law and practices that may disproportionately exclude minorities and people of lower socioeconomic status. There are three specific questions that this new regime would have to address: (1) what state and local jurisdictions are covered, (2) what those covered jurisdictions are required to do, and (3) what federal agency would administer and monitor compliance. We discuss these questions in turn.

    First, how extensive would this coverage be? A trigger of falling below the national average in eligible voter turnout for three consecutive Presidential elections would cover 18 states in their entirety, including many southern states with large black populations (e.g. Mississippi, Alabama, Georgia and South Carolina) but also southern states with smaller black populations (e.g. West Virginia, Kentucky), western states with large Latino populations (Texas, New Mexico and Arizona), and jurisdictions outside the south with high minority populations (Hawaii and the District of Columbia). In short, it broadens the coverage to all sorts of low participation groups.

    Second, what would covered jurisdictions be required to do? We recommend that, before implementing a new voting practice, covered states and localities be required to issue an "electoral impact statement," analogous to environmental impact statements. Covered areas would have to report voting statistics in greater detail such as number of failed registration attempts, how many voters were removed from the rolls and why, the number of provisional and absentee ballots counted, the reasons for rejecting those ballots. The idea is that the jurisdiction would have to provide a fuller picture of ballot and registration data in order to help assess why participation was low. In preparing the electoral impact statement, state and local authorities would be required to consult with representatives from the affected communities, including minority groups. For example, if authorities decided to close down an early voting center principally serving the African American community in a given county, they would have to provide a basis for their decision. To the extent that the recommendations of such representatives were rejected, state and local authorities would have to explain why. The electoral impact statement should assess not only the effect on racial and language minorities, but also on people of lower economic status -- an often overlooked group, even within the civil rights community.

    Third and finally, what agency should be responsible for monitoring compliance with these new requirements? This is an especially thorny and difficult question. Under the current scheme, the Department of Justice decides whether to preclear electoral changes in the vast majority of changes, with covered jurisdictions having recourse to federal courts if preclearance is denied. Through most of its history, this process has prompted allegations of partisan conduct on the part of Justice Department officials. In the last administration, the Department's decision to preclear Georgia's restrictive voter identification law and Texas' redistricting plan --both over the objections of career staff -- proved especially controversial. We recommend the creation of a new agency to replace the Department of Justice, in reviewing electoral impact statements and preclearing changes, with the opportunity for judicial review if members of the community disagree with a decision.

    While there is much that would require elaboration, our key point is that Congress must consider a new administrative process that will address barriers to participation faced by both minorities and people of lower socioeconomic status. As useful as Section 5 has been in curbing vote dilution, it has been ineffective in stopping the new vote denial. Now is the time for Congress to develop a system that will address 21st Century barriers to full and equal participation.


Posted by Rick Hasen at 12:04 PM

Gerken: Can Congress Take a Hint?

This guest post is written by Heather Gerken:

    NAMUDNO ended not with a bang, but a whimper. The Court unexpectedly issued a modest opinion on Section 5, neither affirming nor invalidating the provision. The ruling was a surprise, largely because few thought the statutory argument -- which ultimately formed the basis of the Court's opinion --had legs.

    As I argue in the American Prospect online, Section 5's future looks quite dire. The Court quite explicitly casts doubts on all of the obvious arguments for letting Section 5 stand -- that it was okay for Congress to apply the statute selectively to Southern states, that Section 5 imposes a minimal burden on those jurisdictions, that the evidence Congress provided was powerful enough to justify the burden it did impose. The Court has done everything, in short, except pull the trigger and strike Section 5 down.

    Astute Court watchers like Rick Pildes and Tom Goldstein have similarly argued that the opinion should be read as an explicit warning to Congress: fix Section 5, or we will fix it for you. The question is whether Congress will doing anything about it.

    I can easily imagine perfectly rational arguments for Congress not to act. It's hard to figure out a sensible alternative; that is why, as Nate Persily convincingly demonstrates, Section 5 was renewed virtually as-is in the first place. Congress has an unbelievable amount on its plate right now; finding the legislative floor time to pass such an important bill would be quite difficult. And it's not even clear that the Court will, in the end, pull the trigger. After all, Rick Pildes' casebook co-author, Pam Karlan, has offered a far sunnier view about Section 5's fate.

    Finally -- and this is where the rubber meets the road -- I suspect that most people have a lingering suspicion that Justice Kennedy doesn't have it in him to invalidate an iconic provision like Section 5. That was certainly the conventional wisdom leading up to the oral argument. If Justice Kennedy wasn't ready to invalidate Section 5 this time, who is to say he'll be ready to do so the next time?

    There is no way of answering this question, because Justice Kennedy's questions at oral argument are all we have directly from him on the subject, and Justice Kennedy is even harder than most to read during oral argument. Nonetheless, here's what ought to worry Section 5's supporters. Dahlia Lithwick has asked how Chief Justice Roberts could have written this opinion given his extremely pointed questions during oral argument. My question is why the Justices to Kennedy's left on the Court joined an opinion that stated (for what was, de facto, a unanimous Court) that Section 5 imposes "substantial 'federalism costs'" "depart[s] from the fundamental principle of equal sovereignty," and "raise[s] serious constitutional questions" under even the most generous standard floating around in the briefs.

    Why did the four liberals join such an opinion? If Justice Kennedy wasn't ready to pull the trigger today, those Justices were presumably free to say whatever they wanted about the constitutional question, and it's hard to imagine that Chief Justice Roberts' gloomy statements were precisely what they wanted to say. Perhaps agreement on these points was essential to get Justice Kennedy on board, though I doubt it. Justice Kennedy is perfectly capable of writing separately, as the 4-1-4 decisions the Court has recently handed down confirm.

    The real worry for supporters of Section 5 is the possibility that the Court's liberals thought that sending a crystal clear, united message to Congress was Section 5's best hope. That is, the four Justices on the Court may have been as convinced as many commentators are that Section 5 will fall when the case returns, and they were hoping that a unanimous opinion would light a fire under Congress. To me, the fact that the four liberal Justices joined the opinion represents a pretty big hint that Congress needs to act. The question is whether Congress can take the hint.

    As part of a joint project with the Tobin Project and The American Prospect, a bunch of top academics have been brainstorming about what Congress might do to protect Section 5 from invalidation in light of the Court's opinion. For those interested, the American Prospect will feature a series of guest blogs on the subject during the next day, and I've linked to several white papers on Tobin's website here.


Posted by Rick Hasen at 08:15 AM

NAMUDNO Roundup

Howard Bashman links to the major papers and editorials.

In addition, see:

Luis Fuentes-Rohwer

Guy Charles

Tracie Powell

One of the questions I asked yesterday is about the reaction of challengers to the law. This NYT article includes: "Christian J. Ward, a lawyer for the utility district, said the ruling was "a complete victory as far as we’re concerned.'" This Times article quotes Ed Blum: "The question of the constitutionality will await another lawsuit,....and I am confident one will be filed sooner rather than later. We have won the first battle, but the war is not over." This AJC article quotes Rep. Westmoreland, with whom I've tangled before.

UPDATE: More from NPR and Text and History.

Posted by Rick Hasen at 08:04 AM

June 22, 2009

Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked

Despite Chief Justice Roberts' longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5's constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an interpretation of the Act virtually no lawyer thought was plausible. And once again he has been able to get the Court to reach an outcome he desires through statutory interpretation and the doctrine of constitutional avoidance. Still, this is a much greater victory for supporters of the Voting Rights Act (and especially for Justice Souter) than for Roberts: indeed, one price paid to get the liberals on board was a concession that the question of the standard to apply to judge Section 5's constitutionality was unsettled: it might be the strict "congruence and proportionality" standard, or it might be something much weaker, akin to rational basis. All in all, a much better day for supporters of the Act's constitutionality than I and most other observers expected. Here is some elaboration and a few additional thoughts.

1. Background. Section 5 of the Act requires jurisdictions with a history of discrimination on the basis of race to get permission, or "preclearance" from the DOJ (or a three-judge court in DC) before making any changes in their voting rules, from big changes like redistricting to moving a polling place across the street. A "covered jurisdiction" that can demonstrate under a strict test that it no longer discriminates can "bail out" of coverage under the Act. But only 17 jurisdictions (all in Virginia and all handled by Gerry Hebert---see footnote 1 of Thomas concurrence) have ever been able to bail out, and it had been understood that only states and political subdivisions that register voters (which the utility district does not) are allowed to apply for bail out. The Court avoided the constitutional question whether Section 5 exceeds congressional power because there's not enough evidence of intentional discrimination by these covered jurisdictions through a holding that the utility district is entitled to ask for bailout.

2. Justice Souter's legacy? This outcome may have been the handiwork of Justice Souter, and one of his lasting legacies. At oral argument, Justice Souter asked the following to the MUD's lawyers: "Well Mr. Coleman, this is important to me. Do you -- do you acknowledge that if we find on your favor on the bailout point we need not reach the constitutional point?" Clearly this outcome was in Justice Souter's mind early on. Justice Ginsubrg made similar points early on. But the conservative Justices did not seem convinced, as the issue was decided in the earlier City of Rome case and the language of the section seemed quite clear that the utility district could not bail out. (Indeed, in my Slate preview of the case before oral argument, I noted that "Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental....What's especially worrying about NAMUDNO is that the case does not provide the court with an easy incremental way out: If a majority of the justices want to side with the challengers to the Voting Rights Act, there's not much they can do short of holding the act as broadly unconstitutional....The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there's no good statutory loophole, the larger constitutional question seems unavoidable.")

3. Chief Justice Blinks. Chief Justice Roberts was clearly hostile to the government's position during oral argument. ("Counsel, the -- the -- our -- our decision in City of Boerne said that action under section 5 has to be congruent and proportional to what it's trying to remedy. Here, as I understand it, one-twentieth of 1 percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment."). It is clear he thinks the Act is unconstitutional under the "congruence and proportional" standard, and he's on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I've repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.

4. What of Justice Kennedy? He was universally seen as the key to this case. As I noted in my last point, he may have embraced the bailout position and then everything else fell into line. Or maybe the Chief took the lead here. We just don't know the role each played behind the scenes.

5. What of the future of section 5 of the Voting Rights Act? This case puts the issue off for a few years---it does not eliminate it. I see it like the first Florida case (Bush v. Palm Beach County Canvassing Board). That too was a unanimous opinion that masked deep divisions in the Court that became clear in Bush v. Gore. Eventually the section 5 question will come back to the Court, but it will likely be two or three years at the least. It may come when a state like Georgia (whose governor argued against the constitutionality of Section 5 in a NAMUDNO amicus brief) files a suit challenging the unconstitutionality. Or maybe NAMUDNO returns if the MUD cannot get a bailout. Who knows what the Court will look like at that point? If the same 5 conservative Justices are on the Court, they could well embrace the position of Justice Thomas's concurrence here, which holds section 5 unconstitutional (in a remarkably short concurrence given the importance of the question).

6. The political ramifications. The key political point is that Section 5 will remain in place during the next round of redistricting, and it will be redistricting supervised by the Obama Administration's DOJ. We have already seen that the Obama Administration appears more protective of voting rights than the Bush Administration's DOJ. So this will matter a great deal for the next decade of politics in terms of minority electoral success, even if Section 5 is struck down next decade.

6. Citizens United. I have suggested that the constitutional issue in this campaign finance case too could be skirted through the same doctrine of "constitutional avoidance." I am working on something about how important this doctrine has become in the election law field.

Posted by Rick Hasen at 08:00 AM

June 17, 2009

Senator Specter on NAMUDNO, Congressional Power to Renew the Voting Rights Act

Back in 2006 when I testified before the Senate Judiciary Committee about congressional power to pass a renewed section 5 of the Voting Rights Act (based upon this 2005 law review article considering the question), I remember being impressed by Senator Specter's questions to the panel. Not only did he seem to be legitimately interested in the answers that panel members were giving, he seemed really to be (the only Senator) struggling with how to craft a renewed VRA that would pass constitutional muster before a Supreme Court increasingly skeptical of broad congressional power in this area.

I was reminded of that when I saw this letter that Senator Specter sent to Judge Sotomayor about the kind of questions he intends to ask at her confirmation hearing. Though the letter is directed to Judge Sotomayor, it takes a not-so-subtle shot at Chief Justice Roberts' views of congressional power, first as expressed at his Supreme Court confirmation hearings, and then as expressed at the oral argument in NAMUDNO.

Posted by Rick Hasen at 11:27 AM

June 15, 2009

Reading the Statistical Tea Leaves on Justice Kennedy at Oral Argument in NAMUDNO

Much has been made of Justice Kennedy's comments at the NAMUDNO oral argument, leading supporters of Section 5 to expect the worst and prepare a legislative response. But the question has been raised about how much to read into comments at oral argument.

Along comes a fascinating paper on oral argument questions and the supreme court by Epstein, Landes, and (Richard) Posner. The paper is so rich, and well worth reading, but I want to pull out a snippet about Justice Kennedy's partial exceptionalism, which might give a bit of comfort to supporters of NAMUDNO--though the trends are mixed. This is from pages 16-17 of the pdf (footnotes omitted and my emphases added):

    Even after we control for the direction of the lower-court decision and the participation of the United States, the number of questions and the total words in question still provide a reasonable predictor of most Justices' votes. Regardless of the way in which we measure questions, the variables are always significant (p ≤ .05) and have the expected sign for Breyer, Ginsburg, Scalia, Souter, and, with one exception, Stevens. For Roberts, questions to and words in questions to the petitioner are more predictive of his vote than are questions to the respondent; for Alito the reverse holds. The one exception is Kennedy; none of his question variables produces a statistically significant coefficient.

    This is consistent, as explained earlier, with his being the swing Justice. Kennedy's and Thomas's questions (or in Thomas's case the absence of questions) to the petitioner and respondent have no significant effects on their votes; but might their votes be influenced by the questions of other Justices? The question is explored in the second part of Table 12. All eight regression coefficients have the expected signs--that is, Kennedy and Thomas tend to vote for the outcome signaled by the questions asked by the other Justices--and seven are statistically significant. Unsurprisingly, the effects tend to be smaller than the corresponding effects of a Justice's own questions.

    We also considered whether Kennedy's and Thomas's votes are more responsive to questioning by other conservative Justices than to questioning by liberal Justices. The answer is yes, but most of the regression coefficients (not shown in Table 12) are not statistically significant. Both Thomas and Kennedy are less likely to vote for the petitioner the more questions conservatives ask the petitioner (Thomas, significantly so); and Thomas and Kennedy are more likely to vote for the petitioner the more questions conservatives ask the respondent (although the regression coefficients are not statistically significant). Kennedy but not Thomas is significantly less likely to vote for the petitioner the more questions the liberals ask the petitioner's lawyer. Kennedy's votes are not affected by the number of questions the liberals ask the respondent's lawyer. Thomas's votes are affected, but the influence runs counter to our other findings: the more questions the liberal Justices ask to the respondent, the more likely Thomas is to vote in his favor (p ≤ .10).

    The ideological variable in Table 12 has a significant positive effect on the voting of the five conservative Justices and a negative effect on the voting of the four liberal Justices. For the latter group, however, the negative coefficient is significant only for Breyer. The implication is that the conservative Justices, plus Breyer, have a stronger political commitment than the liberal Justices, other than Breyer. Petitioners won about 69 percent of the cases in the period covered by our study, but when the petitioner was appealing a liberal lower-court decision the figure exceeded 90 percent for Scalia, Roberts, and Thomas and 75 percent for Alito and Kennedy. The corresponding figure for the liberal Justices is less than 50 percent, but it is statistically significant only for Breyer.

Posted by Rick Hasen at 02:29 PM

June 12, 2009

"Justices May Strike Down Part Of Voting Rights Act"

NPR offers this report. A snippet:

    When the Supreme Court strikes down a significant law, the Justice Department often comes back with a proposed change that would address the court's concerns. Sources say civil rights is such an important part of this administration's agenda that the Justice Department does not want to wait weeks or months to respond to a decision gutting the Voting Rights Act.

    That's why lawyers at the Justice Department are playing a complicated game of chess right now, trying to forecast the Supreme Court's potential moves so the department has responses ready.

    The leader of the Justice Department team is an election law expert named Sam Hirsch. He arrived at Justice a few months ago from private practice. Neither he nor anyone else at the Department would comment for this story.


Posted by Rick Hasen at 01:35 PM

May 15, 2009

More on Standing and NAMUDNO

Scott Rafferty wrote the following post on the election law listserv, which I reprint here with permission:

    Rick points to Gerry Hebert's detailed analysis of the distinction between "facial" and "as-applied" challenges in NAMUNDO, arguing that the procedural abandonment of the former might create a way for the Court to avoid a substantive decision in NAMUNDO. I'm inclined to think that the district court was right to construe the amended complaint as retaining a "facial" element and suggest the confusion involves the conflation of several concepts within this dichotomy.

    I suggest that we use the term "facial" to mean a number of slight differently things: (1) an exception from standing doctrine for First Amendment plaintiffs prior to any enforcement, (2) self-evident textual invalidity, as opposed to invalidity as a result of consequences, (3) invalidity as a matter of law, without disputable factual arguments, and (4) a rulemaking challenge or other attack on legislative authority, as opposed to an injunction or declaratory relief action.

    Dick Fallon has a Harvard Law Review article on facial v. as-applied challenges (and third-party standing) in the First Amendment context, which is a good identification of the issues. 113 Harvard Law Review 1321. Can a pre-enforcement plaintiff challenge a specific application of legislation to its own situation without bearing the burden of a "facial challenge" to show that the four corners of the legislation can never be validly applied? Can a post-enforcement plaintiff obtain declaratory or injunctive relief that goes beyond its own situation? Fallon analyzes these questions as being about the binding nature of precedent and the proper scope of injunctive relief. Facial and as-applied challenges are almost always concurrent, so the distinction - while helpful in explaining why the court grants broad or narrow relief - is seldom dispositive.

    However, I have struggled with these terms in the Preminger case, which involves a unique situation in which facial and as-applied challenges are in different courts. The VA banned voter registration, subsequently invoking as Nixon-era regulation giving unfettered discretion not to authorize "demonstrations." (The APA was not extended to the VA until 1982.) The 1982 Act gives Federal Circuit exclusive jurisdiction over the APA rulemaking challenge, which the 9th Circuit confusingly calls the "facial" challenge. The VA effectively argued that ANY substantive challenge that threatened to invalidate application of the rule outside the specific building (in which the arrest was attempted) was a "facial" challenge - and therefore within the exclusive jurisdiction of the Federal Circuit. Then, they told the Federal Circuit that the "facial challenge" was limited to the four corners of the text, and that the Salerno rule immunized the rule if there was a single application (such as a violent demonstration unrelated to voting registration) that would be constitutional - and that any arguments about voter registration needed to be directed to the district court. When the Federal Circuit sustained the rule, the district court decided that the decision, by validating unfettered discretion, deprived the plaintiffs of further standing to bring the "as applied" challenge - and dismissed without deciding the merits. The 9th Circuit disagreed, finding standing but (assuming a few facts not in evidence) "affirming" on the merits. The district court has invited a motion for relief from judgment, which will be heard the day after Memorial Day in San Jose.

    The Salerno rule (from an criminal procedure case) states that a statute cannot be declared unconstitutional on its face unless it is unconstitutional in all its applications. The rule has been dismissed as dicta, as a series of cases have allowed pre-enforcement challenges to First Amendment restrictions. The theory here has been that the EXISTENCE of the restriction, prior to any actual enforcement, could infringe speech. A corollary, in my view, is that a post-enforcement challenge can make arguments that logically imply that the legislation can NEVER be enforced, ie, is invalid "on its face." In Preminger, we sought a nationwide injunction of the rule (and declaratory relief), arguing that the Federal Circuit's exclusivity was limited to the formal "setting aside" that removed the rule from the CFR. Otherwise, there would have to be 16,000 as-applied challenges - one for each of the VA's buildings.

    Last year's Washington State Grange case revived the Salerno rule in the specific context of an election law case. I think this is bad news for those who think courts should decide constitutional challenges before, not after, election disputes or other highly developed fact patterns, such as a declined bailout petition. But it also suggests that Mr. Hebert may be on to something.

    (And advice on this month's Preminger hearing, especially from jurisdictional experts, is always welcome.)


Posted by Rick Hasen at 08:00 AM

May 14, 2009

Another Way Out for the Supreme Court in NAMUNDNO?

I've been very pessimistic about Section 5's chances of surviving in the Supreme Court, going so far as to suggest new congressional legislation that could moot the case. I don't see any movement in that direction.

But Gerry Hebert offers a technicality that could allow the Court to reject the plaintiff's challenge and leave the issue open for another day. You can read his post for the details, but the basic thrust is that, though the district may have standing to raise a facial challenge to the law, in fact in its lawsuit below the district may have abandoned the challenge, raising only an as applied challenge. For reasons Gerry explains, there well may not be standing to bring such an as applied challenge.

If (and it is a big if) Justice Kennedy does not want to decide this case right now, I'm sure he'd find at least four more votes willing to say that there is a lack of standing. The upshot would be that the question of section 5's constitutionality would await a new lawsuit (assuming another jurisdiction not presenting the same standing issues) or an amended lawsuit in NAMUDNO, buying a couple of terms before the issue returns to the Supreme Court. By then, perhaps Congress would have fixed some of the constitutional issues with the VRA, or there could be changes in Supreme Court personnel (though that is not overly likely in a way to influence the outcome of the vote).

Especially if the Court does something bold in the campaign finance case (such as striking down the longstanding ban on the spending of corporate treasury funds in federal elections), it might want to leave the VRA issue for another day.

Posted by Rick Hasen at 01:41 PM

April 30, 2009

Could Congress Moot NAMUDNO By Passing the Proactive Bailout Amendment Now?

Here's an admittedly crazy thought.

When Congress was considering amendments to the Voting Rights Act in 2006, there were a number of proposals by academics to fix the Act. In my testimony before the Senate Judiciary Committee, I noted four possible fixes to help preserve the measure's constitutionality, including updating the coverage formula, proactive bailout, a shorter time period for renewal, and being more careful about reversing Georgia v. Ashcroft.

In terms of proactive bailout, I pointed to Mike McDonald's excellent contribution to The Future of the Voting Rights Act book discussing such a proposal. I then pushed proactive bailout publicly, offering a specific draft amendment (followed up by others' suggestions for improvement)and a Roll Call oped. In the strange bedfellows department, Rep. Westmoreland offered my amendment, which went down to defeat. When it was defeated, I wrote (on July 13, 2006): "I will now just worry that Justice Kennedy, the likely swing voter when VRA reauthorization ends up back before the Supreme Court, will look at the defeat of the bailout amendment as evidence that Congress has not taken seriously its admonition in the new federalism cases and his voicing of concern over the use of raced based remedies in a series of cases culminating with LULAC. I very much hope to be proven wrong about the Supreme Court." (Westmoreland, in contrast, was happy his amendment failed, for the same reason as I was upset.)

This is some longwinded history to my current point. If Congress passed the bailout amendment now, it could moot the case before the Supreme Court, and forestall damage potentially beyond section 5 that an opinion striking down section 5 could cause.

If Democrats and the civil rights community got behind this, it is hard to believe that a measure that alleviates the burdens of the VRA would be filibustered by Republicans in the Senate.

Am I crazy?

Posted by Rick Hasen at 02:45 PM

Katz: NAMUDNO, Ricci and Bush v. Gore

Ellen Katz sends along this guest post:

    In his post yesterday, Guy Charles observes that several of the justices in NAMUDNO were animated by their deep suspicion of Congress. Neal Katyal and Debo Adegbile cited record evidence as supporting and justifying particular congressional findings and beliefs, but these claims rang hollow to Justices convinced that Congress made no actual findings and held no actual beliefs beyond a conviction that it would reauthorize this thing no matter what. The record, in their view, was assembled not to inform and guide decisionmaking but instead to justify a preordained result. Observe Justice Scalia's query to Debo: "Do you ever seriously expect congress to vote against a reextension of the Voting Rights Act?"

    Guy rightly links this skepticism about Congress with suspicion the Justices voiced last week in the New Haven firefighters case where several of the Justices seemed convinced that New Haven couldn't be trusted to assess whether the disputed test was a BFOQ, because these Justices believed the city was going to throw the test out once the racially disparate impact was identified. A particular racial outcome was desired and it was going to be achieved, no matter what, or so some Justices seemed to believe.

    If a majority of the Justices pursue this line of thinking, both Ricci and NAMUDNO are lining up as plausible sequels to Bush v. Gore, decisions in which the Court so mistrusts a democratically accountable actor that it denies that actor the deference that it would seemingly otherwise be due. In Bush v. Gore, this sentiment manifested itself not in the substantive equal protection holding, but instead on the question of remedy, namely the Court's refusal to remand the case to the Florida Supreme Court. In both Ricci and NAMUDNO, judicial mistrust is more likely to shape the substantive holdings-- in Ricci, by racheting down the amount (and perhaps whole eliminating) race consciousness as a permissible consideration under the Equal Protection Clause, and in NAMUDNO, by racheting up dramatically what Congress must show before reauthorizing (and possibly enacting) civil rights legislation.


Posted by Rick Hasen at 10:24 AM

NAMUDNO: The Answer to My Question Appears to Be "Yes"

My Slate commentary title posed a question that most observers now believe is most likely to be answered in the affirmative: a majority of the Court is likely to kill section 5 of the VRA, though some hold out hope of Justice Kennedy finding a way to forestall that event a bit or lessen its blow.

One thing that is clear to me is that if this case stands and falls on empirical evidence of intentional discrimination by the states, section 5 falls. Objection rates are inadequate both because their number is so low and because many of the objections were not interposed for intentionally discriminatory conduct. The Section 2 analysis also is methodologically questionable.

For section 5 to stand, Justice Kennedy would have to accept at least one of these three points: (1) empirical evidence cannot be gathered effectively, precisely because section 5 has been such a good deterrent, and any attempt to compare covered v. non-covered jurisdictions now is bad social science because, as Ellen Katz put it, one patient has undergone treatment and the other has not; (2) Congress is entitled to substantial deference, perhaps especially in the area of eradicating the effects of past discrimination; (3) preclearance is not all that burdensome for covered states, and the reason that more states have not tried to bail out is that submitting preclearance is cheaper than bailing out.

Justice Kennedy, however, in his questioning seemed to reject all of these arguments. He repeatedly called for comparative statistics, he stated that deference was not appropriate given the high federalism costs (the "lesser sovereignty" of Alabama), and his belief that the law imposes "substantial burdens" on covered states. My sense (channeling my inner Rick Pildes) is that these burdens are as much expressive harms as real financial burdens: the federal government is sending a message that these covered states are less entitled to their full sovereignty than other states.

Though I agree with Nate (linked below) that Justice Kennedy may not want to be the one to cause the headline: "Supreme Court Kills Voting Rights Act" (or, more accurately, kills section 5), he sure seemed more disturbed by the prospect of letting the law stand.

I have been warning about the problem with a straight-out preclearance for years, but the civil rights community decided to roll the dice, and got Congress to go along with them. I really thought my proactive bailout amendment would have helped a tremendous amount toward preserving section 5's constitutionality.

In terms of additional analysis, addition to commentary linked yesterday (here and here), Howard links to the major news stories. Here are a few that Howard did not yet pick up:

Rodger Citron (Findlaw)

Nate Persily

National Law Journal

Atlanta Journal-Constitution

The Hill

Text and History

Posted by Rick Hasen at 08:00 AM

Cox on NAMUDNO Argument

Adam Cox sends along the following guest post:

    The NAMUDNO argument did not go well for defenders of the Act. As Heather Gerken, Ellen Katz, and others have pointed out, the Justices spent a tremendous amount of time asking for comparative evidence--that is, evidence that intentional discrimination is a more significant problem in covered than non-covered jurisdictions. Neal Katyal tried hard to resist this approach, arguing that the Court should ask only whether things are bad enough in Texas to warrant Section 5's coverage there. But time and again Justice Kennedy said that he was worried that Congress didn't do enough to compare voting practices in covered with non-covered areas.

    The demand for comparative evidence reflects a basic mistake that several folks have pointed out on the listserv. If Texas doesn't look so bad relative to other states, there's no way to know whether that's because discrimination isn't a problem in Texas, or instead because discrimination is a problem but Section 5 is an effective deterrent.

    Even if we put aside that problem, however, both the Court and the lawyers repeatedly got the comparative evidence plain wrong during argument. More than half a dozen times, data from Section 2 lawsuits were cited as comparative evidence showing that discrimination is worse in covered than uncovered jurisdictions. Counsel for the intervenors said that these lawsuits were the "best evidence" that things were worse in the covered jurisdictions, and Justices Souter, Breyer, and Ginsburg relied repeatedly on these data as important empirical support for the Act. The problem is that the data from these lawsuits simply do not support the conclusion that discrimination is worse in covered than uncovered jurisdictions.

    The Section 2 lawsuit data discussed during the argument were part of a report submitted to Congress. That report argued that the data demonstrated higher levels of discrimination in the south because, from 1982 to 2005, the success rate of section 2 suits in covered jurisdictions was higher than the success rate of litigation outside covered areas. But as Tom Miles and I have explained here on Rick's blog, in a Columbia Law Review article, and in a colloquy with Ellen Katz, who authored the original report, the data do not support any comparative claims about the South.

    I won't retrace all of our discussion here, but I think it's important just to note the three central reasons why the data can't do the work that the lawyers or the Court might want them to do. First, while a summary comparison of lawsuits in covered and uncovered jurisdictions does suggest a disparity in success rates across covered and uncovered jurisdictions, this difference disappears when we run regressions to control for factors other than coverage itself. In other words, once we control for other variables (including, importantly, the identity of the judges), there is no statistically significant difference between success rates in covered and uncovered jurisdictions.

    Second, and most fundamentally, it is a mistake to interpret differences in litigation success rates across jurisdictions as evidence of differences in the underlying levels of discrimination. The central methodological difficulty with drawing inferences about the extent of discrimination from litigated Section 2 cases is that the sample of cases is almost surely not representative of the entire class of voting rights claims. This is a problem that is so pervasive that it has a label among empirical scholars--it is known as the "Priest-Klein" problem. And fancy monikers aside, it is the intuitive reason why no one thinks that the success rates in tort lawsuits in Illinois are a solid source of information about the level of tortious conduct in the state, and why no one thinks that conviction rates in criminal cases in New York are a meaningful measure of the state's crime level.

    Third, even if we ignore these selection problems, the data quoted at oral argument are problematic because they mask a trend. The Section 2 study surveyed a two decade period and identified a difference between covered and uncovered jurisdictions over that period. But an average difference over two decades does not fit the conclusion that a difference justifying Section 5's reauthorization remains today. And, in fact, the Section 2 data reveal that success rates in covered and uncovered jurisdictions have converged over time. In the 1980s and early 1990s, courts in covered jurisdictions were indeed more likely to find liability than courts in uncovered areas. But from 1994 to the end of the study in 2004, plaintiff success rates were nearly identical in covered and uncovered areas.

    Tom and I do not believe that the convergence of success rates in recent years means that discrimination is no worse today in covered than uncovered jurisdictions. As we have emphasized repeatedly in our work, the success rates in Section 2 litigation are simply not a good measure of discrimination. Accordingly, our analysis should not be used to suggest that things are no worse today in the south than anywhere else. Conversely, however, the data discussed during the argument are not evidence of the opposite; they cannot provide the comparative evidence that things are still worse in covered jurisdictions. Much as the Court might like them to, these data can't help resolve the question of Section 5's validity.


UPDATE: Ellen Katz sends along the following response:
    Adam Cox's post repeats a series of claims to which I have already repeatedly responded, both on this blog and elsewhere. See here , here, and here.

Posted by Rick Hasen at 07:33 AM

April 28, 2009

Katz: Reports of my transformation are greatly exaggerated

Ellen Katz sends along the following guest post:

    Rick links to today's NY Times article on NAMUDNO, and suggests that my views on the constitutionality of Section 5 have changed. Not so.

    In the piece, Adam Liptak quotes me to say that Obama's election "arguably presents the moment when Congress should close out this regime." My point is not that Obama's election shows that Section 5 is no longer needed. Indeed, it is my view that the evidence we have about the election offers grist for both sides of the debate.

    Instead, my point is that Congress, not the Court, must evaluate this evidence in the first instance, and that the Court should find a way to send this matter back to Congress for such consideration.

    Just to be clear, I think that the Act was validly passed in 2006 - in part based on a record to which I have contributed. But I also think that Obama's election is not an event that can or should be ignored.

    As I said to Adam, Obama inexorably shapes how we understand Section 5 today. This is why I recommend that the Court take the unusual step of finding a way to make Congress take a fresh look at the law.

    I explain my position, which has remained unchanged, in the National Law Journal.


Posted by Rick Hasen at 09:33 AM

March 28, 2009

Want to Learn More about the Northwest Austin Municipal Utility District No. 1, and Why The District Wants to Overturn the Crown Jewel of the Voting Rights Act?

The don't miss Jess Bravin's very interesting piece in today's Wall Street Journal.

Posted by Rick Hasen at 09:03 AM

March 26, 2009

The Misguided Effort to Explain Obama to the Court--or--Why Obama Really Matters and What the Court Should Do About It

Here is a guest post from Ellen Katz:

    On April 29, the Supreme Court will hear argument on whether Section 5 of the Voting Rights Act remains constitutionally justified. The question has long been anticipated and many people, myself included, have written on the issue. But while most of the arguments being presented to the Court are familiar ones, a remarkable new claim has emerged in the briefs and commentary surrounding the case: Barack Obama's election as President of the United States is repeatedly presented as an event that critically informs the constitutional validity of the VRA.

    Opponents of the Section 5 preclearance regime are urging the Court to view Obama's election as proof the requirement is obsolete. The Appellant's opening brief, Georgia Governor Sonny Perdue's amicus brief, commentary on the case by Abigail and Stephan Thernstrom, Ken Blackwell, George Will and others all present support for Obama among white voters in 2008 as relevant evidence showing that Section 5 is no longer needed. On the other side, supporters of the Act say Obama's victory confirms Section 5's continued importance. The claim here rests largely on meager white support for Obama in places covered by Section 5, and is being advanced in Trevor Potter's amicus brief on behalf of former Republican officerholders, the New York Times editorial page, Jeffrey Toobin in the New Yorker to name a few. Taking no position on outcome, Nate Persily's brief with Steve Ansolabehere and Charles Stewart is devoted exclusively to racial bloc voting patterns in the 2008 election, evidence they suggest will be relevant and useful to the Court.

    The Court should ignore them all and refuse to weigh in on the significance of Obama-s election--at least for now. Whether or not the Obama presidency is a "gamechanger" is not something the Justices should decide in this case. To consider Obama's election at this juncture would fundamentally alter the legal inquiry and amount to an ill-advised power grab by the Court. Rather than asking whether Congress had or has good reason to think Section 5 is still needed, the Justices would be deciding for themselves whether, in light of Obama's election, reauthorization is a good idea today.

    The significance of Obama's election for the Voting Rights Act is difficult to assess. Obama was an unusually talented candidate running a high profile, well-funded campaign that elicited tremendous turnout at a moment when the stars arguably aligned for the Democratic nominee. Even so, Obama lost decisively in every single state wholly subject to the preclearance requirement, and won only narrowly in three states partially subject to Section 5, in all garnering fewer votes from whites in the south than he received nationwide. Partisanship alone cannot easily explain this differential. John Kerry did significantly better among white voters in covered states in 2004 than did Obama last year. What is more, the places where white support for Obama was most meager were also the places in which African-American voters offered Obama crucial support either during the primary or the general election.

    In all these places, Section 5 actively shaped the electoral rules Obama confronted. We do not know how Obama might have fared in 2008 absent this regulatory regime. Perhaps Section 5 was superfluous. Perhaps, however, Section 5 is what guaranteed Obama a fair shot. These are difficult questions the Court is not equipped to decide today.

    The issue is, nevertheless, not one the Court can or should entirely ignore. Obama's election inexorably shapes the lens through which Section 5 is now understood. Obama's presence in the briefs and commentary surrounding the case shows this, even if these references might technically be dismissed as legal error. The Court might well attempt to ignore the election and examine the 2006 evidence with willful blindness to the events that followed. This, however, poses a real danger as the Obama presidency cannot help but influence how the Justices will view the validity of Section 5 today. The Court should not pretend otherwise.

    There is one thing the Court can and should do: step back and let Congress evaluate the significance of Obama's election in the first instance. To be sure, the Court lacks an obvious way to give Congress this opportunity. But feasible options exist. The Justices might do something as simple as hold the case until the end of the current congressional term so that Congress might consider the import of Obama's election. Alternatively, the Court might prod Congress more: it could strike down the statute as a burden that cannot permissibly be maintained absent congressional consideration of Obama's election, while staying its order for a period long enough to allow for Congress to act. (Although the latter path would indeed require some consideration of Obama's election, it would amount to no more than taking judicial notice of the fact that Obama's election is of such magnitude that Congress must take another look before maintaining this burden on the States.) Neither approach is unproblematic, to be sure. But either means the Justices need not engage in the treacherous task of finding and evaluating facts Congress never considered or pretending to ignore what nobody can ignore.

    Congress may, of course, repeal, refine, or simply retain the preclearance requirement. It should weigh these options carefully. The Obama Justice Department, for its part, can play an important role in all this, too. It should use the time it would gain to implement a new, assertive stance with regard to Section 5. Many counties now regulated by the statute are eligible to free themselves from the preclearance requirement if only they would apply to be released from the regime. The Department of Justice should identify places with good voting practices and immediately offer agency support for such "bailout." At the same time, the Department should actively assist local leaders in places that do not currently qualify for bailout to develop strategies that would make them eligible for bailout in the coming years. Doing so would refine Section 5's reach, and activate a more vibrant and flexible remedial program even if Congress retains the Act otherwise unchanged.

    As John Lewis said: "Barack Obama is what comes at the end of that bridge in Selma." It was a disrupted civil rights march on that Selma bridge that first propelled Congress to enact the Voting Rights Act nearly a half century ago. Obama's election may present an appropriate moment to bring the preclearance regime to a close. Or it may be proof that, notwithstanding our historic progress, much work remains to be done. Either way, the judgment should be Congress's to make in the first place. The Obama presidency is a terrible reason for the Supreme Court to toss out the statute now.

Posted by Rick Hasen at 01:42 PM

March 25, 2009

NAMUDNO Amicus Briefs Supporting the Government

Leadership Conference

Jurisdictions that Have Bailed Out (Hebert)

Brennan Center

Former Republican Elected Officials (William S. Cohen, former Secretary of Defense and Member of the U.S. Congress; Robert "Bob" Dole, former Senate Majority Leader and 1996 Republican Presidential Nominee; former U.S. Representative Amory "Amo" Houghton, Jr.; Richard Lewis "Dick" Thornburgh, former Governor of Pennsylvania and U.S. Attorney General; and former Governor of Massachusetts, William F. Weld, by Campaign Legal Center)

Former AG Katzenbach and former Assistant AGs (Bagenstos)

More to come

Posted by Rick Hasen at 02:57 PM

March 12, 2009

President Obama States Support for Continued Use of Section 5

It is also interesting that he relies on racially polarized voting as a reason for the constitutionality of the renewed section 5. That point is not self-evident, though I think there are other good arguments for section 5's continued constitutionality.

Posted by Rick Hasen at 05:10 PM

February 27, 2009

More NAMUDNO Amicus Briefs

Gov. Riley of Alabama (in support of neither party)

The rest in support of appellant:

Mountain States Legal Foundation

Pacific Legal Foundation

Gov. Purdue of Georgia

Southeastern Legal Foundation

Abby Thernstrom and Former DOJ Officials (including Hans von Spakovsky, and written by Michael Carvin)

Posted by Rick Hasen at 07:02 PM

NAMUDNO Amicus Briefs

Goldwater Institute (in support of appellants)

I have also received the very important brief supporting no party of Persily, Stewart, and Ansolabehere. But it is too large to post. When it is posted elsewhere, I'll link.

Posted by Rick Hasen at 05:32 AM

February 19, 2009

Appellant's Brief in NAMUDNO Filed

You can read the brief here. If and when amicus briefs are filed supporting appellants, I'll try to post those too.

Posted by Rick Hasen at 04:26 PM

January 25, 2009

"Uphold the Voting Rights Act"

The New York Times offers this editorial on NAMUDNO.

Posted by Rick Hasen at 09:35 AM

January 18, 2009

"Voting Rights Anachronism"

George Will has written this WaPo column on NAMUDNO.

Posted by Rick Hasen at 08:36 AM

January 17, 2009

"A Texas challenge to the Voting Rights Act"

The LA Times offers this editorial on NAMUDNO.

Posted by Rick Hasen at 04:18 PM

January 12, 2009

Everything You Wanted to Know About MUD But Were Afraid to Ask

For a bit of background on the district at issue is NAMUDNO, check out Wrestling with Muds to Pin Down the Truth about Special Districts by Sara Bronin (Fordham Law Review). From the SSRN abstract:

    ederal, state, and local governments encourage and empower special districts - board-run, special purpose local government units that are administratively and fiscally independent from general purpose local governments. Special districts receive incentives, grants, and freedom from limitations (such as limitations on tax and debt) imposed on general purpose local governments. Special districts are treated favorably because they are small in size, which theoretically means they foster democratic participation; are limited in purpose, meaning that states can tailor the special districts' powers to serve specific problems; and are viewed as efficient solutions to specific problems. Though special districts have tripled in number over the last fifty years, the rationale justifying their favorable treatment has not been thoroughly scrutinized. One obstacle to such scrutiny is the difficulty in determining a metric of assessment: Too many different kinds of special districts exist, and the scope of districts changes constantly. An imperfect, but no less revealing method is a close investigation of one type of special district.

    This Article provides one of the few in-depth reviews of special districts in the academic literature, focusing on the Texas municipal utility district (MUD), originally designed to supply water to unincorporated areas. MUDs - the most common type of special district in the state with the third largest number of special districts - embody both the strengths and weaknesses of special districts. Texas's failure to address MUDs' negative effects reflects our nationwide failure to analyze and correct problematic special districts. This Article discusses MUDs' formation, powers, and scope, and analyzes how MUDs operate without real democratic checks, have too much power, and ineffectively work toward their goals. Throughout, it attempts to engage the central question in modern local government law: the optimality of certain units of government.


Posted by Rick Hasen at 09:12 PM

January 09, 2009

Important Voting Rights Case, NAMUDNO, Before the Supreme Court Today

We could know as early as this afternoon whether the Supreme Court will note probable jurisdiction and vote to hear the appeal in Northwest Austin Municipal Utility District Number One v. Mukasey, considering the question whether the renewed section 5 of the Voting Rights Act, requiring "covered jurisdictions" to get permission before making changes in their voting laws, is constitutiional.

Previewing the decision, USA Today offers Supreme Court Considers Challenge to Voting Rights Act. Former NY Times Supreme Court reporter Linda Greenhouse has written an oped for today's Times, The Chief Justice on the Spot. Bob Bauer comments on Linda's article.

This is an issue I've been following for a long time, beginning with this 2005 law review article raising the constitutional question, and my testimony before the Senate Judiciary Committee in 2006. I invited leading election law scholars to comment on this blog about the constitutionality of the renewal process, and all of those posts are available at this link. The Future of the Voting Rights Act also contains many important contributions on this question. See also Sam Issacharoff's Is Section 5 a Victim of Its Own Success? and Mike Pitts' response.

Among the most important pieces of scholarship on this topic since Congress renewed section 5 are Nate Persily's Yale Law Journal piece, with must-read responses by Rick Pildes and Ellen Katz, Morgan Kousser's Texas Law Review piece, and Kristen Clarke's piece for the Harvard Civil Rights-Civil Liberties Law Review.

It is hard to handicap what the Court is going to do. (And one possibility is that they do nothing today---recall that the recent Capterton v. Massey was relisted multiple times and then ultimately set for argument.) It actually may come down to where Justice Scalia is on this case. As I note in my piece in the Future of the Voting Rights Act book, he has expressed some reservations about the Court's "congruence and proportionality" test, and seemed to indicate that when it comes to race, he views Congress's power to regulate more broadly than otherwise. It is also such a politically sensitive case that I am not sure that the Court would want to wade into these waters. On the other hand, Chief Justice Roberts has a keen interest and less than sympathetic view of the Act, and a decision to summarily affirm the appeal in NAMUDNO would be a decision on the merits (not just like a denial of cert.), declaring that the lower court got it right in upholding section 5's constitutionality, even if for the wrong reasons. I have a hard time believing he'd sign off on that.

Posted by Rick Hasen at 08:26 AM

December 29, 2008

HLR Student Note on NAMUDNO

See here.

Posted by Rick Hasen at 10:53 AM

November 26, 2008

Government's Motion to Affirm in NAMUDNO Now Available

You can read it here. The government wants a summary affirmance. More at SCOTUSblog.

Posted by Rick Hasen at 02:09 PM

NAMUDNO Motion to Dismiss or Affirm Due Today

The docket says.

Posted by Rick Hasen at 12:39 PM

December 13, 2007

Persily Article on Renewed VRA Now Available; Ellen Katz and Rick Pildes Comment

Nate's Yale Law Journal article on the renewed VRA is now available. Ellen Katz has written this commentary and Rick Pildes has written this commentary. These are all absolute must-reads. Rick P.'s piece really captures the exasperation I felt at the time of VRA renewal. (For a trip down memory lane, here is a link all the posts in the VRA renewal guest blogging series I had on this blog a few years back.)

Posted by Rick Hasen at 03:55 PM

October 05, 2007

"It's Name Is MUD"

Texas Weekly has this article ($) on the NAMDUNO VRA case currently being considered by a three-judge panel, and eventually headed to the Supreme Court. In the article, Edward Blum, the main force behind the suit, says: "'We're not looking to strike down Section 5,' he says. 'We're trying to get the right of sub-jurisdictions to bail out.'"

Another snippet: "Blum points out that states under Section 5 have cleaner election records than states not under the restraints. Hasen, though, sees the fairly good recent track record as possible evidence that current statute is working -- not that Texas can be trusted if freed from Section 5 and left to its own recognizance. 'Part of the reason why Texas may not have had any denials, they've learned what they need to do to get DOJ clearance,' he says. 'If you don't need DOJ clearance anymore, plans might change.'"

Posted by Rick Hasen at 09:34 AM

October 02, 2007

"Voting Rights Act provision could face U.S. Supreme Court scrutiny"

The Hill offers this report on the NAMUDNO oral argument. A snippet: "A GOP source close to the reauthorization contended that some Section 5 opponents chose to vote in favor of the bill with the belief that it would be struck down in federal court."

Posted by Rick Hasen at 08:10 AM

September 20, 2007

Video and Audio Now Available of AEI Forum on NAMUDNO

See here.

Posted by Rick Hasen at 08:43 AM

September 17, 2007

"Officials Challenge Voting Rights Law"

AP offers this report on today's argument in the NAMUDNO case. The lower court panel sounds very likely to reject plaintiff's constitutional attack on the renewed section 5 of the VRA.

For what it is worth, here is what I wrote on Sept. 12, 2006 (almost exactly a year ago), when this three-judge panel was named: 'A three judge court has been named: district judge Paul Friedman, district judge Emmet Sullivan, and DC Circuit judge David Tatel. [note: an earlier version of this post incorrectly referred to Judge Sullivan as being on the DC Circuit] This is likely a good draw for defenders of the constitutionality of section 5. But I don't think the lower court opinion is going to matter very much, however it comes out. This issue---either in this case or one of the others being filed---will be resolved when the Supreme Court resolves it."

Posted by Rick Hasen at 11:39 AM

June 18, 2007

NAMUDNO Reply Brief Filed by Plaintiffs

You can find it here. If I get links to the other briefs, I'll update this post with those links. UPDATE Defendant-Intervenors' Opposition to Plaintiffs' Summary Judgment motion is here.

Posted by Rick Hasen at 08:40 AM

June 06, 2007

Tucker on VRA Renewal

James Thomas Tucker has written The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization of 2006. This article was originally printed in the Notre Dame Journal of Legislation, 33 N.D. J.Legis. 205 (2007), and is reposted here with the permission of the author and the journal.

Posted by Rick Hasen at 02:49 PM

May 31, 2007

Persily on "The Promises and Pitfalls of the New Voting Rights Act"

Nate Persily's must-read article on VRA renewal (forthcoming Yale L.J. October 2007) is now posted here on SSRN. Here is the abstract:

    This article, forthcoming in the Yale Law Journal, describes the legislative history surrounding the 2006 reauthorization of the Voting Rights Act and provides an interpretation of its key provision. The legislative process was unprecedented in many respects. Despite unanimous support for the law in the Senate Judiciary Committee and on the Senate floor, the Committee Report was submitted after passage of the legislation with only Republican signatures and with all Committee Democrats dissenting. The legislative history suggests the political parties' differing interpretations of the Act that only came to light once the President had signed the bill into law. This article concludes with an evaluation of potential interpretations of the new retrogression standard: that covered jurisdictions may not diminish the ability of minorities to elect their preferred candidates of choice.

Posted by Rick Hasen at 09:08 AM

May 21, 2007

Edward Blum on the Renewed Section 5 and the Aschoft "Fix"

See here at AEI. A snippet: "So, armed with the Ashcroft fix, how much damage could a Democratic controlled Justice Department do to Republican hopes after the next census? Quite a bit it turns out. Today there are 102 congressional districts in the states wholly covered by Section 5: Republicans hold 61 of these seats, while Democrats hold 41. After the 2010 Census, those same states may be apportioned another seven or eight districts because of population growth. If applied by an aggressively partisan attorney general, the Ashcroft fix could shift nearly 10 of these seats to the Democrats. Since the country is so evenly split between the two parties, that may be enough to keep the GOP out of the majority for a decade (especially since it is losing support in the Mid-Atlantic, Midwestern, and Western states)." Nate Persily, what do you think?

Posted by Rick Hasen at 09:12 PM

May 17, 2007

More Summary Judgment Motions in NAMUDNO

Following up on this post, here are more pleadings in NAMUDNO, the case raising the question of the constitutionality of the renewed section 5 of the VRA.

DOJ

Travis County

I received a copy of the MALDEF brief, but it is too large for me to post. If I can find it posted elsewhere, I'll link.

Posted by Rick Hasen at 02:25 PM

May 16, 2007

Pleadings Begin to Get Filed in NAMUDNO Case, Challenging Constitutionality of Section 5 of the Voting Rights Act

You can find the brief of Public Citizen, Texas RioGrande Legal Aid, NAACP's Austin and Texas branches, NAACP-Legal Defense Fund, Lawyers' Committee for Civil Rights Under Law, American Civil Liberties Union, and
People for the American Way here.

You can find the Brennan Center's amicus brief here.

MALDEF filed a brief as well that I have not seen. Trvais County also filed a brief.

If anyone has links to the government's brief or to any other briefs, please send them along. You can find extensive coverage and analysis of the constitutional issues from a number of election law scholats at this link.

UPDATE: The plaintiffs' motion for summary judgment is here.

Posted by Rick Hasen at 11:22 AM

February 05, 2007

Oral Argument in Federal District Court in NAMUDNO Case Set for September 17

According to PACER: "Oral argument on dispositive motions is set for September 17, 2007 at 10:00 a.m. in the Ceremonial Courtroom, Courtroom #20. Signed by Three Judge Panel (Judge David S. Tatel, Judge Paul L. Friedman, and Judge Emmet G. Sullivan) on February 5, 2007."

Posted by Rick Hasen at 01:31 PM

In Section 2 Vote Dilution Case in Indian Country, Fremont County, Wy. Lawyer Argues Section 2 is Unconstitutional

This is very interesting and the kind of thing I feared when Congress renewed section 5 without making changes to the preclearance formula or bailout. An adverse opinion in NAMUDNO could open the door to new constitutional attacks on other civil rights statutes, including section 2 of the VRA.

Posted by Rick Hasen at 09:05 AM

January 15, 2007

Legal Times on NAMUDNO Litigation Challenging the Constitutionality of Section 5 of the Voting Rights Act

The must read article is available here without a subscription.

Posted by Rick Hasen at 01:33 PM

November 16, 2006

Hasen: On VRA Renewal, what if the Civil Rights Community Knew Democrats Would Take Back Congress?

As I noted back in June, those in the civil rights community pushed for a certain package of Voting Rights Act renewal amendments quickly because they feared that whichever Republican Member of Congress would take over for the current House Judiciary Committee chair, Rep. James Sensenbrenner, might be less willing to push for a strong VRA renewal. I don't think it appeared likely to anyone at the time that the Democrats would soon control both branches of Congress and that John Conyers would chair the House Judiciary Committee (with Patrick Leahy, another strong supporter of the VRA, chairing the Senate Judiciary Committee).

How might that have changed what appeared in the renewed VRA? We'll never know. Of course, to the extent that the civil rights community got a more moderate bill than they would have with Democrats in charge, it might be that the moderation is what saves the amendments from being struck down as unconstitutional. We'll know the answer to this latter question as NAMUDNO works its way to the Supreme Court.

Posted by Rick Hasen at 08:08 AM

October 19, 2006

NAACP LDF Seeks to Intervene in NAMUDNO to Defend Constitutionality of VRA

See this press release.

Posted by Rick Hasen at 08:03 AM

October 17, 2006

Government Files Answer in NAMUDNO Case Defending Constitutionality of the Renewed Section 5 of the Voting Rights Act

I have posted the answer here.

Posted by Rick Hasen at 09:16 AM

July 20, 2006

Overton (VRA Renewal): The Conflict Between Scholars and Policymakers

Now that U.S. House and Senate have both voted to renew provisions of the Voting Rights Act, I would like to comment on the nature of our debate.

On one hand, I've read thoughtful writing about the coverage formula, bailout, and federalism generally from people like Rick Hasen, Pam Karlan, Nate Persily, and Rick Pildes. While I may not agree with them on everything, I've learned a lot from these and other scholars.

On the other hand, the discussion on the election law listserve has sometimes been condescending of members and staffers on the Hill. As academics we sometimes make judgments without having reviewed the complete legislative record ourselves. Not only do we make substantive claims, but we sometimes criticize activists on the style of the debate--as though politics on the Hill should conform to the standard of fairness, decorum, and civility that we expect from our students in the classroom.

My point is not that academics should avoid meaningful conversation about the Voting Rights Act. Instead, I think we should recognize our own limitations as academics and appreciate that there are political elements to both congressional passage and judicial review, and that others may have more expertise in these areas than we do (actually, more of a "different" type of expertise that may be relevant to these contexts). When I sat on the Carter-Baker Commission on Federal Election Reform, for example, I started with an open mind expecting a fair process based on expert testimony and facts--but a political undercurrent existed that I did not appreciate until the end of the process (most of the other commissioners were politicians and "got" the political element all along).

Previous blog entries have acknowledged that some members of Congress critical of the Voting Rights Act may not be acting in "good faith," but I think the challenge for the academic is to take the next step and figure out how to engage in a fair and honest way without becoming a tool for those who are not acting in good faith. I don't have any simple answers or guidelines, but I think that humility, appreciation of other perspectives, and awareness of both what we add to the debate and the limitations of our talents are important.

I don't mean to dodge the substantive questions. I explain my own take in my chapter "The Coverage Curve: Identifying States at the Bottom of the Class" in the forthcoming book "The Future of the Voting Rights Act" (Epstein, Pildes, de la Garza and O'Halloran, eds., Russell Sage Foundation, forthcoming 2006). A shorter 8-page version is in my new book Stealing Democracy: The New Politics of Voter Suppression, pp. 112-120.

To me, many criticisms of the Section 5 preclearance process--such as the assertion that it is too "intrusive," "excessive," or "extraordinary"--seem overstated. Preclearance is much less burdensome than litigation, as it enjoys the advantages of ex ante over ex post decisionmaking. Employing a few paralegals at the federal and state levels to identify and prevent problems over a 60-day period is more efficient and inexpensive than the teams of lawyers, years of interrogatories and depositions, legions of experts, and judicial resources that accompany litigation. Similar preventative procedures deter misconduct and reduce litigation costs in other areas of the law, like the Hart-Scott-Rodino antitrust review process and environmental impact statements. While litigation remains essential to resolve some voting rights matters, there is no reason that voting rights law must be relegated to litigation as its sole enforcement tool.

Further, technology has made the preclearance process even less intrusive than it was in 1982 when Congress last renewed the relevant portions of the Voting Rights Act. Modern software that can be used on a desktop personal computer makes compliance with Section 5 easier than ever. Most jurisdictions already own such software--they buy it to comply with one person/one vote requirements. Compliance with Section 5 that 25 years ago demanded weeks of tedious trial and error now requires a few hours.

Some have claimed that the record of discrimination is not sufficiently weighty. But what is the baseline that justifies immunity from preclearance coverage? Is it refraining from spraying voters of color with hoses and tear gas? Certainly, today's South is more "attuned to black political claims" than it was in the 1960s, but problems still exist in Arizona, Virginia, Mississippi, Louisiana and other parts of the nation that might go unresolved for years absent voting rights protections. Using a 1960s standard of race relations as a baseline for coverage could also encourage some to hype stories about racist conspiracies. As the U.S. Senate Report on the Voting Rights Act Amendments in 1982 explained, requiring that we label "individual officials or entire communities" as racist is "divisive, threatening to destroy any existing racial progress in a community."

There is no uncontested baseline that clearly separates intolerable racial dysfunction that warrants federal preclearance procedures from improper but tolerable dysfunction that does not justify congressional intervention. Any judicial proclamation that purports to draw such a line is based on nothing other than value judgments that creep dangerously into the political thicket. Does Congress need testimony on 2 or 200 instances of "discrimination" to warrant preclearance coverage in a particular jurisdiction? Must such instances involve intentional discrimination, or will discriminatory impact do? If intent is a requirement, must the evidence establish "Bull Connor" racial animus, or can it simply show that a political operative intentionally excluded voters of colors because he believed those voters were prone to cast ballots against the political operative's favored candidate?

Despite the fact that no objective baseline exists, I do agree that the question of which jurisdictions must comply with the process merits serious consideration. In light of this, in my "Future of the Voting Rights" chapter I attempt to identify symptoms of racial dysfunction in a political process and measure which jurisdictions present such symptoms to a greater extent than others. I use factors like the number of Section 5 objections, Section 2 claims, deployment of federal observers, racial disparities in voter turnout, amount of political party competition for voters of color, racial disparities between voters and elected officials, and size of minority group and low-English proficiency populations.

The data show that several fully or partially covered states remain at the "bottom of the curve," including states with House members who voted against renewal like Alabama, Arizona, California, Georgia, Louisiana, South Carolina, and Texas.

--Spencer Overton

Posted by Rick Hasen at 04:41 PM

July 18, 2006

VRA to Senate Floor with No Amendments?

As I've noted, tomorrow is the day the Senate Judiciary Committee was supposed to markup the VRA renewal provision. It was unclear, as of this morning, whether or not some members of the committee (especially Sens. Cornyn, Coburn, and Sessions) might offer some amendments or otherwise slow down the bill. Yet according to today's CQ Mid-day report, thing have changed dramatically. "... Specter, who was already planning to begin a committee markup of the bill tomorrow, now plans to complete work then so the full Senate can take up the bill Thursday with the goal of passing it this week." If it is going to get done tomorrow, it sounds like there won't be any serious amending of the bill.

What has happened? Has the Republican leadership convinced those Senators who had raised concerns about aspects of the bill that it is politically expedient to pass the bill now and get the issue behind them? (Perhaps there has been some negative fallout from last week's house debate). Perhaps not coincidentally, this story appeared in today's NY Times on GOP-African American relations faltering, and the possibility that President Bush will speak, for the first time as President, before the NAACP convention. He certainly will get a warmer welcome if he can do that with VRA renewal passed or assured.

UPDATE: President Bush has agreed to speak to the NAACP on Thursday, which could explain the timing.

Posted by Rick Hasen at 02:43 PM

July 12, 2006

Witnesses Announced for Tomorrow's Senate Judiciary Committee Hearing on VRA Renewal and LULAC Case

Expect fireworks.

Posted by Rick Hasen at 03:29 PM

Breaking News: House Rules Committee Issues Rule on VRA Debate in House

You can find it here. There will be four amendments offered:

    1. Norwood (GA) #8:
    Updates the formula in section 4 of the Voting Rights Act (VRA) that determines which states and jurisdictions will be covered under Section 5 of the VRA. This updated formula would be a rolling test based off of the last three presidential elections. Any state would be subject to Section 5 if it currently has a discriminatory test in place or voter turnout of less than 50% in any of the three most recent presidential elections. (40 minutes)

    2. Gohmert (TX) #14
    Makes the reauthorization period 10 years, rather than the 25 years proposed in H.R. 9. (40 minutes)

    3. King, Steve (IA)/Istook (OK)/Miller, Candice (MI)/Brown-Waite (FL)/Bachus (AL) #7:
    Strikes sections 7 and 8 of the bill. These sections relate to multilingual ballots and use of American Community Survey census data, and they would automatically expire in 2007. (40 minutes)

    4. Westmoreland (GA) #4:
    Provides for an expedited, proactive procedure to bail out from coverage under the preclearance portions of the Voting Rights Act, by requiring the Department of Justice to assemble a list of all jurisdictions eligible for bailout and to notify the jurisdictions. The Department of Justice is then required to consent to the entry of a declaratory judgment allowing bailout if a jurisdiction appears on the list. Adds a three-year initial time period (and annually thereafter) for assembly of the bailout list by the Department of Justice. (40 minutes)

It should be an interesting debate.

Posted by Rick Hasen at 01:18 PM

July 11, 2006

More on VRA Renewal in the House

This morning, a group of Republican election lawyers met with the Republican conference in the House, apparently to get everyone's ducks in a row before the scheduled vote on the VRA on Thursday. But it appears things did not go as planned, and the vote may be postponed yet again (alternatively, I hear rumors of allowing more amendments than the two amendments which would have been allowed under the old rule).

According to the CQ Midday Update:

    House action on a bill to renew expiring portions of the Voting Rights Act is scheduled for Thursday, but the bill may yet be pulled because disagreements persist about some of its language.

    House Majority Leader John A. Boehner, R-Ohio, said, "I want this bill finished this week. But to tell you everything is settled and everyone is happy would not be the truth."

    Boehner appeared discouraged after a two-hour meeting where, he said, there was "complete disagreement" among lawyers brought in to explain the effect of a provision in the bill that addresses a 2003 Supreme Court decision in Georgia v. Ashcroft that involved districts drawn to increase minority representation in so-called minority-majority districts.

    "Members know there is very big disagreement among the lawyers over the language," Boehner said. "How much progress have we made? Some."

    The bill was originally expected on the floor prior to the July Fourth recess but ran into trouble among Republican conservatives.

In the meantime, Bob Bauer has written against the bailout amendment that I support. I don't find Bob's arguments persuasive, in large part because he does not address the substantive merits of the proposal. (He is more concerned about the politics of it all: "The time to vote, however, has come, and what is before the Congress is superior to a last-minute, highly politicized and scattershot amendment process justified by the Congressional sponsors as an answer to constitutional concerns of entirely speculative character.")

Posted by Rick Hasen at 12:59 PM

Hasen: "Pass the VRA Bailout Amendment"

Roll Call has published my guest commentary (FREE access, reprinted with permission), which begins:

    This week the House considers H.R. 9, a bill that renews expiring provisions of the Voting Rights Act. The Senate is expected to take up parallel legislation later this summer, after it emerges from the Senate Judiciary Committee. Members of the House should vote to renew the act, but they also should vote for an amendment to be offered by Rep. Lynn Westmoreland (R-Ga.) to create what I have termed "proactive bailout." The amendment strengthens the act by helping to insulate the renewed VRA against inevitable constitutional challenge.

It concludes:
    This proposal does not gut the VRA, as some have suggested. It simply provides a way of ensuring that those jurisdictions that remain covered by Section 5 are the ones where there is still a danger of racial discrimination by the government in voting. That assurance could convince more conservative justices, particularly Kennedy, who could well be the swing vote on the constitutionality of VRA renewal, that Congress has made efforts to make sure that the law does not exceed Congressional power.

    I know some Members of Congress, particularly Democrats, might be suspicious of an amendment offered by a conservative Southern Republican such as Westmoreland. I understand the concern. But Members of Congress should look past this concern. Passing H.R. 9 as is, without any attempt by Congress to recognize that 2006 is not 1965, could doom the provisions before the Supreme Court. And if the court strikes down a renewed VRA, other important civil rights laws could follow as well.


Meanwhile, the newspaper reports (paid subscription required): "Leadership sources said they expect those two amendments [Norwood and Westmoreland] again will be made in order when the Rules Committee meets this week to reconsider the VRA. Those sources also predicted both amendments would fail -- a development that should ensure that the VRA retains the support of Democrats, including members of the Congressional Black Caucus."

Posted by Rick Hasen at 07:27 AM

June 29, 2006

What I Hear About VRA Renewal

I have heard (unconfirmed) that the Senate markup of the VRA bill is coming in mid-July. Sen. Specter is hoping to have the bill on the floor in the second half of July. The House timing remains a question.

Posted by Rick Hasen at 09:21 AM

June 27, 2006

House Rules Committee Tables Rule on VRA Renewal, Meaning the Rule for Debating (and Possibly Amending) H.R. 9 Will Have to Be Renegotiated

Last night the Rules Committee voted to table H. Res. 878, which had provided for the rule on debate of VRA renewal (that's the deal that allowed two proposed amendments, the Norwood amendment and the Westmoreland amendment). It appears then that the details of the VRA renewal debate will have to be renegotiated, and that's likely not to happen until after the July 4 recess.

Posted by Rick Hasen at 08:15 AM

June 26, 2006

"GOP splits but Dem deal on VRA holds"

The Hill offers this must-read report on VRA renewal, which states that "Democrats and civil-rights leaders compromised on measures regarding voter protection, including those to curb the use of photo-ID laws, to ensure that a bill would be passed before the bill sponsor, committee Chairman James Sensenbrenner (R-Wis.), gives up his gavel at the end of the legislative session, according to several Democratic sources in the House, including multiple committee staffers. Democrats are concerned about the possibility of Rep. Lamar Smith (R-Texas) as the next committee chairman and the prospect of a significantly weakened Voting Rights Act under his chairmanship."

Another snippet:

    In an e-mailed response to The Hill yesterday, Smith said that he would support two amendments offered by Reps. Lynn Westmoreland (R-Ga.) and Charlie Norwood (R-Ga.) that would significantly modify Section 5. The Norwood amendment would modify the formula for pre-clearance scrutiny, opening up Justice Department oversight to all 50 states. Democrats and civil-rights groups have said such a proposal could only be intended to kill the Voting Rights Act. The House Rules Committee last week cleared both amendments for floor votes.

I don't think the article accurately summarized what the Norwood amendment would do, but it is quite significant that Rep. Smith says he supports it. As I've said, the Norwood amendment is not a serious measure, but one designed to scuttle the entire section 5 apparatus. The Westmoreland amendment, on the other hand, is (at least in theory, if not in how it is actually drafted) a proposal that could help insure the constitutionality of a renewed section 5 without unduly weakening it.

Posted by Rick Hasen at 10:06 PM

Pitts: Vermont Is Not A Covered Jurisdiction, But...

Obviously, there is no explicit connection between today's Supreme Court decision involving Vermont's campaign finance laws and the extension of the special provisions of the Voting Rights Act. But there might be a subtle connection if you read between the lines, for the Vermont decision might provide a helpful clue about the views regarding the constitutionality of Section 5 of a Justice who did not actually pen one of the six separate opinions in today's case--Chief Justice Roberts.

Today's decision in Vermont provides evidence that the Chief meant what he said when he indicated during his confirmation hearings that he would have great respect for the Court's well-established precedents. Notice that the Chief joined Justice Breyer's discussion of stare decisis, whereas the other recent addition to the Court, Justice Alito, used a concurrence to specifically divorce himself from that portion of Breyer's opinion. Of course, one should be careful not to read too much into this, but what it could portend for Section 5 is that arguments from precedent using South Carolina v. Katzenbach and City of Rome will generate traction with the Chief.

I think this is important because (assuming no changes in the composition of the Court) the fifth vote for the constitutionality of Section 5 will likely have to come from Chief Justice Roberts. Although Justice Kennedy has now seemingly replaced Justice O'Connor as the new swing vote on the Court, I don't think Justice Kennedy will be the swing vote on the constitutionality of Section 5. Justice Kennedy's previous decisions place him fairly solidly against race-based remedies and fairly solidly against giving broad authority to Congress in the use of its enforcement power. True, he could moderate his views on these subjects and he may yet find a race-based remedy and use of the congressional enforcement power (outside of the Goodman context) that he does not oppose. It's just to say I think it is unlikely Justice Kennedy will change his tune. That means those who wish to uphold the constitutionality of Section 5 will have to sing "Hail to the Chief."

--Mike Pitts

Posted by Rick Hasen at 09:26 PM

June 24, 2006

Issacharoff: On the Constitutionality of VRA Renewal

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

Posted by Rick Hasen at 05:02 PM

June 23, 2006

"ACLU Challenges Lawmakers Who Aim to Gut Voting Rights Act, Says Proposals Would Eliminate Historic Federal Protection"

The ACLU has issued this press release, which links to this letter. I completely agree with the letter's opposition to the ridiculous proposal offered by Rep. Norwood to change the section 5 trigger to a formula that would include only Hawaii. But I don't agree with that the letter says about the proposed bailout amendment:

    Furthermore, the bailout provision of the VRA works to ensure that the scope of Section 5 is not overbroad or otherwise constitutionally flawed. Congress designed the bailout formula to allow a jurisdiction that could demonstrate it had taken sufficient steps to remove bars to minority enfranchisement to be released from preclearance. All jurisdictions that have attempted to bail-out from coverage have been able to do so successfully. If, however, Section 5 or the bailout provision were to be weakened, then formerly covered jurisdictions will have escaped the need to make a showing of real progress in enfranchising their minority voters.

First, the fact is that very few jurisdictions have attempted to bail out (and those that have done so have small minority populations), and many apparently have been deterred for reasons Rick Pildes recently noted. Second, I don't see how "proactive bailout" would allow former covered jurisdictions to "escape[] the need to make a showing of real progress in enfranchising their minority voters." The DOJ would have to be satisfied that the jurisdiction has done so, and for practical purposes it won't be able to bail out without providing DOJ with information showing such progress. Moreover, if DOJ colluded and consented to bailout, the law would still allow intervenors to object to show that not enough progress has been made.

Posted by Rick Hasen at 02:47 PM

Hasen: More On VRA Compromise

I have received some private reactions to my call for compromise, some of it positive, some of it suggesting that I am emboldening opponents of the Act to stall further. Bob Bauer has posted these comments challenging the sincerity of Republican House members who have stalled VRA renewal, pointing to their support for discriminatory voter i.d. laws in Georgia.

I am certainly not intending to embolden opponents of the Act to stall the Act's passage. I would prefer by many magnitudes that H.R. 9 be adopted in its current form rather than have no adoption at all. But, as I've said before, I view the legislation as in serious danger of constitutional invalidation by the Supreme Court. Adopting proactive bailout could go a long way toward satisfying those concerns. While some have said I'm being "used" by opponents of the act to help them ultimately scuttle the Act, my calculation is different. It would be very hard for the Republican leadership not to renew the Act this term, leaving it as a campaign issue in the fall. But these opponents provide the opening for a compromise that can improve the act.

Expiring provisions of the VRA should be renewed, and renewed this session of Congress. But they should be improved before they are renewed. We'll see if the opponents are sincere in their hopes for compromise if they drop their proposal to change the trigger to 2004 and start suggesting more realistic and useful alternatives.

(By the way, though I support voter i.d. laws as part of a package of universal voter registration conducted by the government, I view both the earlier and current Georgia voter id laws as unconstitutional, a violation of section 2 of the voting rights act and a change that should not have been precleared under section 5 of the Act.)

UPDATE: Mark Posner writes:

    The following is my three-step prescription for Section 5 sanity and survival:

    First, I agree that there are good reasons for ramping down the current reauthorization proposal. Doing so will strengthen the case for its constitutionality, is responsive as a matter of policy to the fact that minority voters in the covered areas are in a much stronger position today than in 1982, and might peel off some of the current Republican naysayers (because they will view the legislation differently on substantive grounds and/or because the ramp-down will give them cover for changing their minds in response to political pressure).

    Second, I don't agree that the ramp-down should include any proactive bailout provision. I think that any proposal to have DOJ compile a list of jurisdictions eligible to bail out is impractical and also is not justified as a matter of policy. My practicality concern is based on the large number of "political subdivisions" that DOJ would need to survey (over 900) and the nature of the information that it would need to obtain (in particular, the Section 4(a)(1)(F) information). While having the 900 plus jurisdictions write in to DOJ with bail-out information would help, DOJ still would need to conduct 900 plus investigations to verify the letter claims. With regard to policy, I don't think that the case has been made that these jurisdictions should have DOJ carry them through the bail-out door. That door is open, and though we all have thought of many reasons why more jurisdictions have not sought to pass through it, the bottom line is they have sat on their collective hands. With some effort and some payment of attorneys fees, I think that many, many jurisdictions could bail out under the current system.

    Third, I agree that the most direct and simplest way to ramp down the reauthorization is to reduce the renewal period. As Rick suggested, a period of ten to fifteen years sounds good. Another thing that could be done (which seems to have my vote but no one else's) would be to cut out from coverage some of the types of voting changes that now produce big submission numbers but very, very few objections (e.g., polling place and precinct changes, and special elections). But perhaps this is not politically doable because of a slippery slope concern.

Posted by Rick Hasen at 09:52 AM

June 22, 2006

Hasen: VRA Renewal: The Spirit of Compromise?

Yesterday I suggested that the civil rights community should be ready to compromise on some aspects of VRA renewal in order to get a bill passed this session. In this post, I want to suggest that if those members in the House who are holding up renewal are doing so because they really want a "modernized" bill that can pass constitutional muster (as opposed to simply trying to stall the bill in the hopes that section 5 won't get renewed), they should be willing to compromise too.

What might the form of compromise look like? Recall there were two amendments being allowed by the Rules Committee. One would change the trigger and the other would enact the proactive bailout proposal similar to the one I've been advocating.

The trigger formula is not a serious proposal. It would apparently end preclearance for every state, except Hawaii, which would be the sole covered jurisdiction. In the spirit of compromise, members should drop this amendment. A serious compromise could begin with H.R. 9 and make the following changes:

1. proactive bailout (with the modifications I discussed this morning)
2. a shorter time period (say 10 to 15 years)
3. raising the population threshold for section 203 by 5%

There are other ways to compromise. But something on the table like this would be a good deal for both sides, assuming the sincerity of all parties involved.

Posted by Rick Hasen at 04:32 PM

Hasen: Two Ways to Improve Proactive Bailout

From discussions with a number of people, both on and off the election law listserv (see especially here), I would now suggest amending my earlier proactive bailout proposal in two ways:

1. The DOJ should be able to request that covered jurisdictions compile information and submit the information to assist with the task of figuring out which jurisdictions should be entitled to bailout.

2. Given the large number of jurisdictions, DOJ should have three years to prepare its initial list of jurisdictions entitled to bail out, prioritizing by beginning with those jurisdictions most likely to bail out (and producing an interim list at the end of each of the three years). After the three year period, DOJ would produce an annual updated list.

Posted by Rick Hasen at 07:25 AM

June 21, 2006

Hasen: The Civil Rights Community's Double Gamble on VRA Renewal

Those members of the civil rights community who have been leading the push for VRA renewal made a decision some time ago (or at least it appears to an outside observer) to push for VRA renewal (1) as quickly as possible and (2) in substantially the same form as the current Act or, if anything, to roll back some Supreme Court precedents seen as limiting the power of the VRA to help minority voters.

The first calculation seemed geared in great part to the fact that the current chair of the House Judiciary Committee, Rep. James Sensenbrenner, agreed to fully support the bill drafted by the civil rights community. It also appeared that the House Republican leadership was also willing to push the measure through quickly this year. (We can debate why the House Republicans wanted to do this: maybe out of principle; maybe out of political expediency (it would not look good to be opposing landmark civil rights legislation), maybe for political gain (some believe that section 5, and perhaps also the Georgia v. Aschroft fix, would help Republicans create packed majority-minority districts which can maximize the number of white Republican districts overall).) Next year, Sensenbrenner will be out as chair, and what happens after the midterm elections is anyone's guess. For this reason, it probably made sense for the push to have renewal done now, which is why some in the civil rights community were very upset when the Senate Judiciary Committee seemed intent on moving more slowly on renewal.

It is the second calculation that may turn out to have been an error. As I noted earlier today (see also this NY Times report, this Washington Post report, this report in The Hill, this Roll Call report and this Wall Street Journal editorial), the bill is now on hold for the indefinite future, prompted by a rebellion among some House Republicans (especially from covered jurisdictions) who believe the bill is unfair. The reaction of these House members should not have been that much of a surprise. The bill would impose preclearance for another 25 years. It did not acknowledge that the state of minority voting rights in 2006 is not the same as the state of such rights in 1982 or in 1965. (That's not to say that VRA renewal is not necessary. I believe it is very necessary, and I support a renewed section 5.) But the attitude of those pushing the bill has been to try to avoid presenting dissenting views and to act as though 2007 and 1982 are the same.

Of course, the attempt to move the trigger for preclearance to the 2004 elections (as has been proposed by some House Republicans) is an awful proposal. It is one that would doom the measure's constitutionality, absent any evidence that these turnout figures today would do a good job capturing states with a real potential for racial discrimination in voting. That amendment was offered to make a political point. But other amendments, such as the proactive bailout proposal, should be debated seriously. There should also be room for compromises on issues such as the number of years of renewal.

Rather than presenting a bill that was sure to cause the anger of Southern Republicans, a smarter strategy might have been to offer some compromises. This was the gamble that may have been in error.

On the other hand, this delay could have some short term benefit for Democrats. Headlines such as Republicans cancel renewal of Voting Rights Act, for now can help Democrats win votes in November. Maybe the delay will hurt the Republicans after all.

But the wise move now for VRA renewal supporters would be to look for common ground and places for compromise, to avoid the possibility of the issue being put over post-midterm elections, and after Rep. Sensenbrenner has left his important committee role.

Posted by Rick Hasen at 09:56 PM

June 20, 2006

"Bailouts and the Voting Rights Act: Observations About Rick Hasen's Proposals"

Gerry Hebert offers these interesting observations on the proactive bailout proposal.
UPDATE: Luke Peterson emails:

    When it comes to the bailout provision of the VRA, it is hard to argue with Gerry Hebert. I would like to add one point to Hebert's counter-arguments to Hasen's proactive bailout proposal, and then add a significant addition to Hebert's proposal.

    First, it should be remembered that prior to the 1965 VRA, the DOJ faced the impossible burden of investigating and litigating for injunctive action against discriminatory devices, policies, and practices. The task proved too great a burden for the DOJ's limited resources. Precisely for this reason was Section 4 included in the Voting Rights Act. In 1982, Rep. Hyde's H.R. 3198 & 3473 introduced the notion of a bailout with set criteria that would allow a covered jurisdiction to bailout at any time if it met the criteria; thus providing an incentive to jurisdictions to seek full compliance with the VRA. Hyde's proposal would also have eliminated the coverage mechanism and preclearance requirements for all jurisdictions except those that would be covered by the language minority provision. The House Judiciary committee accepted (though in a dramatically altered form) Hyde's argument that an attainable bailout should be provided in the Act. They roundly rejected, however, the notion that the coverage formula be virtually eliminated because it would be a return to the "pre-1965 litigative approach" that proved impossible for the DOJ.

    I believe that the proactive bailout would place a similar burden on the DOJ as was felt under the "pre-1965 litigative approach." I believe the task of determining who may qualify for a bailout may prove as onerous as the pre-1965 task of determining who was violating the previous voting rights acts.

    What is needed then is a proposal that provides better incentive to jurisdictions to seek bailout, while not placing an excessive burden on the DOJ.

    I agree with Hebert's proposal, but would risk going one step further. I propose that the preclearance provision be eliminated and replaced with a quarterly report to the DOJ. Jurisdictions would not be required to preclear changes, only to report them, while the DOJ would retain the right to investigate and overturn voting changes which it determines to be discriminatory. In this report covered jurisdictions would be required detail all voting changes, the rationale behind them, and a detailed report on the jurisdiction's progress toward the bailout criteria as currently constituted.

    There would be a number of advantages to such a system. First, while a quarterly report on all voting changes would be at least as burdensome as preclearance of all changes, because none of the changes must be precleared before they can go into effect, this would spell a significant reduction in the extent of federal intrusion into state autonomy, thus strengthening the renewed sections' chances of surviving judicial scrutiny.

    Secondly, because the quarterly reports will be nearly identical to the fact finding report that jurisdictions seeking bailout must produce, there would be a significant incentive to meet the bailout criteria so that they can file a single bailout request rather than quarterly reports on an indefinite basis.

    Finally, as recent controversies have demonstrated, there is significant fear that the DOJ has ceased to impartially consider preclearance requests. If such truly is the case, or were to become the case, preclearance would be an undesirable mechanism for enforcement of the VRA because it would then become a shield to jurisdictions seeking to pass discriminatory voting changes. A quarterly report would rather make proposed voting changes a matter of record, force jurisdictions to explain their motives, and allow for public pressure on the DOJ if it fails to investigate a change that appears discriminatory.

    I appreciate Hasen's proposal, above all for the spirit in which it is proposed. I feel that a proactive bailout is an excellent idea, but would place an excessive burden on the resources of the DOJ. I hope the House will give Hasen's proposal the consideration it deserves and that this will be the beginning of the debate the VRA renewal has needed and, thus far, lacked.


Posted by Rick Hasen at 03:32 PM

Tokaji: Why Process Matters

The present version of the Voting Rights Act reauthorization bill (H.R. 9) would make a significant change to the legal standard under Section 5 . While this change is important, I suggest in this post that the lively debate over VRA renewal has overemphasized the standard for preclearance while underemphasizing the importance of the preclearance process. That process, which isn't changed by the proposed amendment, creates a considerable risk of partisan manipulation and may not be adequate to protect minority rights from the most pressing threats. Congress would thus be well-advised to take a hard look at the preclearance process as well as the standard.

I start with the proposed amendment to change the standard for granting or denying preclearance. The amendment purports to reverse the Supreme Court's decision in Georgia v. Ashcroft, by providing that compliance with Section 5 should be judged by a proposed redistricting plan's impact on "the ability of any citizens of the United States, on account of race or color ... to elect their preferred candidates of choice."

There's been considerable debate among academics and advocates over whether this change is a good idea. These competing views are nicely represented in this recent exchange between Bob Bauer and David Becker, as well as in several of the posts appearing in this ongoing conversation. Briefly (and at the risk of oversimplification), the debate focuses on whether it's acceptable to trade off "safe" minority districts, in which racial minorities have a high likelihood of electing a candidate of choice, for "influence" districts in which there are enough minorities to influence the selection of a candidate but not enough to control that selection. Georgia v. Ashcroft gives some flexibility for states to make such trade-offs.

While I think that this debate over the Section 5 standard is consequential, I'm not sure the stakes are quite as high as it might at first appear. That's because the proposed amendment leaves much to be defined -- as did Georgia v. Ashcroft.

It's important to bear in mind that the Justice Department and the courts will ultimately determine how an amended Section 5 standard is interpreted. And the phrases "ability ... to elect" and "preferred candidates of choice" leave plenty of room for interpretation. Does the ability to elect mean minorities' ability to control the outcome? By themselves? And does "preferred candidate[] of choice" mean only the first-choice candidate? I expect that the courts, including the Supreme Court, will ultimately interpret these terms in a way that leaves considerable flexibility for covered jurisdictions. If anything, the new Supreme Court -- with Justice Alito and Chief Justice Roberts replacing Justice O'Connor and Chief Justice Rehnquist -- is likely to have a stronger inclination to protect state sovereignty than the old Court. A state-sovereignty orientation would presumably lead the Court to read the new standard in such a way as to allow state and local jurisdictions flexibility (assuming, of course, that it upholds Section 5's constitutionality).

Take, for example, a state in which two of ten congressional seats are presently "safe" black districts, in which minority-preferred candidates have a near-certain chance of being elected. Should the state be permitted to get rid of one of those safe districts, to create two others in each of which a minority-preferred candidate has a 50% of being elected? Or to create three districts, in each of which a minority preferred candidate has a 33% chance of being elected? I suspect that the Court will allow trade-offs of this sort, if and when the matter comes before it.

As a practical matter, however, application of the new standard will initially lie in the hands of the U.S. Department of Justice. It's therefore not just the courts -- in fact, not mainly the courts -- that will be interpreting and applying the new Section 5 standard, assuming that it remains in the reauthorization bill and that its constitutionality is upheld. That power will instead lie, in the first instance, with the Justice Department.

This brings me to an aspect of Section 5 that has, in my opinion, received too little attention: the process that's followed in preclearing proposed electoral changes. Section 5 allows covered jurisdictions to obtain preclearance through either the Justice Department or a federal court (specifically, the U.S. District Court in Washington, D.C.). In the vast majority of cases, covered states and counties choose to seek preclearance from the Justice Department, which is much less costly and cumbersome than going to court. And in the overwhelming majority of those cases, including redistricting cases, preclearance is granted.

This is a process that leaves considerable room for partisan manipulation. In the 1990s, ideological conservatives and some Democrats claimed that the Justice Department was engaged in such manipulation, under the Bush I Administration. Specifically, it was alleged that Justice wrongly denied preclearance, in order to compel the creation of districts in which minorities constituted a majority (or even a supermajority) of the population. While there's considerable debate over the Justice Department's motives, and over the extent to which the creation of such safe minority districts helped Republicans, it's generally believed that they derived some benefit.

The 2000s have again seen claims that the Justice Department is manipulating the preclearance process, although those complaints now come from a different quarter. This time, the claims focus on controversial decisions of the Bush II Justice Department to preclear the Tom DeLay-backed Texas redistricting plan and Georgia's photo ID bill. Internal memos leaked to the Washington Post reveal that the decisions to preclear both changes was made against the recommendations of career staff, who concluded that they would harm minority voters.

In an important respect, these new concerns are more serious than those raised in the 1990s. In the 1990s, the allegations of partisanship had to do with "false negatives" -- that is, with the Justice Department's supposedly wrongful decision to deny preclearance. But such false negatives are subject to correction: a covered entity may seek judicial preclearance from the district court in Washington (albeit at considerable expense) if it believes that Justice has erred in denying preclearance. On the other hand, where the Justice Department erroneously grants preclearance -- a "false positive" -- there's no judicial remedy. That's because the Justice Department's decision to grant preclearance is final and not subject to judicial review.

One point on which those across the political spectrum ought to be able to agree is that the present preclearance process is subject to partisan manipulation. In a sense, this reflects an oddity that has always existed under Section 5 -- specifically, that an enforcement agency (the Justice Department) is charged with performing an adjudicative function. This process worked pretty well for many years, mostly because Democratic and Republican administrations were both committed to discharging their duties faithfully, in a way that would promote equal participation and representation by racial minorities. More recent developments, however, raise serious doubts about whether Justice can be trusted to administer its preclearance duties evenhandedly, without regard to partisan consequences. These doubts are only exacerbated by the proliferation of partisan election administration rules like Georgia's photo ID law, which threaten to impede participation by racial minorities -- to the benefit of the party in control of both the state house and the White House.

Although it's less clear what should be done to fix the problem of partisan manipulation in the preclearance process, there are at least three changes that Congress should consider. One is to make Justice Department decisions to grant preclearance judicially reviewable. This would undoubtedly increase the costs of preclearance, but would reduce the risk of partisan manipulation of the process.

Another possibility, suggested by Professor Gerken, is to replace the current "top-down" model with a "bottom-up" approach. Under this approach, civil rights groups instead of the Justice Department would have the initial duty of monitoring changes and negotiating with covered entities if they object. This approach could reduce preclearance costs, and could be effective if civil rights groups are compensated for their efforts. But it wouldn't eliminate the risks of partisan gamesmanship, since the Justice Department would still have to serve as a "backstop" making preclearance decisions when civil rights groups and covered jurisdictions can't arrive at a negotiated agreement.

A third possibility is to take authority over some preclearance decisions out of the Justice Department's hands, and place it in a bipartisan agency -- one that, for example, consisted of two Democrats and two Republicans -- with a majority required in order to grant preclearance. In the event of a deadlock, the dispute would ultimately wind up in court. This would probably drive up the costs of preclearance, since more cases would likely be resolved judicially rather than administratively. On the other hand, it would guard against the considerable risk of partisan manipulation, especially false positives, that exists under the current process.

As I've discussed at greater length in a forthcoming article, I think some combination of these three options is probably optimal. Alternatively, Congress might consider more limited measures of promoting transparency in the Justice Department's decisionmaking, along the lines that Mark Posner has suggested. Whatever the approach ultimately selected, it's imperative that the preclearance process and not just the standard receive attention.

--Dan Tokaji

Posted by Rick Hasen at 01:57 PM

Hasen: Ed Still on the Costs of Proactive Bailout (and My Response)

Writing in response to my recent post, Ed Still writes on the election law listserv:

    Rick,

    The problem with "proactive" bailout provisions such as Westmoreland proposes is the lack of understanding about who has the most opportunity, ability, and incentive to gather evidence proving the matters called for by the bailout provision.

    Take a look at the bailout requirement found in Section 4(a) of the VRA. Four requirements (A-C and E) are matters that can be found in the AG's files. Paragraph D requires the jurisdiction to show that it has not made any change that has not been submitted. How is the AG going to know that unless the Voting Section conducts an audit of every law, every regulation, every administrative bulletin implemented since 1964, 1968, or 1972? Paragraph F requires proof of the jurisdiction's affirmative steps beyond the prohibitions of Section 5 "changes" to have made things better for minorities. Again, how will the DOJ know this without doing a fact-intensive investigation "on the ground"?

    I have been involved with some preclearance requests on behalf of jurisdictions. I know it is tough just trying to get some small places to find all the election procedures they changed so we can tell the DOJ that previous practices have all been precleared.

    Ed Still


Here is my response:
    Ed,
    I think your argument proves my point. A proactive bailout proposal shifts the incentive to the DOJ (or rather, mandates the DOJ) to work in gathering this information. I want the DOJ to conduct those audits, with the cooperation of the local jurisdiction. If a local jurisdiction does not want to cooperate with a fact intensive investigation that DOJ conducts, then the jurisdiction will remain covered.

    Now perhaps the argument is that DOJ doesn't have the resources to do this. If that's right, then give DOJ more resources in the VRA bill. And if the argument is that it would take longer than a year to go through all the jurisdictions, then the amendment could be reworked to require DOJ to begin with those jurisdictions that appear most likely to be able to bailout, and to complete a review within three years of the Act of all jurisdictions.

    Rick


Gerry Hebert also will be posting his thoughts on the issue here shortly.

Posted by Rick Hasen at 01:53 PM

Katz: Why Reauthorization is Different

Numerous posts, to date, have focused on whether Section 5 should be extended in its current form, and whether Supreme Court will uphold it if it is. With the House of Representatives scheduled to vote this week on a bill to reauthorize Section 5 for another quarter century, I thought I'd offer a couple of thoughts on the second question. Specifically, how bad do things need to be in covered jurisdictions for the Court to deem a reauthorized Section 5 constitutional?

The prevailing view seems to be "pretty bad," with supporters and opponents of reauthorization disagreeing most vigorously about precisely how bad things are. It's an odd debate, particularly for supporters of reauthorization, who find themselves simultaneously celebrating all that preclearance has accomplished while lamenting the dire state of minority political participation in covered jurisdictions.

This gloomy view reflects the indisputable fact that discrimination in voting persists, and much of it remains quite serious. But it is also the upshot of the widely shared assumption that reauthorization of Section 5 will survive constitutional scrutiny only if Congress documents pervasive unconstitutional conduct in covered jurisdictions for which preclearance offers a remedy. Pam Karlan has recently argued otherwise, and in a forthcoming article (available here ) I take issue with this assumption as well.

I agree with much of what Pam has to say and indeed have written previously (see Reinforcing Representation, 101 Mich. L. Rev. 2341 (2003)) about the deference the Court has consistently accorded to the Voting Rights Act, even as the justices have articulated new and stringent limitations on congressional power to enforce civil rights in other realms. I think, however, that there is a distinct reason why reauthorization should not hinge on pervasive unconstitutional conduct in covered jurisdictions. Simply put, Section 5 is an operational statute. It was put into place forty years ago to combat precisely the type of pervasive discrimination Supreme Court decisions like City of Boerne v. Flores now demand for new congressional legislation.

Boerne and its progeny all involved the question whether a problem Congress sought to address was significant enough to warrant a new congressional statute. In that context, documentation of pervasive unconstitutional conduct signals a problem in need of a remedy. The Court should not, however, require a record of such conduct when Congress reauthorizes an existing statute. Indeed, if, four decades out, the evidence showed that covered jurisdictions were in fact still characterized by pervasive unconstitutional conduct of the sort preclearance was meant to target, then we should scrap Section 5 and hammer out a new statute that might actually address these problems.

Put differently, Section 5's very success in addressing racial discrimination in voting is itself neither proof that preclearance has become obsolete nor license for the statute to continue indefinitely. Instead, the question whether preclearance is still needed depends not on a raw assessment of the present scope of unconstitutional conduct in covered jurisdictions, but instead on a predictive judgment about the likely prevalence of such conduct absent the constraints imposed by Section 5.

Considerable evidence suggests that things have changed dramatically for the better in covered jurisdictions. While blatantly unconstitutional conduct has hardly been eradicated, contemporary manifestations of racial discrimination in voting are jarring precisely because they are no longer the norm, as they were before Section 5 was implemented. And yet, because these developments occurred in communities subject to the constraints imposed by Section 5, and, without doubt, were shaped by them, the question arises whether they would persist in the absence of the preclearance process.

That question can hardly be answered with certainty. Still, a study we conducted here at Michigan last year examining all published decisions under Section 2 of the VRA offers one lens through which to consider this prospect. Judicial findings under Section 2's totality of circumstances test offer a rich source of information detailing political participation nationwide, and a basis on which to compare such participation in covered and non-covered jurisdictions. I won't rehash all those findings here, but a few points are worthy of note.
Covered jurisdictions account for the majority of the Section 2 lawsuits in which plaintiffs achieved successful outcomes since 1982, even though less than one-quarter of the U.S. population resides in covered jurisdictions, courts in the region arguably apply standards that make success on a Section 2 claim more difficult, and the preclearance process blocks some portion of discriminatory electoral changes that might otherwise be challenged under Section 2.

More courts, moreover, have found the so-called Senate factors to be satisfied in covered jurisdictions than in non-covered jurisdictions. In particular, courts in covered jurisdictions have both found and have been more likely to so find: acts of official discrimination that curtail voting rights, the use of devices that enhance opportunities for discrimination against minority voters, a lower level of minority voter registration and turnout, contemporary voting opportunities shaped by the continuing effects of discrimination in various socio-economic realms, racial appeals, and a lack of success by minority candidates. Courts in both covered and non-covered jurisdictions found legally significant racial bloc voting in an equal number of lawsuits, but more courts in covered jurisdictions documented voting patterns that were extremely polarized and did so in a greater proportion of cases than did courts in non-covered jurisdictions. A racially exclusive slating process is the only Senate factor that more courts have found in non-covered jurisdictions than in covered ones.

None of this, to be sure, establishes a contemporary constitutional violation. Section 2's totality of circumstance inquiry nevertheless calls for examination of these factors based on the view that they all impede minority political participation and render electoral practices more likely to result in actionable discrimination against minority groups. This actionable discrimination is not necessarily discrimination that violates the Constitution. And yet, the reasons that render these problems probative of a Section 2 violation also make them indicia of an environment in which past unconstitutional conduct has yet to be fully remedied and future constitutional injuries are likely to arise.

That, of course, is not to say that preclearance necessarily remains 'congruent and proportional' so long as a full remedy has yet to be achieved, a prospect of future constitutional injuries exists, or identifiable differences persist between covered and non-covered jurisdictions. Indeed, it is not clear that the differences identified are sufficient to render a reauthorized Section 5 congruent and proportional legislation in the eyes of the Roberts Court, or indeed whether they should. But it is a debate about differences such as these that we should be having. The debate about reauthorization has instead focused for too long on the wrong question. The scope of unconstitutional conduct in covered jurisdictions cannot tell us whether preclearance is still needed. The debate on reauthorization should focus on evidence that might.
--Ellen Katz

Posted by Rick Hasen at 11:26 AM

Pildes: More on Bailout

[Note: The footnotes to this article appear below: in the extended entry portion of the post]

The bailout element of section 5 was originally designed in the 1965 Act to be integral to the overall structure, policy, and perhaps even the constitutionality of section 5. This element was to be a principal mechanism by which the coverage formula would properly adapt over time to remain congruent to where actual violations continued to occur. Congress' intent was that the unique regime of section 5 would thus unwind itself over time. Jurisdictions would bailout where appropriate; section 5 would have a more and more targeted reach; and the scope of the Act would remain tied to where problems predominated.

In the decision upholding the original section 5, the Supreme Court acknowledged that the original coverage formula might be overbroad, but that the bailout provisions, whose burdens the Court assumed would be "quite bearable" for covered jurisdictions, made the overall coverage-bailout structure sufficiently well tailored to be constitutional. South Carolina v. Katzenbach, 383 U.S. 301, 329-32 (1966). The Court also understood the bailout provisions to mean that "an area need not disprove each isolated instance of voting discrimination in order to obtain relief in the termination [i.e., bailout] proceedings." Id. at 332. As a declaratory judgment action immediately after the Act had been passed, Katzenbach was decided before the Court or Congress had any practical experience with the actual operation of the bailout mechanism.

Yet even by 1982, Congress recognized that, as a practical matter, the bailout mechanism had failed to perform its intended function. As of 1982, only nine jurisdictions had managed to bailout of section 5 coverage.[1] Congress concluded that this unanticipated low rate was caused, in part, by failures in the way the bailout provisions had been designed. Thus, Congress amended section 5 in 1982 in an effort to make bailout easier and more effective.[2] The DOJ estimated that 25% of counties in the major covered states would be eligible to bailout within two years of the amendments, by 1984.[3] At the time, some viewed this as a 'greatly softened bailout standard' and 'not a provision which the civil rights community wanted,' based on the view that the new standard would make bailout too easy.[4]

Yet as a practical matter, these amendments have failed to have much effect. Since 1982, only 9-11 counties in the entire country, all in Virginia, have attained bailout status.[5] And even these few bailouts do not appear to have broad implications. In these counties, the black population ranges from 1.1% to 9.1%, as of the last decade, the time frame in which DOJ approved bailout for these counties. The Hispanic population ranged from 0.5% to 7.2% during this same period. That only 9-11 counties -- with minority populations this low -- have managed to bailout does not appear to attest to the practical effectiveness of bailout.

In an earlier post, I noted four possible reasons bailout has not, as a practical matter, been used. I suggested there that Congress should first develop a more complete record in order to understand why bailout has not been more of a practical option, since whether legal changes are appropriate, and if so, in what form, depends on understanding the reasons it is so rarely used. Absent that more complete record, I can suggest several modifications, in order of importance, that might improve the bailout process:

1. Congress could require DOJ to take the initiative in identifying jurisdictions eligible or potentially eligible for bailout. Many witnesses that have addressed bailout have made recommendations of this sort. Thus, J. Gerald Hebert, the principal lawyer representing jurisdictions in bailout applications, has made a similar suggestion. In House hearings, his written submission stated: "I would recommend that when the legislation is reauthorized, Congress suggest the Department of Justice provide more information to localities about how to achieve bailout and encourage them to do so."[6] Professors Michael McDonald and Richard Hasen[7] have made a similar suggestion.

Shifting the initiating role in bailout to DOJ would address several possible reasons bailout has been so rare. To the extent jurisdictions are not well informed, a DOJ lead role could rectify that. A DOJ role could also reduce the financial costs to jurisdictions of the bailout process. Most importantly, to the extent elected state and local officials are risk averse about the political perceptions associated with their taking the lead in seeking to have their jurisdictions removed from section 5 coverage, shifting the initiating role to DOJ could mitigate perceptions of that sort, when those perceptions are not grounded in the actual facts. My sense is that this last factor does indeed play a significant role in explaining why so few jurisdictions have sought bailout.

2. Currently, towns, cities, and other local governmental units cannot bailout unless the entire county in which they sit can bailout as well. A better approach might well be to permit these local governmental units to bailout independently. That would bring the local government-county relationship under section 5 into the same relationship as the county-state one. Currently, a county can bailout even if the state in which it exists cannot. If there are policy reasons that the same relationship should not apply at the more local level, I am not aware of them. Again, the principal lawyer representing covered jurisdictions in bailout applications, J. Gerry Hebert has made this same recommendation in the House hearings.[8]

3. Congress could exclude from section 5 jurisdictions that today have populations below certain threshold levels of the minority groups protected under the VRA. The level at which that threshold should be set would require study and discussion. Perhaps populations somewhere below 5-10% would be an appropriate threshold, but I offer that only as a starting point for consideration. Among other effects, such a change would address the oddity of certain small towns in New Hampshire, for example, being swept into section 5 by the broad coverage formula. These jurisdictions might have been brought within the sweep of section 5 not because of a considered policy judgment that they warranted inclusion, but because the simple, general coverage criteria initially adopted formally applied to them.

Most importantly, I believe there can be broad-based consensus on improving the bailout process. Doing so in appropriate ways would not only be good policy. It would also indicate that the policymaking process is capable of adjusting the unique and extraordinary mechanism of section 5 to changing realities. That can only enhance the constitutionality of section 5 as a whole, particularly if Congress does not adjust the coverage formula in any way at all. Section 5 does not expire until 2007. It would be quite unfortunate were Congress to rush the proposed bill through without determining whether broad consensus on bailout reform exists and without reflecting such a consensus in the bill.

--Rick Pildes

Footnotes

1. Michael P. McDonald, Who's Covered? The Voting Rights Act Section 4 Coverage Formula and Bailout Mechanism, in THE FUTURE OF THE VOTING RIGHTS ACT (David Epstein, Richard H. Pildes, Rodolfo de la Garza, and Sharyn O'Halloran, eds., forthcoming, Sept. 2006). For a more comprehensive examination of the history of bailouts, see Paul F. Hancock and Laura L. Tredway, The Bailout Standards of the Voting Rights Act: An Incentive to End Discrimination, 17 Urb. Law. 379 (1985).

2. For a thorough study of Congress' consideration in 1982 of, and amendments to, the bailout provisions, see Paul Winke, Why the Preclearance and Bailout Provisions of the Voting Rights Act Are Still a Constitutionally Proportional Remedy, 28 N.Y.U. REV. L. & SOC. CHANGE 69 (2003).

3. Id. See also Hancock and Tredway, supra note ___ at 412.

4. See id. at 423 (quoting testimony of NAACP Executive Director and MALDEF President and General Counsel). See also McDonald, supra note ___.

5. See The Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Oversight Hearing Before the H. Subcomm. on the Constitution, Comm. on the Judiciary, 107th Cong. 88 (Oct. 20, 2005) (statement of Gerald Hebert, Esq., former acting Chief, Civil Rights Division, U.S. Department of Justice).

6. Hebert testimony, supra note __ at 90.

7. See McDonald, supra note ___; An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Before the S. Comm on the Judiciary, 108th Cong. 4-5 (May 9, 2006) (statement of Richard L. Hasen, Professor, Loyola Law School).

8.Hebert Testimony, supra note ___ at 91.

--Rick Pildes

Posted by Rick Hasen at 11:09 AM

Hasen: Proactive Bailout Amendment to Be Offered in House Rules Committee

I have been advocating a proactive bailout amendment for VRA renewal that I think can increase the chances that a renewed VRA passes constitutional muster without weakening the important protections of section 5. Rep. Lynn Westmoreland will be offering this amendment on proactive bailout today to the House Rules Committee. That committee will determine if the amendment gets offered on the floor of the House during the vote on VRA renewal on Thursday. His office also has issued this explanation of the proposed amendment.

Aside from the general statement in Laughlin McDonald's Findlaw piece opposing a "preemptive weakening" of the VRA renewal amendment, I have not seen anything written from anyone on the merits as to why proactive bailout is a bad idea. I think I prefer the language I've crafted to the Westmoreland amendment, but I'm asking the more general question. What are the arguments against proactive bailout, provided that the standards for which jurisdictions may bail out don't change? Just to answer what I consider to be an obvious objection: what prevents a political DOJ from overreaching and consenting to bailout in too many jurisdictions? The answer is that if DOJ does so, at least under my proposal intervenors can object and the three-judge panel considering the bailout request must conduct a hearing on whether bailout is warranted.

Posted by Rick Hasen at 09:24 AM

"English-only now lurks at the ballot box; No more pamphlets: Utah says the Spanish-language voter info will cease unless the feds say otherwise"

The Salt Lake Tribune offers this report. Some who favor reauthorization of VRA section 203 (the foreign language provisions) might be upset that the question of ballot translation is becoming emboiled in the immigration/English only debate. (Note the ignorance of the anti-illegal immigration activist quoted in the article as saying: "You can't vote unless you are a citizen. You can't be a citizen unless you speak English." Of course, we don't give a literacy test to any citizen born in the U.S. who is otherwise eligible to vote.) When I was on Airtalk yesterday talking about the Padilla v. Lever case, it was clear that some listeners are connecting questions over 203 with the broader immigrant debate. See also this posting by Peter Kirsanow.

But there's a silver lining. It can help bolster the case for the measure's constitutionality. (Here are Dan Tokaji's earlier thoughts on that issue.) The stories like the one coming out of Utah help illustrate the intentional discrimination that likely would arise against those who are eligible to vote but may not speak English (well) in the event that Congress would not renew section 203.

Posted by Rick Hasen at 06:56 AM

June 19, 2006

New Ellen Katz Paper on VRA Renewal

Ellen Katz has posted a new draft paper, Not Like the South? Regional Variation and Political Participation Through the Lens of Section 2. I quickly read this draft and think it will be important in the legal debate over the constitutionality of a renewed section 5. It presses the point that I've been disagreeing with: that because section 5 has been such a good deterrent, the Supreme Court shouldn't require Congress to meet the same evidientiary burden it would need to meet with a new statute.

Posted by Rick Hasen at 01:46 PM

June 16, 2006

"Defending Georgia v. Aschroft (While Supporting Renewal of the Voting Rights Act)"

Bob Bauer will be presenting these remarks at the ACS Convention. It begins:

    On the right today, there is some distress over components of the negotiated renewal of the Voting Rights Act, the claim being that the preservation of the "trigger" or the 25 year renewal period are unfair to covered states or lacking in "modernity." Yet both the left and right seem comfortable with the provision effecting a "partial reversal" of the Supreme Court's decision in Georgia v. Ashcroft. On this point, I think progressives are mistaken. For while the renewal overall makes sense, it is better enacted without this additional feature. In fact, Georgia v. Ashcroft--not its invalidation, partial or otherwise--fits well within the preserved core of the VRA as contemplated under the negotiated agreement now before the Congress.

Bob's paper is very interesting, especially read against the uncertainty of the language that the draft bill uses to assure the partial reversal of Ashcroft. The bill says that the Supreme Court in Georgia v. Ashcroft "misconstrued Congress' original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act." Later the bill states that any voting qualifications etc. "that has the purpose of or will have the effect of diminishing the ability of any citizens of the U.S." to "elect their preferred candidates of choice" {note: language corrected 6/17 from an earlier error] violates section 5. Bob notes (fn. 4) that the section lacks clarity.

There are two interesting questions to ask regarding this language: (1) what would courts interpret the language to mean? and (2) why would "the deal" include a provision lacking in clarity?

On the first point, we have already seen some early attempts to give the meaning certain content in particular directions. Compare, for example, the discussion beginning on page 68 of the Final House Report with Part III (beginning on page 7) of Nate Persily's supplemental testimony before the Senate Judiciary Committee. There's a certain parallel here with the debate in 1982 over the meaning of section 2, which ultimately got "clarified" when Justice Brennan crafted his three-part threshold test, followed by a "totality of the circumstances" test, in Gingles.

On the second question, sometimes lack of clarity in legislation is necessary to keep a deal together. Perhaps the section has not been drafted more clearly (for example, to tell us how the courts should treat influence district claims under section 5) because to do so would break up the coalition between the Republican leadership and the CBC in the House.

In any case, we can be sure that if the VRA renewal passes in this form, there will be plenty of work for lawyers urging various interpretations on the courts of this provision, and room for a political DOJ (Democrat or Republican) to read it in ways that might suit the Administration's political needs.

Posted by Rick Hasen at 08:05 AM

June 15, 2006

Two More Law Profs Join VRA Renewal Guest Blogging

I am pleased to add two important voices to the law professor forum on VRA renewal.

Ellen Katz, a law professor at Michigan, was the primary researcher and writer of this important report on the history of section 2 violations since 1982.

Spencer Overton, a law professor at George Washington, is the author of the new book, Stealing Democracy: The New Politics of Voter Suppression (whose praises I have already sung).

I look forward to reading their interesting contributions!

Posted by Rick Hasen at 08:59 AM

Hasen: Karlan on Congressional Power to Renew the VRA Preclearance Provisions

Pam Karlan has posted this paper on the ACSBlog (link via Ed Still). This is a very important paper, the first one I think to seriously respond to the questions I have raised on the topic. (Others have responded in congressional testimony, mostly with platitudes about Congressional power.) I look forward to reading Pam's paper more closely. From what I can tell from my initial look, the main place I quarrel with the paper is on Pam's prediction of how the new Roberts Court is going to deal with the "new federalism" cases. There's not a mention of Justice O'Connor's position as the swing voter in Tennessee v. Lane, and the replacement of O'Connor and Rehnquist (whose vote also mattered in Hibbs) with Alito and Roberts.

I wonder whether Pam would agree with me that, despite our disagreement over the likelihood of a Supreme Court overruling of the renewed provisions of the VRA, some changes to the VRA would enhance its chances of being upheld, such as the proactive bailout proposal I have made. I know that Laughlin McDonald opposes what he views as a "preemptive weakening" of the statute. I don't think it is preemptive. I fear that a Supreme Court decision striking down the renewed VRA provisions would do a great deal of damage: "[I]t is not clear that the political coalition that could pass the renewed VRA in its current form would reach agreement on a narrower VRA after Supreme Court invalidation. In addition, and crucially, these arguments ignore the effect of having a decision on the books that partially overrules the VRA. As I recently told the Senate Judiciary Committee, a Supreme Court holding striking down section 5 of the Act could pave the way for striking down the (now more important) section 2 of the Act - under which key voting rights litigation now proceeds, and other civil rights laws as well. If section 5 is held to exceed Congressional power, might other civil rights laws be held to do the same?"

Posted by Rick Hasen at 07:44 AM

June 07, 2006

Hasen: Using Republican Protests Over VRA Renewal to Mend, Not End, the VRA

Rep. Lynn Westmoreland has written this oped for The Hill, "Georgia has changed for the better, and the Voting Rights Act should too," which appears to be the same as this one that appeared May 29 in the Atlanta Journal Constitution.

I normally don't link to opeds that appear in numerous places, but here I think it is interesting that this is appearing now. In my recent Findlaw column on VRA renewal, I wrote: "A few House members from Georgia and Texas are making noises about extending the act nationally, but this appears to be just political posturing for the folks back in their districts." I am now wondering if this is more than "making noises." That is, I am wondering whether some Republicans like Westmoreland are serious about fighting for changes in VRA renewal.

It seems pretty clear that the Republican leadership, along with Democrats in the House, will be able to pass a renewal, even over the objections of a few Southern legislators. The real question, I think, is going to be whether Sens. Cornyn and Sessions on the Senate Judiciary Committee, along with potentially other Senators, are going to take steps to try to make changes in the bill. These Senators will have a lot more power to force such changes than the House skeptics.

Bob Bauer has rightly questioned whether the agonizing of Sen. Cornyn over the constitutionality of a renewed VRA is sincere. He'd likely say the same of Rep. Westmoreland's agonizing. But these protests present an opportunity for those in Congress who are more committed to a renewed VRA that passes constitutional muster to craft a compromise on the bill. That is, even if one does not accept Sen. Cornyn's or Rep. Westmoreland's concerns as genuine, there are real concerns about the constitutionality of the Act that VRA renewal supporters should address. The Cornyn-Westmoreland concerns provide the right political climate of "compromise" to make some changes in the VRA renewal bill, such as adopting a proactive bailout provision.

Posted by Rick Hasen at 08:15 AM

May 30, 2006

Answers to Judiciary Committee Questions on VRA Renewal

After my appearance at the Senate Judiciary Committee hearing on Voting Rights Act renewal earlier this month (testimony here), I received follow-up questions from Senate Judiciary Chairman Arlen Specter, and from Senators Cornyn and Sessions. I have posted my responses to the questions here.

Posted by Rick Hasen at 10:39 AM

"What Congress Should Consider Before Renewing the Voting Rights Act: A Chance to Preempt Supreme Court Invalidation, and Better Protect Minority Voting Rights."

I have written this Findlaw column. It begins: "Important provisions of the Voting Rights Act (VRA) expire next year, unless renewed by Congress. The good news is that a vigorous debate is taking place over whether, and how, the relevant VRA provisions should be amended before they are renewed. The bad news is that this debate is taking place among academics, not among Members of Congress."

Posted by Rick Hasen at 06:27 AM

May 26, 2006

Another Jurisdiction Attempts to Bail Out from VRA Coverage

It is the City of Salem, Virginia. You can find the request before the three-judge court here. Gerry Hebert tells me that, if successful, this would mark the 11th jurisdiction to bail out from coverage of the VRA since 1982. I believe these were all or mostly in Virginia, and all or mostly handled by Gerry, the Bailout King. I hope that Gerry will weigh in on my proposal to ease bailout requirements in the renewed VRA as a way to try to save its constitutionality.

Posted by Rick Hasen at 02:12 PM

May 23, 2006

Persily: Shaw, the Texas Gerrymander, and the Reauthorization of Section 5

One issue that I think may not have been covered in this blog is the relationship between the reauthorization of section 5 and the voting rights issues involved in the Texas gerrymandering case (Sessions et al. v. Perry). In particular, there are the two section 2 claims (Martin Frost's district and the failure to create an additional Hispanic district in the south) and two Shaw claims involved with Henry Bonilla's district and the district that stretches from Austin to the Mexico border.

In my earlier post I did not mean to understate the importance of the Shaw line of cases (as voiced by Abigail Thernstrom in her testimony) to the way the Court may resolve the constitutional questions surrounding the reauthorization of section 5. The 1990s round of DOJ-inspired majority-minority districting, as Thernstrom explains, led to the Shaw cases, and those precedents may lead the Court to strike down the proposed retrogression standard in the reauthorization bill.

I see the Shaw cases - assuming they exist as real precedent post-Easley - cutting both in favor and against the current bill. On the one hand, there is the argument that the new retrogression standard (the Ashcroft fix or ability to elect standard) is itself a violation of the Equal Protection Clause or will lead DOJ to force the creation or maintenance of districts in which race was the predominant factor. Indeed, if the law actually said that all majority-minority districts must be maintained, then I suspect Kennedy would vote to strike it down. This is why I think Congress (and then later the Court in interpreting the statute to avoid constitutional difficulty) will/should be clear that the ability to elect standard (1) does not place primacy on majority-minority (over 50%) districts, per se, (2) does not freeze in place the racial percentages in current districts for 25 years, and (3) does not permit retrogression by way of overconcentration (packing) of minority districts. If I am wrong about that, then the basic rule against racial predominance in Shaw/Miller could lead to the Court striking down the law.

However, the existence of Shaw as a background restriction on the drawing of minority districts could also help save the statute. In other words, the ability to elect standard is constitutional precisely because Shaw only allows districts created pursuant to that standard where race does not predominate or if it does, then the standard allows such districts only when narrowly tailored to avoid a voting rights violation.

Here is where the Texas case comes in. District 25 (the Austin to Mexico district) is an offset district - meaning that it was created to avoid a voting rights violation that might be caused by the drop in the Hispanic population in a different (Henry Bonilla's) district. Although it is unclear and perhaps unlikely that the Court will view District 25 through the eyes of Shaw (as urged by the Democrats), if the Court does, then it may offer some ideas as to whether the district is narrowly tailored to avoid dilution or retrogression. (Of course, the Supreme Court, like the District Court, may just write all of this off as part of a partisan gerrymander and say partisanship, not compliance with the VRA, predominated in the construction of this district.) However, if and how it deals with that Shaw claim as well as MALDEF's Shaw claim on Henry Bonilla's district (which they argue is kept at barely 50% simply for racial reasons), could offer some insight as to how the Court may view the ability to elect standard. I suspect they will sidestep the issue of whether compliance with section 5 (or 2) is a compelling state interest that justifies the narrowly tailored creation of an otherwise Shaw-violative district, but maybe we will get some idea on that as well.

The VRA section 2 claim concerning Martin Frost's district is also relevant to the reauthorization debate. The claim there is that Frost was the African American community's candidate of choice, and that the reconstruction of his district diluted the black vote, despite the fact that African Americans did not constitute a numerical majority in the district. While some might call this a Section 2 influence district claim, both the memo from the DOJ line attorneys and the plaintiffs' brief describe Frost as the minority community's candidate of choice. Now, I don't think for a minute that this will be an argument that will win over the Court's majority. However, we have here, in essence, a claim about the ability of African Americans to elect their preferred candidate of choice - i.e., the standard that now appears in the reauthorization bill. How the Court evaluates this claim could give us an idea of what they would think about that standard in general.

I recognize this discussion will seem like overly nuanced inside baseball to some and beside the point for others who think the Court will largely ignore the voting rights and Shaw issues. Yet, if the Court does deal with these claims, as I suspect the more liberal Justices will and as Justice Kennedy seemed to indicate at oral argument, we may get some insight as to what they think of the constitutionality of the standard in the reauthorization bill.

--Nate Persily

Posted by Rick Hasen at 04:24 PM

May 19, 2006

Karlan: Senator Cornyn on speaking English

Rick Hasen's post on the VRA quotes Senator Cornyn as follows:

    He said he also shares concerns about another element of the law regarding language assistance. Jurisdictions with high numbers of people whose native language isn't English must print bilingual ballots. Some must also provide translators.

    "In order to be an American citizen you have to learn English. Why would we continue to publish ballots in a language other than English?''' That's a pretty compelling argument," Cornyn said.

Senator Cornyn is just plain wrong. Not to mention ignorant.

First, anyone born in the U.S. is a citizen regardless of whether he or she ever learns to read English. Perhaps he might remember that the precise question in Katzenbach v. Morgan was the constitutionality of the provision in section 4 of the original '65 Act suspending literacy tests nationwide for individuals who'd been educated in American-flag schools where the language of instruction isn't English.

Second, suggesting there's a problem with having translators ignores the fact that one place they've been used extensively is on Indian reservations to translate ballots into unwritten Indian languages for voters who can't read English (or can't read it well enough to cast a ballot effectively). What an outrage it would be to diesenfranchise Native Americans for not being sufficiently "American."

I would wager Senator Cornyn's ignorance comes from an anti-immigrant focus. Here, though, he's wrong for yet a third reason: the level of English proficiency required to become a U.S. citizen is significantly lower than the level of English proficiency a citizen might need to fill out his or her ballot. At the Earl Warren Institute voting rights conference in D.C. this past spring, Ana Henderson talked about an empirical analysis comparing the reading level necessary for the two tasks. Given how indecipherable I sometimes find the official California voter information pamphlet's explanation of ballot initiatives even though I graduated from law school, I don't doubt this for a moment: if we only let people become citizens if they could read and understand ballot materials, we could just get rid of the naturalization process altogether.

I suppose this is just another example of Cornyn shooting from the hip -- just like his outrageous comments last year rationalizing violent attacks on judges as somehow connected to judicial "activism" (by which I doubt he means decisions like Boerne, Garrett, and Kimel) -- but it's a nasty sign of the times.

--Pam Karlan

Posted by Rick Hasen at 03:16 PM

Tokaji: What About Section 203?

Most of the scholarly debate over the expiring provisions of the Voting Rights Act has focused on Section 5's preclearance requirement. But in terms of promoting equality of participation, the language assistance provisions of the VRA are at least as important. The language assistance provisions, Sections 203 and 4(f)(4), will also expire in 2007, unless renewed. While perhaps less controversial among legal scholars than preclearance, the language assistance provisions have generated somewhat greater opposition in Congress. This post explores some of the policy and constitutional issues surrounding language assistance. These issues are particularly germane at the moment, because they are part of the reason for Senate Republicans trying to slow down the consideration of VRA reauthorization, according to this report.

The most important language assistance requirement is Section 203. That provision requires language assistance for non-English proficient citizens, in places with a significant number or percentage of them and above-average illiteracy rates. States or political subdivisions (typically counties) are covered, if 1) more than 10,000 citizens or more than 5% of the population are members of a single language minority group, and 2) the illiteracy rate of language minorities is above the national illiteracy rate. A list of covered jurisdictions may be found here.

The other significant language assistance provision is Section 4(f)(4), which covers jurisdictions where a language minority group was over 5% of the voting-age population, materials were provided only in English, and less than half of the population was registered to vote in 1972. Jurisdictions covered by section 4(f)(4) must also meet the preclearance requirement of Section 5. The issues surrounding this requirement mirror those in the larger debate over preclearance on which this exchange has focused, so I'll mainly address Section 203 here.

Covered jurisdictions must "provide[] registration or voting notices, forms,instructions, assistance, or other materials of information relating to the electoral process, including ballots, ... in the language of the applicable minority group as well as in the English language." Both written materials and oral assistance should be provided to covered groups, which include Asian American, Hispanic American, Native American, and Alaskan Native citizens. Almost 300 jurisdictions are covered by Section 203's language assistance requirements.

Perhaps the reason that language assistance has gotten less attention than preclearance, at least from legal scholars, because the case for its renewal is relatively straightforward. Assistance to citizens who are not yet fluent in English, the argument goes, is essential to ensure equal access to the vote. These provisions are thus vital to ensuring equality of participation. By contrast, most of the issues surrounding Section 5 preclearance in recent years don't have to do with participation (i.e., the ability to vote and have one's votes counted), but rather with issues of representation -- most notably, with how voting districts are drawn, and what's necessary to ensure that minority groups' collective interests are adequately represented in legislative bodies.

While there is considerable disagreement over what's necessary to ensure equality of representation, and over what role the Justice Department should play in policing that norm, it's harder to disagree with the principle of equal and informed participation. In fact, Congress recently reaffirmed this principle when it enacted the Help America Vote Act of 2002 (HAVA). Section 301 of HAVA mandates that voting systems provide alternative language accessibility, specifically referencing Section 203's language assistance requirements.

The arguments for renewing Section 203 are, to my mind, compelling. These requirements are very important to language minority communities. To take one example, a 2004 exit poll of approximately 11,000 Asian American voters found that almost one-third of them needed some assistance. The percentage needing assistance was even higher for new voters. There are, to be sure, costs on covered jurisdictions to comply with Section 203, but those costs are well worth bearing in order to ensure that citizens who aren't yet proficient in English are able to participate and make informed choices. There's a reasonable argument that the federal government should at least partly subsidize local jurisdictions' costs, but the basic idea of providing help to non-English proficient citizens is hard to argue with. That's particularly true, given the complex initiatives and referenda that regularly appear on the ballots of many states. It's difficult enough to understand most of these ballot measures when they're written in one's native language, let alone in a second language.

A bit more difficult, at least to my mind, is determining the constitutional theory under which Congress has the power to require state and local government to provide language assistance. It's true that, in Katzenbach v. Morgan (1966), the Court upheld a VRA provision suspending literacy tests for those educated in American schools where their classroom language wasn't English. But as Rick Hasen and others have observed, the Court's new federalism cases have sharply limited Congress' authority to enforce civil rights, requiring that federal laws be "congruent and proportional" to the constitutional violations they purport to redress.

The conventional justification for the VRA's key provisions is that they're designed to redress intentional discrimination against minority voters. This justification makes sense when it comes to Section 2 and Section 5 of the VRA. Even though these provisions both incorporate effects-based tests that go beyond what the Constitution requires, those tests can be defended on the ground that they're needed as a prophylactic against intentional discrimination. I think the prophylaxis argument is bit more difficult with respect to Section 203. There undoubtedly has been -- and continues to be --a great deal of intentional discrimination against language minorities. But is it a congruent and proportional remedy to require all jurisdictions with substantial non-English proficient citizen populations and low literacy to provide affirmative language assistance?

An alternative justification is that Section 203 is needed to remedy intentional discrimination outside the voting process. Disparities in the educational opportunities offered to language minority groups, this argument goes, makes it necessary to accommodate citizens who aren't proficient in English at the polls. The evidence of unequal educational opportunities is undoubtedly strong. The problem is showing that these inequalities stem from intentional discrimination against language minorities. If they don't, then there's no constitutional violation, and it's therefore hard to argue that Section 203 is congruent and proportional under the new federalism cases.

To be clear, I think that both of these "intentional discrimination" arguments for Section 203 are quite plausible, and it's certainly possible that the Court will accept one or both. The arguments are strengthened by the Court's decision in Tennessee v. Lane (2004) which suggests that Congress has broader latitude under the congruence and proportionality test, when it comes to fundamental rights like voting. But it's not crystal clear that requiring language assistance can be justified under Congress' authority to remedy intentional discrimination.

This leads me to sketch out a third possible ground for upholding Section 203: that Congress need not demonstrate intentional discrimination based on race or ethnicity, when acting to promote rights of participation or access, as opposed to representation. The Court has sometimes found constitutional violations based on a denial of equal access, even where no intentional discrimination is proven. One example is Harper v. Virginia (1966) striking down Virginia's poll tax, a case where race discrimination was surely in the background but wasn't the basis for the Court's decision. Another is Bush v. Gore (2000), in which the Court found disparate standards for vote-counting unconstitutional, even without evidence of intentional discrimination (much less intentional race discrimination). On the other hand, intentional race discrimination is required to prevail on a qualitative vote dilution claim, under Mobile v. Bolden (1980).

My point is not to argue that there's a constitutional right to language assistance at the polls. It is, instead, that rights of participation ought to be treated differently from rights of representation -- or, put another way, that vote denial is different from vote dilution. (I flesh out this claim in my forthcoming piece, The New Vote Denial.) The Court hasn't precisely defined the limits of equal protection when it comes to claims of participation/vote denial. In fact, in Bush v. Gore, the Court took great pains to emphasize that the boundaries of equal protection are fuzzy in this area: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Where the Court hasn't yet defined the contours of constitutional rights, as is the general case with respect to access claims, it would be more than a little unreasonable to apply the congruence and proportionality test with the stringency that the Court has adopted in other areas. This suggests a third basis for upholding Section 203: that Congress should have more room to operate when it seeks to promote equality of participation.

Maybe all this is a lot of worrying over very little. As Nate Persily has suggested, it's likely that Justice Kennedy will be the swing vote on the renewed VRA's constitutionality, and he may already know what he's going to do. Moreover, the federalism burdens imposed by Section 203 are less severe than those imposed by Section 5. On the other hand, Section 203's connection to intentional race discrimination seems somewhat more attenuated than Section 5's. Thus, when Congress reauthorizes Section 203 -- as I hope and expect it will -- it should make sure to consider alternative theories for upholding it in the court challenge that can be expected to follow.

--Dan Tokaji

Posted by Rick Hasen at 02:24 PM

May 18, 2006

Pildes: On Bailout

On bailout: The original vision of Section 5 and the vision further emphasized by Congress in 1982, when it amended Section 5 in an effort to facilitate appropriate bailouts, was that the the unique regime of Section 5 would unwind itself over time. Jurisdictions would bailout where appropriate; Section 5 would have a more and more targeted reach; the scope of the Act would remain tied to where problems predominated. As it turns out, however, bailout has been close to non-existent, for practical purposes, throughout the history of the Act, including since 1982. With Gerry Hebert's expert assistance, a handful of counties in Virginia have managed to bailout since 1982. But sensible policymakers should take no great solace in this. These counties all had de minimis black populations, perhaps around 5% on average if I recall. What they reveal about the bailout process for jurisdictions that actually have significantly-sized minority populations remains unknown.

I see three central potential causes for the failure of bailout to play the role envisioned for it, though only two have been mentioned thus far: (1) ignorance on the part of appropriate jurisdictions that bailout exists and they are eligible for it; (2) excessively high legal standards that make bailout impractical; (3) the charged nature of a jurisdiction seeking to "get out of the VRA," particularly for risk averse elected officials. I do not know the relative contribution of these causes, or other potential ones. Indeed, an extremely productive role for Congress would be to examine this question, with an eye toward determining if the bailout process ought to be revised. However, I do know from my experience that officials in covered jurisdictions will frequently offer (3) as their first response. Others I have talked with confirm this.

This is relevant to assessing Rick Hasen's proposal regarding the role of DOJ (or perhaps a commission of some sort) in providing data relevant to potential bailouts, and perhaps taking other steps to initiate the process (subject to judicial review perhaps). The central benefit of some proposal of this form is that it seeks to address (3) by taking some of the heat off of jurisdictions for taking the first step in pursuing a bailout process. For purposes of sensible policy, as well as the constitutionality of Section 5, there ought to be broadly shared interests in making it easier for jurisdictions to bailout where appropriate. If, as I suspect, (3) contributes significantly to the invisibility of bailout, then any improvement of bailout must come to terms with this issue. Mark's response, which worries about the burdens on DOJ, does not take (3) into account at all in reacting to the proposal.

The former DOJ lawyers might be able to provide useful perspective on what informational role and burdens it would be reasonable to put on DOJ to facilitate appropriate bailout, given (3). My initial response to Rick's proposal is that the process should be more of an administrative one, subject to judicial review. Rick preserves the original bailout structure, in which the AG and jurisdiction have to go to court. That seems a remnant of the original Section 5 that might make less sense today, as long as courts are there as a backstop. Of the practical things that can be done to bolster the constitutionality of a renewed Section 5, I think (a) making bailout more practical and effective and (b) shortening the term of renewal are the most feasible. And I think a well-thought through proposal on (a) is likely to generate the most widespread consensus of the two options.
---Rick Pildes

Posted by Rick Hasen at 02:14 PM

Persily: Thoughts on VRA Reauthorization

I. Highlights from Wednesday's hearing

Wednesday's hearing did not have many surprises. Senator Leahy started the hearing, alone, and each witness delivered their testimony. Fred Gray talked about the history of the VRA and its continuing relevance as a deterrent in Alabama. (I have to say it was pretty impressive to have Rosa Parks and Martin Luther King's former lawyer testify at these hearings.) Drew Days talked about the constitutional issues, but I don't think he added anything to Pam's discussion the day before. Abigail Thernstrom was as advertised - meaning she spent most of her time criticizing "racial sorting" and "apartheid" that results from the intentional creation of majority-minority districts. (She got into an entertaining tussle with Senator Durbin during the question period.) Armand Derfner gave testimony similar to Gray's, attesting to the continued need for section 5 in the South. I tried to focus my discussion on what the "ability to elect" standard might mean and how it would be applied. (Consider my testimony directed to the election law and redistricting nerds out there.) Warning that overconcentration (packing) of the minority community will likely prove the greater threat in the proposed 25 year span of the bill, I wanted to make sure that the legislative history was clear that this new retrogression standard prevented that as well. I also wanted to emphasize that the standard is not code for majority-minority districts and would not require that minority percentages in districts be frozen for the next 25 years. I also tried to give a list of factors that would go into this new retrogression determination.

Two interesting developments at the hearing –
(1) John Lewis sent a letter to the hearing room, which Leahy read and inserted in the record. The letter expressed Lewis's sadness that his testimony in GA v. Ashcroft had been taken out of context by some witnesses to suggest that he was against this bill or reauthorization more generally.

(2) After a recess once we delivered our testimony, Senator Hatch chaired the remainder of the meeting. He focused his questions on the Thernstrom critique. He did so by referring to Stuart Taylor's recent National Journal article that was critical of majority-minority districting and the coverage formula. His main concern, however, was the relationship between the creation of such districts and polarization in the House. He has asked us (and I suppose any of you who are interested in submitting testimony) to submit additional testimony on the issue whether section 5 is leading to greater political polarization by creating safe minority districts and more heavily conservative districts in white areas. (I didn't want to burst his bubble and ask what might then explain rising polarization in the Senate if gerrymandering is to blame?) Incidentally, Washington Post reporter Juliet Eilperin's new book – Fight Club Politics – blames gerrymandering for polarization in the House, but she spends only a few pages on majority minority districts.


II. Politics

I think David Epstein has the politics about right when it comes to the reauthorization debate. I am not so sure that either the civil rights groups or the Democrats' hand will be any weaker though, if this stretches beyond the midterms. If this bill becomes unraveled on the floor because of amendments etc. (an unlikely event), I could easily see the plug being pulled, the issue being used in the midterms, and then a resolution afterwards.

The most likely change I could see happening on the floor would be a shortening of the 25 year period. That would be the "compromise" offered to the few Republicans who object, perhaps in the name of trying to save it from being struck down by the courts.

III. The Trigger's the Thing

I think everyone involved recognizes that the trigger may be the most vulnerable part of the bill to constitutional attack. I could easily see a Supreme Court decision (i.e., Justice Kennedy) saying - well, the bill otherwise may be constitutional but not with this incongruent and disproportionate coverage formula. The best justification for the current trigger, I think, would be that racially polarized voting in the covered areas is - in general - greater than in the non-covered areas. I should say that my gut tells me that must be right but I have no idea whether that is proven. Sure, that wouldn't justify covering townships in Michigan and New Hampshire, etc., but the trigger has always been over and underinclusive. (Incidentally, the fact that "party" may explain this polarization in the South – per the Bullock & Gaddie studies – does not dispose of racial polarization as the justification for the coverage formula. Whether racially polarized voting would be sufficient to justify the trigger as a constitutional matter is a separate question, of course. More on this below.)

One thing that has become clear to me is that a potential debate over the trigger really becomes a proxy for the larger debate over what the VRA is really about - barriers to access, vote dilution, racially polarized voting, discriminatory and/or partisan enforcement of election law etc. Having that debate would certainly lead to the unraveling of this particular bill.

So why not just change the coverage formula? Leaving aside the political difficulties and the potential constitutional pitfalls of expanding coverage, it is extremely unclear what kind of trigger akin to "test plus low voter turnout" would work these days. Having a record of section 2, 5 or other violations in the last decade or two would probably cover too few jurisdictions. The data presented in Michael McDonald's excellent article - which does the best job of trying to use historic methods for a contemporary coverage formula - suggests that 2004 election data could be used to supplement rather than substitute for the current coverage and doing so would capture more of Florida (as well as a lot of other ). But I doubt most people think current barriers to minority participation and influence manifest themselves in lower voter turnout jurisdiction-wide and probably don't manifest themselves in racially disparate rates of voter turnout. (Incidentally, the Bullock-Gaddie articles on the AEI website attempt to evaluate rates of turnout by race to show that African Americans often vote at higher rates than whites. There is a big mistake throughout their studies though at least with respect to their reference to census data. They accidentally lumped in Hispanics with whites instead of using non-Hispanic whites as the proper comparison group.)

Since expanding coverage nationwide is also administratively impossible (or at least really, really expensive) and would likely run into political and judicial constraints, it is no wonder that the bill sticks with the currently covered jurisdictions. At least that is the devil we know, and who knows whether the status quo is more or less likely to be declared unconstitutional than any given proposal. If I had my druthers and was forced to work within the current section 5 regime, though, I would legislate two coverage formulas - a primary and a backup - akin to that used in the BCRA's issue advocacy provisions. The primary definition of coverage would be updated for 2004 while the backup would be the one currently in the bill.

That said, of course there are problems with the section 5 architecture in general, and like everyone who has weighed in on the debate, I would throw myself behind national election reform, which is, alas, politically impossible at the present time for reasons David Epstein explains. At some point in the next 20 years though, I suspect that something along the lines of the following deal will be brokered (even though there are obvious problems with each aspect of this as is true of all such deals):

1. National rules of voter registration that give a right to vote in federal elections to all citizens of voting age who are not incarcerated.
2. A national voter I.D. card (probably not with a photo or fingerprint but maybe) affirmatively provided by the federal government (or maybe just a spiffed up social security card) that will be a legal minimum for voting - i.e., no one could be refused the vote if they bring this card with them, but states could allow for other forms of ID (or just a signature) as well.
3. Repeal or modification of section 5 and/or section 2 of the VRA.
4. Perhaps a uniform ballot to be used for federal elections. (Yes - I understand the federalism questions/concerns/dangers with all of these.)
5. Some attempt to craft a body like the FEC or EAC to be more independent and effective with respect to oversight of federal elections.

Like I said, this is not even on the horizon right now (nor in some respects should it be), but after the next electoral meltdown it might be.


IV. GA v. Ashcroft and the Ashcroft-fix in the current bill

I think academics have had a healthy debate over the potential virtues or drawbacks of the holding of Georgia v. Ashcroft. My own view is that the biggest problems with Georgia v. Ashcroft, alas, are its facts and its holding. The facts are a problem because they are unique - a Democratic gerrymander (really egregious by the way) supported by African American elected officials, with control of the state senate at stake, and a denial of preclearance (or really a declaratory judgment) to districts right around the 50% mark that are decreased ever so slightly. The holding is a problem because it cannot possibly be limited to those unique facts and as far as I can tell, allows jurisdictions to choose packing or cracking as a strategy for gerrymandering but merely justify it as creating "control" or "influence" districts. By my read, the decision basically told DOJ to preclear almost any kind of redistricting plan or, alternatively, provided some justification for objecting to almost any kind of redistricting plan. I think this conclusion is bolstered by the behavior of both the political appointees and the line attorneys in the Texas gerrymandering case - both of which have a plausible reading of the decision in my view. Therefore, I think some clarification of the decision was necessary if section 5 was going to keep DOJ in the business of preclearing redistricting plans.

Now the question is whether the Ashcroft-fix fixes Ashcroft and even if so, does it do other kinds of damage. The bill under consideration would prevent "diminishing [minorities'] ability . . . to elect their preferred candidates of choice." One plausible interpretation is that no reductions in minority percentages in current districts will be allowed for the next 25 years, or that this forces the creation or freezing in place of majority-minority districts. I reject that interpretation and do not think it is the intent of the drafters of this law. See my testimony for a fuller discussion of this. More importantly though, I think it is important that DOJ look at this bill as preventing the kind of overconcentration that will likely prove to be the greater threat to minority influence in the coming years as racial polarization declines. (See my testimony on this as well.) It would be a cruel result, indeed, if the new retrogression standard prevented the most common form of Democratic gerrymandering (cracking) but gave its blessing to the most common form of Republican gerrymandering (packing).


V. Constitutional Questions

I recognize why there has been so much discussion of the constitutional questions regarding this bill and the importance of developing the record. But I think I part company with my fellow travelers in these debates in that I just don't think any of this will ultimately matter to Justice Kennedy, who will be the decisive vote. I think he already knows what he is going to do.

In the end, he (and maybe even the Chief Justice) will need to decide whether they feel comfortable striking down THE VOTING RIGHTS ACT, previously the gold standard or point of comparison for the other decisions interpreting the enforcement clauses of the 14th and 15th amendments. If they do strike it down, it will be the most significant law stricken down by the Court at least since the New Deal if not before. (Look for a good named plaintiff that can be converted easily to a verb like - Lochnerizing.) I think this is probably true even if they just say they are striking down the coverage formula, the time period (25 years) or "the ability to elect" standard.

It will be the federalism revolution realized. The other cases concerning the enforcement clauses (Morrison, Garret, Kimel, Florida Prepaid, etc.), commerce clause (Morrison, Lopez), commandeering (Printz, NY v. US), or the various 11th amendment cases are not remotely even in the same league. Of course, none of these other laws have anything approaching the federalism costs that the section 5 regime does either. In the end, I suspect Justice Kennedy will simply need to decide whether he is willing to take the heat, how important the precedent in this area is, and whether the Court wants to overturn a law that will almost be unanimously supported by Congress.

--Nate Persily

Posted by Rick Hasen at 10:07 AM

Hasen: Drafting a Proactive Bailout Measure for VRA Reauthorization

I have explained why I think a "proactive bailout" measure could help sustain the constitutionality of a renewed section 5. I have taken a stab at trying to actually draft language to put this into effect. This is a work in progress; comments very welcome. Here is the proposal:

    Amend section 1973(a)(1)(9) as follows:

    (9) Nothing in this section shall prohibit t
    (a) The Attorney General shall regularly investigate and prepare a list based on such investigations of States and political subdivisions that, in the Attorney General's view, have complied with the requirements of subsection (a)(1) of this section. Beginning in 2007, the Attorney General shall cause to be published in the Federal Register by December 1 of each year a list of complying jurisdictions. The Attorney General shall promptly notify complying jurisdictions of their status and their ability to apply to the district court for bailout from the preclearance provisions of this Act.

    (b) The Attorney General from shall consenting to an entry of judgment if based upon a showing of objective and compelling evidence by the plaintiff, and upon investigation, he is satisfied that the State or political subdivision has complied with the requirements of subsection (a)(1) of this section. Any aggrieved party may as of right intervene at any stage in such action. If the Attorney General consents and no aggrieved party intervenes, the court shall issue a declaratory judgment that the State or political subdivision has complied with the requirements of section (a)(1) of this section.


I also think Congress should tweak the bailout language slightly to deal with the fact that the DOJ objected to certain actions by states that the Supreme Court later said should not have been objected to. So I'd include this amendment as well:
    Amend section 1973(a)(1)(E) as follows:

    (E) the Attorney General has not interposed any objection (that has not been overturned by a final judgment of a court or issued under an interpretation of this Act contrary to Supreme Court precedent) and no declaratory judgment has been denied under section 1973c of this title, with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory under section 1973c of this title, and no such submissions or declaratory judgment actions are pending; and


As I said, this is rough, and I welcome comments to this approach.

Posted by Rick Hasen at 09:37 AM

May 17, 2006

Pitts: We Still Have a President, Right?

To date, everyone's focus has been Congress, Congress, and yet more Congress. Are the votes there to pass an extension? What will the legislation that Congress passes look like? Will Congress create a good enough record to satisfy the Supreme Court's congruence and proportionality review?

Yet the last time I checked, we still have a President and we also still have a Constitution (although after all this wire-tapping stuff, the former statement is probably more accurate than the latter). This being the situation, we should remember that the Constitution requires Congress to present whatever legislation it passes to the President for his signature.

So why worry about the President? After all, he is incredibly weak, with approval ratings hovering around the freezing point. And he vetoes, quite literally, nothing. And he's on record as saying he supports an extension of the Voting Rights Act. Not so fearless prediction: the President will sign whatever Congress sends him.

But what about the President's infamous signing statements? What will the signing statement for the extension, if any, say? Would a signing statement matter as to how Republican Administrations enforce the Act? Would it matter to the Supreme Court's determination of the constitutionality of the Act? Should civil rights groups be lobbying the President regarding the content of his signing statement (or lobbying him not to issue any signing statement at all)? Are they already doing this?

Is any discussion of the President in the context of the extension, truly, academic?

--Mike Pitts

Posted by Rick Hasen at 04:24 PM

May 16, 2006

Hasen: Can "Proactive Bailout" Save VRA Renewal from Constitutional Attack?

In my testimony before the Senate Judiciary Committee last week, I made four recommendations to make the VRA more likely to be upheld against a constitutional challenge that it exceeds Congressional power under the 14th and 15th Amendments. These proposals are aimed to make the law more "congruent and proportional" to a history of intentional state discrimination in the covered jurisdictions. Here were those recommendations:

    I recognize that this is politically difficult, but Congress should update the coverage formula based on data indicating where intentional state discrimination in voting on the basis of race is now a problem or likely to be one in the near future...

    [Second], Congress should take steps to make it easier for covered jurisdictions to bail out from coverage under section 5 upon a showing that the jurisdiction has taken steps to fully enfranchise and include minority voters. The current draft does not touch bail out, and few jurisdictions have bailed out in recent years.

    [Third], Congress should impose a shorter time limit, perhaps 7-10 years, for extension. The bill includes a 25 year extension, and the Court may believe it is beyond congruent and proportional to require, for example, the state of South Carolina to preclear every voting change, no matter how minor, through 2031.

    [Fourth], Congress should more carefully reverse only certain aspects of Georgia v. Ashcroft. Georgia v. Ashcroft makes it easier for covered jurisdictions to obtain preclearance, meaning that the burden on covered jurisdictions is eased (and therefore the law looks more "congruent and proportional"). Reversing the case as a whole, as this bill apparently could do-though the language in this respect is very poorly drafted-could weaken the constitutional case for the bill. I would suggest tweaking, rather than reversing, the Ashcroft standard.

(On top of these changes to strengthen the bill on constitutional grounds, I also suggested ways to make partisan manipulation of the preclearance decision by DOJ less likely.)

I recognize the uphill battle that getting any change to the bill is going to be, and I think that my first suggestion--tinkering with the coverage formula---is perhaps politically impossible (and that's too bad, because that may be fatal to the Roberts' Court's review) at this point. But I do hope that Congress will focus more on the other issues, especially bailout.

Mike McDonald's excellent contribution to The Future of the Voting Rights Act book shows how rare bailout has been. He then writes (pdf 33-34): "It is unknown why more covered jurisdictions have not litigated for their release. The reason may lie either with a too difficult bailout mechanism - particularly the proactive steps a jurisdiction must take to improve minority participation - or a lack of information and resources among covered jurisdictions. If the latter were the reason, more jurisdictions could bail out if they were provided with aid in preparing their bailout litigation."

I'd add to Mike's point another one: an unsuccessful attempt at bailout could cause a jurisdiction to be labeled as racist, a risk that does not exist when one simply applies for preclearance and has no objections from DOJ to preclearance.

My proposal for easing bailout would put the onus on DOJ (or some other entity, if we are worried about partisan manipulation of the process) to review each covered jurisdiction's history, and to proactively take steps to inform jurisdictions that have met the requirements that they may bail out. If DOJ will make these decisions administratively, we might allow community members who disagree with a DOJ decision to grant bailout to appeal the decision to a district court.

How does this help with the constitutional problem? The argument would be that the coverage formula, even back in 1965, was not a perfect way of capturing those jurisdictions with a history of discrimination in voting on the basis of race. But it was a good, rough substitute. Today, as well, because section 5 is such a good deterrent, it is hard to come up with a formula to separate out those jurisdictions that still should be covered from those that have made enough progress. The "proactive bailout mechanism" I am suggesting is tailored to the Court's concern of tying remedies to evidence of discrimination. But rather than using coverage as the "opt in," proactive bailout serves for the opt out.

Proactive bailout (especially if coupled with other measures, such as a shortened time frame for renewal) could save the constitutionality of a renewed section 5. The case would be especially strengthened if DOJ could put proactive bailout into effect for some time period before the Supreme Court would hear a challenge to the constitutionality of a renewed section 5. The government could then show it is making a careful attempt to separate out those jurisdictions who still need to be subject to preclearance from other jurisdictions.

Posted by Rick Hasen at 05:03 PM

May 15, 2006

Charles: No Deal!

Heather Gerken asks whether academics privately believe that the civil rights community ought to reject the proposed amendment to the Voting Rights Act. I don't know what most academics believe privately, but unless we hear something more from the civil rights community other than political expediency, this academic is willing to say publicly that the civil rights community ought to say "no deal."

Heather is right that academics are rarely in a position to understand what legislative compromises are possible. But as she intimates, we can evaluate results; and looking at the results, it is hard to see what the civil rights community is getting in this deal.

Unlike most of my fellow election law scholars, I am less worried about the constitutionality of the proposed amended act. I'll leave that discussion for a later post, but I think that there are relatively strong arguments that can be offered in favor of constitutionality. What concerns me more is the inability to see the payoff in this deal for the civil rights community.

Leaving aside the extension of the language assistance requirements--a real contribution that should not be too controversial--the proposed amendment does essentially three things. First, it extends the preclearance requirement for covered jurisdictions for the next 25 years. Second, it reverses Reno v. Bossier Parrish II. Third, it overturns parts of Georgia v. Ashcroft. None of these proposals holds much promise for substantially improving the positions of voters of color in the political process.

Take first the extension of Section 5. The primary objection to preserving Section 5 in its current form is that the current preclearance mechanism is incapable of responding to the problems that voters of color face in the twenty-first century. Instead of taking a forward-looking approach and thinking about the voting rights challenges for the new millennium, Congress so far appears to be stuck in the last millennium. In the last millennium, we were deeply concerned with precluding the use of intentionally discriminatory electoral devices from state actors. For example we worried that elected officials would use at-large districting schemes to disenfranchise voters of color; would move polling places just so that voters of color won't be able to vote; pack voters of color into districts simply to minimize their voting power, etc. If those are still the types of concerns most relevant to today's voters of color, we should take the deal and do so happily.

But I suspect that these are not the concerns that we worry about for the twenty-first century. Our twenty-first century concerns involve electoral rules and structures that have secondary effects on the electoral prospects of voters of color. (This is not to say that there won't be instances of intentional discrimination, particularly at the local level. But they won't be the modal concerns.) Secondary effects concerns include the design and uniformity of electoral ballots; registration requirements; voter identification requirements; ex-felon disenfranchisement; election administration matters and the like. These issues are not being picked up by Section 5's preclearance mechanism--nor are they capable of being picked up by the current regulatory structure.

In fact, not much is being picked up by Section 5's preclearance mechanism, and that's the fatal problem with a reactive extension of Section 5. Consider the State of South Carolina. South Carolina--a bad actor if there ever was one--was one of the states covered by the 1965 version of the Act. Between 1970 and 1979, the DOJ objected to almost all of the submissions submitted for preclearance from South Carolina. Fast-forward to the new millennium. From 2000-2004 the DOJ objected to nine submissions from South Carolina out of roughly 4800 submissions. That's .0018 of all submissions from South Carolina from 2000-2004. This means that the DOJ is preclearing 99.9% of all submission, and South Carolina is not by any means an outlier.

Some have argued that this high preclearance rate is a consequence of the Court's Bossier II opinion (and thus desire to reverse Bossier II). Bossier II holds that the DOJ must preclear under Section 5 an electoral change that is purposefully discriminatory under Section 2 as long as the electoral change does not make voters of color worse off. However, Bossier II cannot be held responsible for near automatic preclearance of submissions under Section 5. Two reasons are most relevant here.

First, when ones looks at the data it becomes very clear that the DOJ interposed fewer objections starting right after 1995; Bossier II did not come down until 2000. Second, many veterans of the DOJ's Civil Rights Division maintain that there were very few purpose objections that were interposed prior to Bossier II. According to them, Bossier II did not significantly alter prior practice. Make no mistake, Bossier II is a bad opinion. But the problem with Bossier II is the Court's ridiculous contention that Congress intended that the DOJ preclear changes that are clearly purposefully discriminatory. So, the opinion is obnoxious as a symbolic matter and should be reversed. (As a good friend said to me, "The Court deserves to be spanked.") But one should not expect a successful reversal of Bossier II to have much practical effect.

So, that leaves us with the third prong of the holy trinity, reversing Georgia v. Aschcroft. The difficulty with reversing Georgia v. Ashcroft is that the problem is not the opinion but the facts on the ground. The proposed amendment latches on to the phrase "elect preferred candidate of choice." That is, any voting qualification that has the purpose or effect of diminishing the ability of voters of color to "elected their preferred candidates of choice" violates Section 5. But the problem is precisely how one determines who the candidate of choice is.

Is the candidate of choice the candidate emerges after the creation of a majority-minority district where one can be created? Suppose that one cannot be created. Is the state obligated to create coalition districts and would the candidate of choice be the product of that coalition? What happens when white voters coalesce with enough voters of color to produce a Denise Majette over the preference of the majority of Black voters who wanted say Cynthia McKinney type? The problem is that the "candidate of choice" is an endogenous contextual variable that can best be evaluated by, well, examining the totality of the circumstances on the ground. The proposed amendment does not provide any guidance on that very difficult but key question. (Incidentally, this is precisely the reason that the Court in Georgia v. Ashcroft used John Lewis as a proxy for determining the best interest of voters of color.) Indeed, there is no reason to believe that in interpreting the language that purportedly reversed Georgia v. Ashcroft, the Court might end up in the same place with another Georgia v. Ashcroft.

Most of us want better protections for voting rights, especially for voters of color. But this proposed amendment to the VRA might not be it. If this is the deal that the civil rights community is getting, I say "no deal."
--Guy Charles

Posted by Rick Hasen at 10:20 AM

Pitts: The Impact of Ashcroft?

At the slight risk of being a one trick pony, I'd like to toss out another question for discussion related to Georgia v. Ashcroft. One thing that seems like it has gone a bit under the radar screen is the impact of Ashcroft on Section 5 review. How much has Ashcroft changed the nature of Section 5 preclearance? In other words, how many objections has Ashcroft prevented DOJ from interposing? To the best of my knowledge, there hasn't been an attempt to quantify the impact of Ashcroft in any of the testimony presented to Congress so far.

True, it is very difficult to quantify the impact of Ashcroft for a number of reasons. First, DOJ does not explain its preclearance decisions--precelarance letters are basically form letters that do not provide any reason for the decision. Second, Ashcroft is so recent in time, there's not a good basis for assessing the reduction in retrogression objections from a pre-Ashcroft world to a post-Ashcroft world--in contrast, such a quantification can at least be attempted with Bossier Parish II. Third, it's unclear how much of a role Ashcroft can play outside of the statewide redistricting context (i.e., to local redistrictings and to changes that deny minority votes rather than dilute them).

As we do not have information about the role of Ashcroft in preclearance determinations, perhaps the best place to look for the impact of Ashcroft on DOJ's work is objection letters sent since Ashcroft. On that score, it would seem thatAshcroft has not played a very significant role. Perhaps others would disagree, but DOJ does not appear to have made very much use of Ashcroft in its objection letters. For instance, this objection letter makes only a very limited citation to Ashcroft and makes no reference to the "totality of the circumstances" retrogression test created by Ashcroft.

Indeed, on May 5, 2006, DOJ objected to several vote denial type changes enacted by a community college district in Texas. This would appear to be DOJ's first objection in about a year (the next most recent objection posted on its website is from April 25, 2005). The May 5 objection letter makes absolutely no citation to Ashcroft and makes no reference to the totality of the circumstances. Granted, objection letters since Ashcroft have been few and far between and are clearly not something that even approaches the best evidence to determine the role Ashcroft has played.

Yet even if Ashcroft is not being cited all that much by DOJ in its objection letters, it could very well be playing a more intangible role in preclearance decisions, for Ashcroft may have made DOJ career personnel a bit more gun shy. Why? Because when you combine Ashcroft with all the substantive Section 5 losses by DOJ in the past decade, people tend to get the message about the big picture: objections are not exactly favored by the Supreme Court.

Finally, I'm not sure there's been a great deal of discussion as to whether Ashcroft, in some ways, increases the power of DOJ to object. Under Beer, DOJ would not object to a redistricting plan if the plan contained a reduction in the number of influence districts. Unless there was a decrease in the ability to elect, DOJ would not interpose an objection under the Beer retrogression standard. But isn't it possible under one reading of Ashcroft that DOJ can now object when the only harm to minority voters is the loss of influence districts?

--Mike Pitts

Posted by Rick Hasen at 09:16 AM

May 14, 2006

Pitts: Connecting Ashcroft with Bossier II?

First off, thanks to Rick for providing this forum. As Heather and Dan and Rick's posts make clear, this is a most useful venue for thought-provoking discussion. At the moment, though, I'd like to move us away from Dan and Rick and Heather's discussion of the schism between academia and the civil rights community and instead focus on the portion of the extension bill that reverses Georgia v. Ashcroft.

There are certainly plenty of reasons that have been proffered both for and against reversing Ashcroft. Some of these reasons relate to the continuing constitutionality of Section 5, other reasons relate to the great debate over which is better, substantive or descriptive representation, and still other reasons relate to the debate over clear rules versus fuzzy standards (and the closely related possibility that Ashcroft's fuzzy standard allows for more partisanship in DOJ's administration of Section 5).

On this latter point, I'd like to toss out the following intentionally provocative question to think about: If a problem with Ashcroft is that it does not provide a clear rule for DOJ to administer, isn't the lack of a clear rule for DOJ to administer also a reason not to reverse Bossier Parish II? Put differently, isn't unconstitutional discriminatory purpose a murky totality of the circumstances test in the same vein that Ashcroft is a murky totality of the circumstances test?

Of course, there could be some basic distinctions to be made. For instance, one might argue that there is more precedent (both from DOJ objections and federal court decisions) in the realm of unconstitutional discriminatory purpose and that these precedents will serve to cabin discretion by DOJ. One might also argue that the benefits of objecting to changes that are unconstitutionally discriminatory in purpose far outweigh the costs of using a murky standard. Perhaps these distinctions (and there are sure to be others) are ultimately convincing. But, at least at first blush it would appear that the consequence of reversing both Ashcroft and Bossier II is that Section 5 will continue to contain a murky totality of the circumstances standard that could give partisan politicians the ability to act like, well, partisan politicians.

Lest this post be misunderstood, I'd like to make clear that I think it makes sense and is eminently defensible for Congress to reverse Bossier II. I'm merely wondering out loud whether the same argument about clear rules and murky standards that has been used to criticize Ashcroft could apply in the context ofBossier II.

More on Ashcroft to come...

-Mike Pitts

Posted by Rick Hasen at 01:57 PM

May 13, 2006

Hasen: Why Bother Trying to Fix Section 5?

In a thoughtful and provocative post on the VRA renewal debate, Heather Gerken asks a provocative question: "If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good?"

I think there are a few reasons to engage in this debate.

1. Perhaps Heather is closer to the politics than I am, but I am not convinced that the chances of getting at least some improvement on the current bill are nil. It could be, for example, that when Sen. Judiciary Committee chairman Specter hears that many leading academic voices (though certainly not all) have serious questions about both the constitutionality of a renewed section 5 and about the wisdom of certain details of "the deal," he could push for some changes to the bill.

2. The idea that the deal should just go through as is and the country should "roll the dice" on preclearance is riskier than those who support this strategy have let on. The risk is portrayed as merely that section 5 in its current form is struck down, and then Congress goes back and writes a law to meet the Supreme Court's "congruence and proportionality" standard. But there's a bigger risk. The precedent that such a Supreme Court holding could set could endanger the constitutionality of section 2 of the Voting Rights Act as well (a much more important provision of the Act at this point), as well as other civil rights laws. I am quite concerned with what the Roberts Court could do if Congress gives them a beautiful pitch right over home plate. At the very least, people who support the deal should acknowledge the serious risks.

3. As academics---particularly those of us with tenure--we have an opportunity to offer frank analysis that others cannot do. Case in point: I have heard from many people privately in the voting rights community who agree with my analysis of the potential constitutional problems with "the deal" but who do not want to publicly be associated with that position. If we don't speak up, no one will.

4. The sunset provision of section 5 for academics is a great opportunity to take stock and analyze the law, an opportunity that is being lost as "the deal" goes through. Indeed, it would be a good thing if many major pieces of legislation had sunset provisions, so that these debates can go forward. Ideally, this debate should occur in Congress; but if Congress won't do it, we should.

Next week I want to talk in more detail about ways to fix the bill that aren't dealbreakers. In particular, I want to talk about how enhanced proactive bailout could potentially offer a way around the constitutional problems I have raised. I also want to write more about the issue of allowing appeals both from bailout decisions and from regular preclearance decisions.

Posted by Rick Hasen at 09:20 PM

May 11, 2006

Gerken: Deal or No Deal?

Deal or No Deal? - Gerken

I thought I'd offer a quick follow-up on Dan Tokaji's typically thoughtful post. As Dan correctly notes, there's some disagreement between the civil rights community and academics about whether the deal on the table is a good one. To be sure, neither group is monolithic, but virtually all the mainstream civil rights groups seem to have endorsed the deal, whereas there aren't many academics offering full-throated support for the bill in its current form. Indeed, if you privately asked academics the question made popular by NBC's addictively awful show, "Deal or No Deal?", I wonder how many academics would wholeheartedly urge the civil rights community to accept the deal.

There are, however, at least two things inhibiting the type of vigorous debate that Dan rightly points out ought to occur. The first is, believe it or not, modesty. It's not like law professors have a comparative advantage in counting votes and brokering legislative compromises. The danger, of course, is that we become like those annoying "Deal or No Deal" audience members who urge hapless contestants to turn down massive amounts of money for a risky pursuit of the whole jackpot. After all, it is no mean accomplishment in this political climate to persuade Congress to renew the Voting Rights Act some 38 years after its original passage. Not only will Section 5 be renewed in toto, but Congress will prune back two Supreme Court decisions that have caused a great deal of consternation in the civil rights community. Efforts to tinker with the deal might sink it, and the civil rights community could find itself negotiating next year with a much weaker hand than it now holds.

The second reason academics may be reluctant to intervene is that so many of us genuinely believe in the Act, its aspirations, and its accomplishments. If the deal is going to go through regardless of what a few academics think about its merits, why allow the perfect to be the enemy of the good? (I'll spare you the hand wringing on what these choices mean for us in our role as academics). As Dan mentions, I think there is a better way to administer Section 5, a strategy that is constitutionally more defensible and does a better job of protecting minority voters and deploying civil-rights enforcement resources. But I would certainly prefer the current bill to allowing Section 5 to expire.

The last time Section 5 was up for renewal in 1982, the civil rights community faced a similarly difficult choice. During the early part of the process, the deal on the table was far from ideal. At the time, many thought it was as good a deal as they could get with Republicans wielding control in the Senate and Ronald Reagan holding the presidency. There is a story- perhaps apocryphal - of the major players in the civil rights community meeting in a single room to debate whether to accept the deal. Though the majority thought they ought to accept the deal, in the end the civil rights community continued to press the case for tougher standards and persuaded Congress to enact a far stronger Voting Rights Act than existed prior to 1982. The 1982 amendments, coupled with a very helpful decision by Justice Brennan interpreting them, dramatically changed the rules of redistricting and resulted in the election of an unprecedented number of black and Latino candidates during the 1990s.

This may not be 1982 and it may not be possible to do any more for minority voters than the current bill does. At the very least, however, we all should be frank about the deal that is being cut so that the extension of the Voting Rights Act represents the beginning of this conversation, not the end. There is a lot to praise in the current bill. But it's far from perfect, a point that tends to get lost in the press releases and triumphalist rhetoric we've seen in this debate. It does nothing to rein in the increasingly politicized Department of Justice, which has granted several preclearance requests under circumstances that have led many to think that the interests of the GOP, not minority voters, guided the decisions. It leaves in place a creaky, top-down regulatory system that cannot adapt quickly to changing political realities, let alone deal with many of the problems encountered by minority voters in the 2000 and 2004 presidential elections. Most seriously, it requires supporters of the Act to gamble that the coverage formula- the lynchpin of Section 5- will survive Supreme Court review. Political deals always require hard choices, but it would be a shame of all of the energy behind renewal evaporated the moment the bill is passed. The one thing that the academics and practitioners who support the Act ought to agree on is that we shouldn't stop here.

--Heather Gerken, Professor of Law, Yale Law School

Posted by gerkenh at 12:59 PM

Tokaji: Two Perspectives on the Voting Rights Act

I'd first like to thank Professor Hasen for giving me the opportunity to guest-blog on the renewal of the portions of the Voting Rights Act of 1965 (VRA) that expire in 2007. His consistently impressive and tireless work on the Election Law blog was a big part of my inspiration for starting my own Equal Vote blog over two years ago. I'm particularly honored to be participating in a forum that includes such a distinguished group of scholars, from each of whose work I've learned a great deal.

Among the most striking aspects of the discussions of VRA renewal over the past several months is the significant divide that appears to exist between the civil rights and scholarly communities over Section 5 of the VRA. (The language assistance provisions of the VRA contained in Section 203 are also up for renewal, but I'll leave them aside for now.) Section 5 requires certain covered jurisdictions to obtain "preclearance" of electoral changes before they go into effect, from either the U.S. Department of Justice or the U.S. District Court in Washington, DC. Preclearance should be denied if the proposed changes are "retrogressive" -- in a nutshell, if they have the purpose or effect of making racial minorities worse off than they were before.

The divide between civil rights lawyers and election law scholars is evident in Tuesday's testimony before the Senate Judiciary Committee, which Professor Hasen summarized here. Broadly speaking, the civil rights community would preserve Section 5 in its present form, while reversing two decisions that they believe to have weakened the effectiveness of the preclearance process: Georgia v. Ashcroft and Reno v. Bossier Parish II. This would be accomplished by the current version of the bill, and the justification for these changes is ably articulated in the testimony of Laughlin MacDonald of the ACLU and Ted Shaw of the NAACP Legal Defense Fund. Civil rights groups have been reluctant to put other election issues -- such election reforms in areas like provisional voting and voter identification -- into play during the VRA debate.

On the other hand, there is considerable skepticism in among prominent legal scholars over whether Section 5 should be renewed in its present form. Most everyone agrees that Section 5's preclearance requirements have been extraordinarily effective in promoting equality of participation and representation by racial minorities. But a number of commentators, including other guest-bloggers in this forum, have questioned whether Section 5 is well-suited to accomplish these goals in the years to come. Another concern is whether the Supreme Court will uphold the unusual burdens that Section 5 places upon state and local governments, given its "new federalism" cases that sharply limit congressional power to enforce civil rights. These concerns are cogently summarized the testimony of Professor Issacharoff and Professor Hasen. While there is hardly the consensus among legal scholars that exists within the civil rights community, there is considerable sentiment for the view that Section 5 ought to be amended.

What's especially remarkable about this divide is that these civil rights lawyers and legal scholars share most the same ends. Both want to preserve the gains that minority voters have made as a result of Section 5 and other provisions of the VRA. Both want to make sure that the VRA remains effective in stopping new practices that would deny or dilute minority voting strength. And both want to insulate a renewed VRA against constitutional attack, in the near-certain event that Section 5 is reauthorized in some form.

As a legal scholar who was an ACLU lawyer for eight years before entering the academy, I must confess to feeling as though I have a foot in each camp. On one hand, I understand the reluctance of the civil rights community to alter a statute that has, for the most part, served the interests of minority voters extraordinarily well for decades. Without preclearance, there is a real danger that new impediments to equal participation and representation will arise in some parts of the country, especially at the local level. On the other hand, I'm very concerned about whether the preclearance process in its present form will continue to be an effective check on practices that deny or dilute minority votes -- particularly given the increasing evidence of partisanship in the Justice Department, which I've discussed here and here. I'm also worried about whether the current Supreme Court will find a renewed Section 5 to be a "congruent and proportional" remedy for constitutional violations, as the Court's new federalism cases require.

Rather than attempting to resolve this disagreement, it's probably most useful to identify some of the major issues dividing advocates and scholars, along with the major arguments for and against making changes.

The Preclearance Process. Given the dangers of partisan manipulation that exist with the Justice Department's authority to grant or deny preclearance, Congress should seriously consider changes to Section 5's process. I've discussed some of the possible changes here. Among them is one that Professor Gerken has suggested: adopting an "opt-in" approach that would diminish the role of the Justice Department, and replace it with a process designed to encourage negotiation between community groups and covered states and counties. Civil rights groups are worried that they don't have the resources to monitor changes as well as the Justice Department does. As I've discussed in this forthcoming article, I think Professor Gerken's idea is a worthy one, so long as those groups are provided with attorney's fees that they'd need to engage in effective monitoring. I also think Congress should consider creating a new agency for state-level changes, and making decisions to grant preclearance reviewable in federal court.

The Preclearance Standard. Civil rights groups would like to amend Section 5 to reverse the decision in Georgia v. Ashcroft, which upheld a redistricting plan that reduced the number of "safe" minority seats while supposedly creating new minority "influence" districts. Those groups have a point, in noting that the standard for determining when a plan is "retrogressive" is murkier as the result of this case, thus compromising Section 5's administrability. However, as Professor Hasen's testimony points out, reversing Georgia v. Ashcroft entirely would increase the likelihood of the Court throwing out Section 5 on the ground that it isn't "congruent and proportional" to remedying constitutional violations.

Coverage and Bailout. Section 5's geographic scope is limited. It originally targeted southern states, and was subsequently expanded to other places with low registration or turnout and barriers to access. Civil rights advocates point out, correctly in my view, that there are parts of the country -- especially in the South and in Indian country -- where racial minorities are more likely to face barriers to equal representation, especially at the local level. But as Professor Issacharoff's testimony noted, most of Section 5's coverage is based on turnout statistics that are now over four decades old. For this reason, there are strong arguments for revisiting the coverage formula to focus on localities rather than whole states, and for making it easier for covered jurisdictions to "bail out" of coverage. It would also strengthen the case for Section 5's constitutionality, were Congress to take a serious look at the feasability of changing the coverage formula and conditions for bailout.

Beyond Race-Specific Remedies. Some of the most significant voting rights controversies in recent years are not likely to be redressed by a renewed Section 5. Since the 2000 election, the "nuts and bolts" of election administration have attracted unprecedented attention. Professor Pildes thus argues in this forthcoming essay that there are limits to the race-specific approach embodied in Section 5, and that Congress should consider "national, uniform laws to protect the right to vote as such," along the lines of the Help America Vote Act of 2002 (HAVA). But civil rights groups are reluctant to re-open the debate over election reform in the context of VRA renewal. In the current Congress, it's quite possible that introducing these issues could backfire, resulting in laws that actually impede voting rights -- like a more stringent, nationwide photo ID requirement that would have a disparate impact on minority voters. At the same time, Professor Pildes is undoubtedly right that race-specific remedies will probably not be sufficient to protect equal access to the ballot in years to come.

The other participants in this forum will undoubtedly address these and other possible amendments with greater depth and sophistication than I've done here. Each of them raises difficult questions and, as the above comments suggest, my own views are not completely settled. The key point is that Congress should, at the very least, give serious and thoughtful consideration to the above modifications before it renews Section 5. Doing so will not only result in a more efficacious VRA, but will also increase the likelihood of it being upheld in the courts.

- Dan Tokaji

Posted by tokajid at 08:42 AM