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

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