In my recent L.A. Times oped, I wrote about Judge Roberts’ views on the 1982 Voting Rights Act amendments. He strongly opposed efforts to expand the Act to make it easier for members of protected minority groups to prove claims of vote dilution:

In these documents, Roberts wrote that the new Section 2 would “establish a quota system” and “provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” He added that it “would be difficult to conceive of a more drastic alteration of local government affairs.”
Imposing the new Section 2 nationwide, he concluded, would be “not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based.”

I concluded that these views provide a good indication that if Judge Roberts is confirmed to the Supreme Court, he would well cast the deciding vote holding that a reauthorized section 5 goes beyond Congressional power under the Court’s recent federalism jurisprudence. I concluded:

Roberts’ writings, on the other hand [i.e., compared to Justice O’Connor’s vote recently in Tennessee v. Lane], show much more skepticism of congressional power, particularly on voting rights. Because Roberts viewed the “effects” language in Section 2 as an “intrusive interference” that is a “drastic alteration” of American government and “constitutionally suspect,” why would he look charitably on a renewed Section 5?

In an interesting post, Patterico points to language from a Roberts memo endorsing the effects test for section 5 which Patterico claims “contradicts the premise of” my oped by showing Roberts’ views that “an ‘effects test’ made sense for Section 5 but not for Section 2.” (Patterico also suggested that I somehow hid this memo which he says contradicts my premise.)
I wish that Patterico’s views were correct but I don’t believe that they are. On August 2 (the day before my oped appeared), I put up this post with all the documents I relied upon in writing my oped (linking to the documents again on August 3). The language Patterico cites to is all over the documents I posted (see, for example, pdf page 8, of these documents I posted on August 2). These were part of the Attorney General’s talking points for why the Reagan Administration opposed the new section 2.
Before explaining why I don’t think the language cited by Patterico indicates that a Justice Roberts would vote to uphold a renewed section 5, it is worth pointing out that the argument made by Roberts (we already have an effects test in covered jurisdictions) is misleading at best. Consider again the example of Mobile, Alabama that I gave at the beginning of my oped:

At the beginning of the 1980s, African American voters made up about one-third of the electorate of Mobile, Ala. Studies showed clearly that these black voters preferred different candidates than white voters, but the nature of the electoral system in the city
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