Thursday, November 27, 2008
The Solicitor General filed a motion to affirm a three-judge district court's ruling that appellant Northwest Austin Municipal Utility District was ineligible to bailout of Section 5's preclearance requirements under the VRA and that Congress had authority to reauthorize Section 5. SCOTUSblog has the motion here, analysis here; Election Law @ Moritz has all the lower court filings here. (Thanks to both.) The 2006 reauthorization act is here.
On the constitutional question--whether Congress had authority to reauthorize Section 5 of the VRA under the Fourteenth and Fifteenth Amendments--the SG argued that Congress had authority both because Section 5 is "proportional and congruent" to the discrimination it found (under City of Boerne v. Flores) and because Section 5 is a "rational means to effectuate the constitutional prohibition of racial discrimination in voting" (under South Carolina v. Katzenbach). Thus the Court need not decide which standard--"proportionality and congruence" or "rational basis"--applies. The SG:
Based on its meticulous review of the factual record, the three-judge district court correctly held that, under either Katzenbach or the City of Boerne standard, the reauthorization of Section 5 was a permissible exercise of Congress's authority under the Fifteenth Amendment and therefore is constitutional on its face. Appellant argues that this Court should grant plenary review to clarify which of those legal standards courts should use in evaluating Congress's exercise of its Fifteenth Amendment authority. That issue does not warrant this Court's review here, however, because the three-judge district court correctly determined that the reauthorization of Section 5 was constitutional under [either standard].
A good part of the motion argues that the legislative record fails to support the reauthorization, against appellant's claims to the contrary. For example, appellant argues that Section 5 was originally designed to prevent "gamesmanship," whereby covered jurisdictions used changes in voting practices to evade judgments invalidating earlier practices, and that the legislative record on reauthorization failed to show that gamesmanship was a continuing problem. But the SG argues that, while some jurisdictions engaged in gamesmanship, gamesmanship was "only one aspect of the larger failure of traditional legislative bans on discrimination in voting," and that Section 5 preclearance procedures were prompted by the "cumbersome nature of case-by-case adjudication of voting cases." "In other words, the propensity of some States covered by Section 5 to engage in teh type of gamesmanship described was only one aspect of the larger failure of traditional legislative bans on discrimination in voting." Moreover, the lack of gamesmanship in the legislative findings only "demonstrates that Section 5 has been doing its job."
This kind of argument--focusing on the specific material in the legislative record and holding it up against the particular provisions of the VRA reauthorization--dominates the SG brief, suggesting that the SG anticipates some scrutiny by the Court of the legislative record. Check out pages 12 to 22 of the motion for more.
The SG also argues that the "limiting features" of the reauthorized VRA ensure its "proportionality and congruence" to the evil it seeks to address. But these tailoring provisions have withstood judicial scrutiny in the past. Check out pages 22 to 32 of the motion for more.
We'll keep an eye on the case for you.