Monday, January 12, 2009

Voting Rights at the Roberts Court

Linda Greenhouse published this op-ed piece last week (1/9) in the NYT on Northwest Austin Municipal Utility District v. Mukasey, the case challenging Congress's reauthorization of the Voting Rights Act preclearance procedure now headed for the Supreme Court.  (For more on the case, see Oyez's report On the Docket, the Harvard Law Review summary, and the Election Law @ Moritz collection of documents.  Here's the three-judge district court decision (thanks to Election Law @ Moritz for the link); here's the reauthorization act

Greenhouse argues that this case is "a potentially defining moment" for Chief Justice Roberts.  To say why, she briefly traces the politics of reauthorization of the VRA and the trends on the Court with regard to race-based actions and Congressional authority:

Many Republicans, most notably some Southern senators, thought [reauthorization was inappropriate]. But they allowed the extension to pass on the assumption that the Supreme Court would eventually answer the question, relieving them of the political cost of dismantling an iconic statute. Days after the extension became law, the anticipated legal challenge was filed by a well-connected Texas Republican lawyer representing what is surely one of the most obscure jurisdictions to be covered by Section 5, a sewer district that serves 3,500 residents of Travis County, Tex.

The Republicans understood recent trends at the court to be working in their favor, and they may be right. The case serves up to the court a fascinating brew of two of the most freighted issues in constitutional law, race and federalism — or, to put it another way, individual rights and constitutional structure. . . .

While previously Congress could do almost anything in the name of protecting individual rights, the new doctrine requires it to demonstrate a “congruence and proportionality” between violation and remedy. The appeal now before the court argues that the extension fails that test, given “the utter absence of any present-day pattern of unconstitutional voting-rights deprivations of the type Section 5 was originally designed to address.” The measure’s defenders argue in response that because the law serves to deter just such violations, the Texas sewer district is trying to blame Section 5 for its own success.

And to make things even more interesting, Greenhouse reminds us that Roberts penned legal memos in the Reagan administration arguing against extension of the VRA in 1982.  At his confirmation hearings, Roberts said he was just representing his client's position.

Greenhouse's analysis hits it on the nose.  This case comes at the crossroads of the Court's jurisprudence on race-based remedies and its jurisprudence on Congressional authority--both of which have tightened substantantially in recent years--and against the backdrop of Roberts's memos.

But on the other hand Section 5 is, as Greenhouse writes, "iconic"; its dismantling would be significant (to say the least).  And I'd add that the Court's jurisprudential momentum could also run up against its now-almost-insurmountable hurdle for facial challenges.  (The district court quite properly ruled that the plaintiff's constitutional challenge is facial.)

This piece--and, of course, the case itself--will nicely complement materials on Congressional authority under the Reconstruction Amendments for your structure students.  We'll post more when more happens.

SDS

http://lawprofessors.typepad.com/conlaw/2009/01/voting-rights-a.html

Congressional Authority, Fifteenth Amendment, Fourteenth Amendment, News, Recent Cases, Reconstruction Era Amendments | Permalink

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