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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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?

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

"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.

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.)

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.

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?

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.

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

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 succ