[NOTE: This post has been UPDATED, twice]
Loyala Law School Professor Rick Hasen, who writes the Election Law Blog and is a highly regarded authority on, you guessed it, election law, has an article on SLATE today expressing his concern, even fear, that the Supreme Court may invalidate a key section of the Voting Rights Law.
Tomorrow, he writes,
the last day of the court’s term, the justices will hear a case from an obscure utility district in Texas, Northwest Austin Municipal Utility District No. 1 v. Holder. (The shorthand is NAMUDNO….) At stake is not only the constitutionality of a key provision of the Voting Rights Act but, potentially, the constitutionality of a host of other civil rights laws. These include the requirement for the creation of majority-minority districts in cities and states with large minority populations and the guarantee of language assistance to non-English-speaking voters in jurisdictions with a fair number of them. The NAMUDNO ruling will come just before the next round of redistricting and could have a major effect on who wins in all kinds of races, from obscure utility districts to state houses to Congress.
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.
I hope both the concern and fear are justified, but before discussing the reasons for them it is worth mentioning that we have encountered Prof. Hasen several times before.
In Construing Liberal Construing, Or: Construe You, for example, I discussed his explanation of why the apparently clear language in New Jersey election law specifying that a party can replace one candidate with another “not later than the 51st day before the general election” didn’t really mean “not later than the 51st day before the general election.”
In Liberals vs. Conservatives: It’s A Matter Of Interpretation, we saw Prof. Hasen creatively construe Article Two, Section One, Clause Two of the U.S. Constitution, which says in part that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a number of electors….” As I wrote in that 2004 post,
I find it very curious, … and perhaps revealing, that Prof. Hasen’s rendition of this Article II requirement is that it “allows each state legislature to set the rules under which electors are chosen and allocated” (emphasis added). Allows? This is rather like saying that Article I allows Congress to exercise legislative powers, and allows it to consist of a Senate and House.
With this background it will come as no surprise that Prof. Hasen begins his current SLATE article on what might described, charitably, as a highly partisan note:
Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws.
To disagree with the liberal version of voting rights, in short, is to be unfriendly to voting rights; to disagree with the liberal version of campaign finance reform (otherwise known as limiting political speech) is to be unreasonable. With Prof. Hasen’s general orientation in mind, let us look at some of his concerns about what the Supremes might do to the Voting Rights Act, and why.
First, the “new federalism” rulings of the Rehnquist Court, beginning in 1997 when it struck down the Violence Against Women Act, has held, Hasen writes, “that when Congress passes laws regulating unconstitutional conduct by the states, it has to come up with specific evidence that the states are violating the Constitution.” One can readily see why that unbearably high standard — imagine: requiring that Congress have evidence that states are violating the Constitution before it is allowed to to regulate their unconstitutional conduct! — might prove objectionable to liberals who assume as an article of faith that states are doing today what they did in 1965. As Hasen writes,
The problem with Section 5 of the Voting Rights Act is that it has been so successful that there’s little ongoing evidence that states are engaging in unconstitutional discrimination. New forms of race-based barriers to voting are more subtle….
Again, I can easily see how that success, combined with an insistence on actual evidence of constitutional violations, is a “problem” for Hasen et. al.
And then there’s the problem of Chief Justice Roberts himself, who remarked in a 2006 Texas redistricting case that it is “a sordid business, this divvying us up by race” and, as Hasen laments, “Justices Alito, Thomas, and Scalia have all lined up on the same side.”
But wait. It gets worse! Not only is there an apparently solid conservative block on the Court that finds fault with “divvying us up by race” (what a sad comment on liberalism that this is now a conservative hallmark!), but even the liberals may be beginning to suspect that times have changed. “More surprisingly, perhaps,” Hasen mourns,
even Justices Stevens and Souter may not vote to uphold Section 5. In a Section 5 case the court decided last year, the two issued an opinion stating that “it may well be true that today [Section 5] is maintaining strict federal controls that are not as necessary or appropriate as they once were.”
Change, at least the sort of change surrounding the problem the Voting Rights Act was intended to (and did) correct, is quite disconcerting to liberals. To wit:
…. As the law’s challengers point out, the formula describing which jurisdictions are covered by the law is now based on 40-year-old data. And, of course, the election of the first African-American president is being touted by Section 5 opponents as evidence that race is no longer a problem in American elections. (To the contrary, a group of political scientists has shown that whites in jurisdictions covered by the Voting Rights Act were less likely to support Obama last November than whites elsewhere.)….
Why, liberals ask nervously, would we conclude that a provision that requires federal regulation of decisions as minute as moving a polling place across the street might no longer be needed just because the conditions that gave rise to it 45 years ago no longer obtain? How could anyone think that the election of a black president means blacks could be elected president?
Those political scientists may believe that they have “shown” continuing racism in need of federal intrusion by pointing to evidence “that whites in jurisdictions covered by the Voting Rights Act were less likely to support Obama last November than whites elsewhere,” but it may be that those whites voted against Obama precisely because they object to the federal intrusion that they predicted, accurately, would follow in the wake of his election. The Voting Rights Act, in short, may have become the problem it was meant to solve.
UPDATE [29 April]
I love irony, almost as much as I detest hypocrisy, and enjoy pointing them both out. On a couple of occasions (Partisan Hypocrisy and Partisan
GKerrymandering And Racial Hypocrisy) I have already discussed the hypocrisy, of both parties, regarding the Voting Rights Act, especially regarding the “majority minority” districts that are thought to be required by Section 5. So this post will address a large dose of irony at the core of the debate that raged in the Supreme Court this morning over the fate of Section 5 of the Voting Rights Act.
The Voting Rights Act of 1965 was intended to eradicate racial discrimination in voting. “States rights” had long provided a protective political thicket in which discriminatory acts by state and local officials could flourish, uninterrupted by federal intervention. To protect voting rights some the worst and most oppressive growths of that political thicket had to be chopped down, and they were — by the “pre-clearance” provisions of Section 5. In order to make any changes in voting procedures or arrangements the 16 “covered” jurisdictions — primarily in the South, but a few counties outside as well — had to secure permission from the Justice Department.
By all accounts the Voting Rights Act worked. Blacks in the South vote in large numbers, and they are well-represented in state legislatures, county commissions, and mayors’ offices across the South today. But the original 16 “covered” jurisdictions are still covered, still must seek permission for any electoral changes, even though jurisdictions with now much worse records of enforcing voting rights are free to make changes without going to Washington for permission.
As David Savage writes in his report of the oral argument in the Los Angeles Times today,
[t]he fate of a key provision of the Voting Rights Act looked to be in doubt Wednesday as Supreme Court justices questioned whether the Southern states still need special supervision to prevent them from discriminating against black voters.
“Are Southerners more likely to discriminate than Northerners?” asked a skeptical Chief Justice John G. Roberts Jr.
Is the “sovereignty of Georgia” entitled to less respect than “the sovereign dignity of Ohio? . . . Does the United States take that position today?” asked Justice Anthony M. Kennedy, pressing a lawyer for the Justice Department who was defending the Voting Rights Act.
The comments and questions during an hourlong argument suggested a majority of the justices are prepared to strike down Section 5 of the Voting Rights Act. This provision requires many Southern states, counties and school districts to get approval from the Justice Department before making changes in their election rules. These rules range from the location of polling places to the makeup of districts in state legislatures….
The provision also applies to a few counties in Northern California, New York and elsewhere that have a high percentage of residents who do not speak English.
The question before the Supreme Court was whether this special Southern-only “pre-clearance” provision was still needed. “Why didn’t [Congress] extend Section 5 to the entire country?” asked Justice Samuel A. Alito Jr.
Like Roberts and Kennedy, he voiced doubt over whether Congress had sufficient reason in 2006 for singling out the South for special supervision for another 25 years. In the past, Justices Antonin Scalia and Clarence Thomas also have voiced skepticism about the reach of this provision….
Roberts noted that Massachusetts had a lower rate of registering Latino voters than Texas. “Why didn’t Congress extend the act to Massachusetts?” he asked.
Similarly, Richard Pildes, a New York University law professor who states that he “would not want to see Section 5 expire altogether,” writes in the New York Times today that Section 5
does something unique in American history. It singles out some states and prohibits them from making any change in their voting systems without federal approval. So if North Carolina (which is covered) wants to move up its presidential primary, it can’t without federal approval. If Arkansas (which is not covered) wants to do the same, it can. Or if Alabama (covered) wants to shift from elected judges to appointed judges, it must get federal approval. If Ohio (not covered) wants to the same, it can.
Thus the irony: if Section 5 is struck down, as today’s oral argument suggests that it may be, it will be because of this continuing discrimination — not against blacks, which has been largely eradicated, but against states.
UPDATE II [29 April]
The transcript of the oral argument can be found here.