May 27, 2008

Pildes on Riley Decision

Rick Pildes sent the following message to the election law listserv, reprinted by permission:

    What is the significance of today's somewhat technical decision from the Supreme Court in the Riley case regarding the Voting Rights Act? In my view, the decision is consistent with the shift in philosophy regarding the VRA that has dominated the Court's decisions consinstently since the early 1990s. That shift reflects greater skepticism from the Court regarding not the core of the VRA, but regarding the boundaries of the special coverage regime under Section 5 of the Act, which singles out certain areas of the country for distinct federal oversight, and
    regarding the creation of safe-minority election districts (not at issue here). More broadly, this shift reflects skepticism about whether parts of the VRA remain as necessary and justifiable in the circumstances of politics today as they did in the first generation of the VRA's existence. Indeed, the single most noteworthy line in the opinion might be from Justice Stevens' dissent, joined by Justice Souter, in which Justice Stevens goes out of his way to assert in the first paragraph that "it may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were." That is a remarkable statement in a dissenting opinion that then goes on to hold the VRA was violated here. Perhaps the statement reflects some of the internal discussion within the Court.

    The decision came down 7-2, which might obscure the significance of the signals the case sends, but note that the Court had to overturn a three-judge court below to reach this conclusion. The lower court believed, with plausible grounds, that two of the Court's major decisions from the 1970s and 1980s required holding that the practice at issue here had to be precleared by the federal government before Alabama could implement it. The Court's decision to distinguish those cases away is one manifestation of the more general shift within the Court from the era in which those cases were decided to the era that began in the 1990s and continues today. In addition, there appears to be some real discomfort (expressed at oral argument as well as in the decision) with the way the VRA has the effect in cases like this one of, in essence, putting state Supreme Courts under federal oversight; while the Court acknowledges that the Act does so, the decision amounts to a major effort on the Supreme Court's part to find that the VRA did not apply to the actions of the state court system at issue. Finally, it is also noteworthy that Justice Stevens' dissent ends in Part IV by reciting the role the Alamba Supreme Court played many years ago in disfranchisement; this is the kind of analysis one would have seen in majority opinions in the 1970s and 1980s. Now that analysis is relegated to a two-person dissenting opinion.

    I have written more broadly about these shifts in the Supreme Court's vision of the VRA since the 1990s in an article titled The Decline of Legally Mandated Minority Representation.

    Richard H. Pildes
    Sudler Family Professor of Constitutional Law
    Co-Director, NYU Center on Law and Security
    NYU School of Law

I am about to leave on my trip so I had not yet looked at the Stevens dissent. I think Rick is absolutely right, and those like me worried about the constitutionality of the renewed section 5 in the NAMUDNO case have more to worry about.

Posted by Rick Hasen at May 27, 2008 09:25 AM