Assuming the reports of Justice Souter’s expected retirement at the end of the term are true, there will be much time later to reflect on Justice Souter’s important election law decisions, from his dissent in Bush v. Gore, to his views on racial and partisan gerrymandering, to his important decisions under the Voting Rights Act. (Indeed, it could well be that his final decision on the Court will be a dissent in a decision striking down section 5 of the Act as unconstitutional). I’ve even written an entire article on Justice Souter’s important campaign finance jurisprudence, and his views of political equality and political money.
But my first thoughts are about the Senate confirmation process for his successor, and the uncertainty that now arises with Senator Specter’s changing of parties. Senator Specter has been the ranking minority member of the Senate Judiciary Committee, and with his change to a Democrat, it could be Senator Grassley or someone else who takes as ranking minority member. This can affect both timing and who President Obama might choose.
On timing, it is going to take some time for the new ranking member to set things up. There could be delays in getting the vetting process open, and Democrats will be hard pressed to rush the process given that it is Specter’s departure that caused the delay. Of course, the more controversial the candidate, the more time Republicans are likely to take. (The resolution of the Franken-Coleman matter could also play into things.) But it is not a given that, even if the President nominates someone promptly, that the person will be seated the first Monday in October.
There’s another connection between Justice Souter and Senator Specter as well. Both were Northeastern liberal Republicans. Just as Senator Specter leaves the party, Justice Souter does so too, in his own way, not following a common tradition of Justices who try to retire during the term of a President of the same party who appointed the Justice. Justice Souter is one of the most liberal members of the Court; he likely feels no more at home in the Republican party now than Senator Specter.
Here. Check out what Trey Grayson’s been up to.
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?
It is now available, including a Director’s Note remembering John Gideon.
Ciara Torres-Spelliscy connects the dots.
You can find the brief here. I have now had a chance to give the brief a very quick first read, and I’m ready to offer some tentative thoughts (subject to revision as I study the brief more closely in the coming days). Here’s the headline: Coleman’s appellate arguments are the ones I anticipated when I read the trial court’s decision. I continue to believe his equal protection argument is unlikely to be accepted by the Minnesota Supreme Court, but his arguments are not frivolous and will require careful attention from the Minnesota Supreme Court.
Here are some more detailed observations:
1. Coleman devotes virtually his entire brief to a single argument: it is a constitutional denial of equal protection and due process for Franken to be elected under a procedure that treated some absentee ballots under a looser “substantial compliance” standard and other ballots, during the election contest itself, under a tougher “strict compliance” standard. Coleman lays out three possible remedies to these purported violations: count more absentee ballots under the looser “substantial compliance” standard, throw out ballots that benefitted Franken under a uniform “strict compliance” standard, or declare there is no winner and require a new election. (He also makes a half-hearted argument for proportionate reduction, though it is not clear how that helps him.) Coleman emphasizes the first of these remedies.
2. Part of the reason that Coleman’s battle is so uphill is that there are some important precedents and statutes against him. There are Minnesota precedents followed by the trial court holding that absentee voting is a privilege and not a right, and therefore the usual “substantial compliance” rule applied to Minnesota election statutes does not apply; there are precedents saying that failure to object to absentee ballots before they are counted waives any objections (a variation on my laches point, given that once an absentee ballot is counted, it can’t be taken out of the count because no one knows who the voter chose); and the Minnesota contest statutes do not allow for the remedy of a new election. (If that latter remedy is imposed, it will have to be as a matter of constitutional law.)
3. Though Coleman tries valiantly to distinguish precedents, he’s got a harder battle not only because arguing for a change of law is hard: if the court changes any of these laws now, it offers Franken an equal protection argument under Roe v. Alabama (as I’ve explained). Coleman tries to rely on Roe, but it seems to me that the trial court followed, rather than changed, existing law, making Roe inapposite for Coleman’s argument.
4. I have a lot of sympathy for Coleman’s argument for a substantial compliance standard for absentee ballots, for reasons I’ve explained in this forthcoming paper. I’d love to see the Minnesota Supreme Court prospectively change the rule, so that it matches the majority of other states, in treating absentee voting as a right and not a privilege, and therefore applying the “substantial compliance” rule to absentee ballots statutes as well. But the court cannot do so now, in the middle of the election, without giving Franken the due process argument from Roe.
5. The problem with the local deviations point that Coleman raises, is the laches point: “To the extent that different boards have different policies and standards for deciding which ballots are entitled to be counted under the state absentee ballot statutes, that’s an issue that could (and in my view, usually must) be dealt with before an election (or before absentee ballots are considered for counting) rather than after. To allow the claim after gives an election contestant an impermissible option: if the count favors me, don’t raise the potential problem. If it works against me, raise it later. To avoid post-election litigation, I’ve suggested courts should be open to challenge these problems pre-election, and bar such claims after the election as too late (under the doctrine of laches). If that is right, any deviation in local policies, while potentially an enjoinable equal protection violation before the election under Ned’s theory, cannot be the basis for a post-election remedy.”
6. To the extent Coleman focuses on the argument that more ballots should be counted, does he have any evidence he can offer (perhaps from where those ballots come from) that the counting of such ballots will make up the 315 vote benefit of Franken? Has anyone tried to do such a calculation?
7. I cannot offer any opinion as to whether Coleman’s brief accurately sets out the facts. I just have not followed this case closely enough to know whether the Franken team will be able to argue with the local variations as described in Coleman’s opening brief.
That’s more certainty than I am able to muster.
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.
Today’s Star-Tribune story reminds us that Coleman’s brief is due today in the Minnesota Supreme Court. At this point, the posturing will take a back seat to legal analysis of the arguments raised in the brief.
When the brief is posted I’ll link, and after I’ve read it I’ll provide some analysis. My guess is that it does not come in until the end of the day.
Roll Call reports today that tomorrow there will be three open seats on the FEC (McGahn, Walther, and Weintraub), which Senator Obama can fill. I believe we need a fundamental rethinking of the FEC’s structure and purpose, especially given the proliferation of 3-3 ties on party lines that I’ve been chronicling for the last few months. (There was another 3-3 split recently announced, involving a 501(c) organization).
I know that the Obama transition team had Mark Alexander (and perhaps Spencer Overton) looking into the question of the FEC’s future. It will be interesting to see what happens.
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)
National Law Journal
Text and History
Adam Cox sends along the following guest post:
The NAMUDNO argument did not go well for defenders of the Act. As Heather Gerken, Ellen Katz, and others have pointed out, the Justices spent a tremendous amount of time asking for comparative evidence–that is, evidence that intentional discrimination is a more significant problem in covered than non-covered jurisdictions. Neal Katyal tried hard to resist this approach, arguing that the Court should ask only whether things are bad enough in Texas to warrant Section 5’s coverage there. But time and again Justice Kennedy said that he was worried that Congress didn’t do enough to compare voting practices in covered with non-covered areas.
The demand for comparative evidence reflects a basic mistake that several folks have pointed out on the listserv. If Texas doesn’t look so bad relative to other states, there’s no way to know whether that’s because discrimination isn’t a problem in Texas, or instead because discrimination is a problem but Section 5 is an effective deterrent.
Even if we put aside that problem, however, both the Court and the lawyers repeatedly got the comparative evidence plain wrong during argument. More than half a dozen times, data from Section 2 lawsuits were cited as comparative evidence showing that discrimination is worse in covered than uncovered jurisdictions. Counsel for the intervenors said that these lawsuits were the “best evidence” that things were worse in the covered jurisdictions, and Justices Souter, Breyer, and Ginsburg relied repeatedly on these data as important empirical support for the Act. The problem is that the data from these lawsuits simply do not support the conclusion that discrimination is worse in covered than uncovered jurisdictions.
The Section 2 lawsuit data discussed during the argument were part of a report submitted to Congress. That report argued that the data demonstrated higher levels of discrimination in the south because, from 1982 to 2005, the success rate of section 2 suits in covered jurisdictions was higher than the success rate of litigation outside covered areas. But as Tom Miles and I have explained here on Rick’s blog, in a Columbia Law Review article, and in a colloquy with Ellen Katz, who authored the original report, the data do not support any comparative claims about the South.
I won’t retrace all of our discussion here, but I think it’s important just to note the three central reasons why the data can’t do the work that the lawyers or the Court might want them to do. First, while a summary comparison of lawsuits in covered and uncovered jurisdictions does suggest a disparity in success rates across covered and uncovered jurisdictions, this difference disappears when we run regressions to control for factors other than coverage itself. In other words, once we control for other variables (including, importantly, the identity of the judges), there is no statistically significant difference between success rates in covered and uncovered jurisdictions.
Second, and most fundamentally, it is a mistake to interpret differences in litigation success rates across jurisdictions as evidence of differences in the underlying levels of discrimination. The central methodological difficulty with drawing inferences about the extent of discrimination from litigated Section 2 cases is that the sample of cases is almost surely not representative of the entire class of voting rights claims. This is a problem that is so pervasive that it has a label among empirical scholars–it is known as the “Priest-Klein” problem. And fancy monikers aside, it is the intuitive reason why no one thinks that the success rates in tort lawsuits in Illinois are a solid source of information about the level of tortious conduct in the state, and why no one thinks that conviction rates in criminal cases in New York are a meaningful measure of the state’s crime level.
Third, even if we ignore these selection problems, the data quoted at oral argument are problematic because they mask a trend. The Section 2 study surveyed a two decade period and identified a difference between covered and uncovered jurisdictions over that period. But an average difference over two decades does not fit the conclusion that a difference justifying Section 5’s reauthorization remains today. And, in fact, the Section 2 data reveal that success rates in covered and uncovered jurisdictions have converged over time. In the 1980s and early 1990s, courts in covered jurisdictions were indeed more likely to find liability than courts in uncovered areas. But from 1994 to the end of the study in 2004, plaintiff success rates were nearly identical in covered and uncovered areas.
Tom and I do not believe that the convergence of success rates in recent years means that discrimination is no worse today in covered than uncovered jurisdictions. As we have emphasized repeatedly in our work, the success rates in Section 2 litigation are simply not a good measure of discrimination. Accordingly, our analysis should not be used to suggest that things are no worse today in the south than anywhere else. Conversely, however, the data discussed during the argument are not evidence of the opposite; they cannot provide the comparative evidence that things are still worse in covered jurisdictions. Much as the Court might like them to, these data can’t help resolve the question of Section 5’s validity.
UPDATE: Ellen Katz sends along the following response:
Adam Cox’s post repeats a series of claims to which I have already repeatedly responded, both on this blog and elsewhere. See here , here, and here.