Constitutional Law Prof Blog

Candidate Has Standing to Challenge Section 5

A three-judge panel of the D.C. Circuit ruled on Friday that a political candidate has standing to lodge a facial challenge against Congress's authority to reauthorize Section 5 of the Voting Rights Act--the preclearance requirement that has become a target in litigation since Congress reauthorized it in 2006.

The case, LaRoque v. Holder, grows out of a citizen referendum in Kinston, North Carolina, that changed city elections from partisan to nonpartisan.  Kinston lies within a jurisdiction covered by Section 5 of the VRA, so the city council had to gain Justice Department preclearance before implementing the referendum.  DOJ declined to preclear, concluding that "[r]emoving the partisan cue in municipal elections [would], in all likelihood, eleminate the single factor that allows black candidates to be elected to office."  The city council declined to seek de novo review of the referendum by a three-judge district court, thereby effectively nullifying it.

Several Kinston residents, including John Nix, a resident who declared his candidacy for city council in the 2011 elections, sued, lodging a facial challenge against Congress's authority under the Fourteenth and Fifteenth Amendments to reauthorize Section 5. 

Nix, the subject of the court's standing analysis, is a registered Republican, but prefers to run in the referendum-approved nonpartisan election, because, he says, it'll make it cheaper and easier for him to run, and he's more likely to win.  The district court dismissed for lack of standing.

The D.C. Circuit reversed.  It ruled that Nix alleged sufficiently concrete and particularized injuries (that the partisan election will make it tougher for him to get on the ballot and less likely that he'll win), sufficient causation (because the city council's decision not to implement the referendum was the result of DOJ's enforcement of Section 5), and sufficient redressability (because a ruling that Section 5 exceeds congressional authority would allow the city council to implement the referendum).

The court also ruled that Nix had prudential standing, citing the Supreme Court's recent decision Bond v. United States and ruling that Nix isn't precluded from suing just because he "challenge[d] a law that he claims 'upset[s] the constitutional balance between the National Government and the States.'"  Op. at 24.

The court remanded the case to the district court to consider the merits of Nix's claim--whether reauthorization of Section 5 exceeds congressional authority, an issue the Supreme Court dodged in its 2009 ruling, Northwest Austin Municipal Utility District Number One v. Holder, but has remained an issue in litigation since.

SDS

Facial Challenge to VRA to be Decided on Summary Judgment

Judge Bates of the Federal District Court for the District of Columbia today ruled that a facial challenge to the Voting Rights Act may be decided on the pleadings and ordered the government to respond to the plaintiff's motion for summary judgment.

The case, Shelby County v. Holder involves a facial challenge to Sections 4(b) and 5 (preclearance) of the VRA.  Soon after filing the complaint, Shelby County moved for summary judgment.  The government asked the court to deny the motion as premature or to order discovery.  Judge Bates declined and ordered the government instead to respond to Shelby County's motion.

In so ruling, Judges Bates concluded that the only relevant evidence in the case is the 2006 legislative record--the actual evidence of contemporary discrimination in voting that Congress considered when it reauthorized Section 5 preclearance for another 25 years.  Judge Bates:

[A]t oral argument, the Court asked if any counsel--who collectively have a very broad experience--could identify a case in which the Supreme Court decided the facial constitutionality of an act of Congress based on facts unique to the specific plaintiff bringing the lawsuit.  None could.  Yet that is the discovery the government and defendant-intervenors seek here. . . .  [T]he constitutionality of the VRA must rise or fall on the record that Congress created when it extended that act in 2006.

The government had argued that it needed discovery to determine whether to challenge the plaintiff's standing, whether the plaintiff might bail out of the Section 5 preclearance requirement, and whether the VRA was unconstitutional.  Judge Bates ruled that none of these reasons required discovery.

Shelby County is one of the facial challenges to VRA preclearance in the wake of the Supreme Court's 2009 ruling in Northwest Austin Municipal Utility District v. Holder.  In that case, the Court declined to reach the constitutional question (although it was quite skeptical of that current conditions could justify preclearance); instead it ruled that the District qualified for bailout under the VRA.

Judge Bates ordered the government to file its response to Shelby County's motion for summary judgment by November 15.

SDS

DOJ to Defend VRA Section 5 "Vigorously"

AAG Tom Perez told the Senate Judiciary Committee this morning that the Civil Rights Division is gearing up for the increased Voting Rights Act workload after the Census and is prepared to defend Section 5, the preclearance provision, "vigorously" against a suit filed earlier this month.

That case grows out of DOJ's denial of preclearance to the City of Kinston, North Carolina, to its requested change from partisan to non-partisan elections for mayor and city council.  Kinston is comprised of about 60% black residents, but black persons constituted a minority of voters in three recent city elections and a bare majority in a fourth recent election.  Sixty-four percent of Kinston voters approved the change from partisan to non-partisan voting; the referendum passed in 5 of the 7 precincts where blacks are a majority.

The DOJ denied preclearance, and the City declined to appeal.  The case was filed by the Center for Individual Rights on behalf of several voters and local politicians.

DOJ denied preclearance because of the likely impact on black persons' ability to elect candidates of their choice:

Black voters have had limited success in electing candidates of choice during recent municipal elections.  The success that they have achieved has resulted from cohesive support for candidates during the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election.  It is the partisan makeup of the general electorate that results in enough white cross-over to allow the black community to elect a candidate of choice.

This small, but critical, amount of white crossover votes results from the party affiliation of black-preferred candidates, most if not all of whom have been black.  Numerous elected municipal and county officials confirm the results of our statistical analyses that a majority of white Democrats support white Republicans over black Democrats in Kinston city elections.  At the same time, they also acknowledged that a small group of white Democrats maintain strong party allegiance and will continue to vote along party lines, regardless of the race of the candidate.  Many of these white crossover voters are simply using straight-ticket voting.  As a result, while the racial identity of the candidate greatly diminishes the supportive effect of the partisan cue, it does not totally eliminate it.

It follows, therefore, that the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice. . . .

The change to nonpartisan elections would also likely eliminate the party's campaign support and other assistance that is provided to black candidates because it eliminates the party's role in the election. . . .

Plaintiffs in the case argue that Section 5 is unconstitutional and that it violates equal protection principles.  From the complaint:

21. In July 2006, Congress reauthorized Section 5, extending it for twenty-five years (until 2031).  It relied on generalized findings which do not specifically identify evidence of continuing intentional discrimination in covered jurisdictions.  Nor did it have evidence that adequately distinguished conditions in covered jurisdictions from those in non-covered jurisdictions in a way that would justify the continuing difference in treatment for another 25 years.

22. The conditions of 1964 that caused Lenoir County [the home of Kinston] to be covered by Section 5 have long been remedied. . . .

The case puts the constitutionality of Section 5 squarely before the court.  It avoids Section 5 bailout, which allowed the Supreme Court last term in Northwest Austin to dodge the constitutional question and rule on statutory grounds that the municipal utility district qualified for bailout.  The complaint also draws on dicta from Northwest Austin critical of Section 5, anticipating the arguments should the case reach the high court.

SDS

Lincoln's Constitution Seminar

Designed for graduate students and junior faculty in history, political science, law and related disciplines, the New York Historical Society (in NYC)  will be hosting the seminar Lincoln’s Constitution on Thursday afternoons from 1:00 to 3:00 p.m, on September 17 and 24 and on October 1, 15, 22, and 29, 2009.
The seminar will be taught by  Akhil Reed Amar (Yale College and Yale Law School) and James Oakes (CUNY Graduate Center), who is the author of The Radical and the Republican: Frederick
Douglass, Abraham Lincoln and the Triumph of Antislavery Politics, as well as The Ruling Race: A History of American Slaveholders.

The deadline to apply is August 30.  More information here.

There will also be an exhibit "Lincoln and New York" beginning October 9.

RR

Supreme Court on Voting Rights Act - Northwest Utilities v. Holder: Analysis

The United States Supreme Court has decided  Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, opinion as pdf here reversing the district judge.  However, the Court, in a 8-1 opinion authored by CJ Roberts does not hold section 5 of the Voting Rights Act unconstitutional (as some had anticipated).   Instead, the Court engaged in statutory interpretation to hold that "all political subdivisions—not only those described in §14(c)(2)—are eligible to file a bailout suit."  (Opinion at 16).

However, in its relatively brief opinion (about 16 pages), the Court had much to say about the Voting Rights Act and the Court's own role.  First, the Court made it clear that while it was "undeniable" that §5 of the Voting Rights Act had produced "historic accomplishments," the section "imposes substantial federalism costs" in terms of federal intervention, especially given that states are not treated equally ("preclearance requirements in one State would be unconstitutional in another").  The Court then stated it was "keenly mindful" of its "institutional role" balancing its respect for Congress as a coequal branch of government with the Court's duty as the bulwark of a limited constitution against legislative encroachments (citing The Federalist). 

Justice Thomas dissenting in part based upon his argument that the Court should have reached the constitutional issue.  The Court's opinion specifically addressed that position with citations to the lower court, the briefs, and oral argument:

The district expressly describes its constitutional challenge to §5 as being “in the alternative” to its statutory argument.  See Brief for Appellant 64 (“[T]he Court should reverse the judgment of the district court and render judgment that the district is entitled to use the bailout procedure or, in the alternative, that §5 cannot be constitutionally applied to the district”).  The district’s counsel confirmed this at oral argument.  See Tr. of Oral Arg. 14 (“[Question:] [D]o you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point? [Answer:] I do acknowledge that”).

Opinion at 10-11.

In sum, this is a narrow opinion on a statutory basis, not likely to change Voting Rights Act litigation in any substantial manner, and not likely to change the syllabus in constitutional law courses.

RR

Voting Rights Case - ANALYSIS of Oral Argument

The Court held oral argument today in Northwest Austin Municipal Util. District 1 v. Holder, in which one of the two issues is the constitutionality of the Voting Rights Act of 1965:

Whether, under the Court's consistent jurisprudence requiring that remedial legislation be congruent and proportional to substantive constitutional guarantees, the 2006 enactment of the §5 preclearance requirement can be applied as a valid exercise of Congress's remedial powers under the Reconstruction Amendments when that enactment was founded on a congressional record demonstrating no evidence of a persisting pattern of attempts to evade court enforcement of voting rights guarantees in jurisdictions covered only on the basis of data 35 or more years old, or even when considered under a purportedly less stringent rational-basis standard.

In the oral argument, transcript here, there was much discussion about the Congressional evidence, about whether or not "things" have changed in terms of race relations, and about geographic distinctions.

Near the beginning of the argument, Justice Souter responded to Gregory Coleman, arguing for the Appellant utility district:

SOUTER:  Your argument is largely based on the assumption that things have significantly changed and that therefore Congress could not by whatever test we use extend the -- extend section 5. But what we've got in the record in front of us -- I don't have a laundry list to read, but I mean, we've got I think at the present time a 6-point -- a 16-point registration difference on Hispanic and non-Hispanic white voters in Texas. We've got a record
of some 600 interpositions by the -- by the Justice Department on section 5 proceedings, section 5 objections, over a period of about 20 years. We got a record that about two-thirds of them were based on the Justice Department's view that it was intentional discrimination. We've got something like 600 section 2 lawsuits over the same period of time. The point that I'm getting at is I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that
they have radically changed to the point that this becomes an unconstitutional section 5 exercise within Congress's judgment just seems to me to -- to deny the empirical reality.

Transcript at 15-16.   A bit later, Coleman addresses the flaws in the Congressional fact-finding by pointing to the distinctions between jurisdictions: "What Congress didn't do," he argued, "is look at specific noncovered jurisdictions" and compare them to covered jurisdictions.

Neal K. Katyal, Deputy Solicitor General, argued that the Congressional process was a model:

Congress's reauthorization in 2006 was the paradigmatic attempt of what to do in Congress. It didn't redefine a rate, nor did it cast aspersions at Supreme Court doctrine. Rather, it took that doctrine seriously, both this Court's teachings with respect to the Voting Rights Act specifically, as well as the -- as the scope of the Congress's Reconstruction enforcement powers, and arrived at a considered judgment. After 16,000 pages of testimony, 21 different hearings over 10 months, Congress looked at the evidence and determined that their work was not done.

Transcript at 27.  Coleman had quite a different portrait of Congressional action, stating, in a response to Justice Ginsburg that "it is important for the Court to understand and to consider the fact that Congress really thumbed its nose at the Court in terms of rejecting the constitutional concerns that the Court raised" in previous cases.  Transcript at 64.  

Most Court observers, ConLawProfs, and Con Law students predict that Justice Kennedy will be the deciding Justice, so his comments merit special attention.  In considering the Congressional scheme in which some jurisdictions are covered and others are not, Kennedy focused on the disparity amongst states:

Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other. And does the United States take that position today?

Transcript at 34.   Later, Justice Roberts phrased a very similar question differently:

So is it your -- is it your position that today southerners are more likely to discriminate than northerners?

Transcript at 48. 

This is the last oral argument of the term, with a decision expected in late June.

RR

Voting Rights and African-Americans: Robson's Saturday Evening Review

With Northwest Austin Municipal Utility District v. Holder (considering the application and reauthorization of Section 5 of the Voting Rights Act) scheduled for oral argument before the Court the last day in the term, and most recently blogged here, legal scholarship on voting and race could not be more timely.  Luckily, there are two superb recently published articles that illuminate the subject of voting rights and African-Americans, especially pertinent for ConLawProfs.

The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev. 65 (2008) by Gabriel J. Chin and Randy Wagner opens with this provocative statement:

Modern constitutional law and scholarship rests on a conceptual mistake:
thinking of African Americans as a minority.

Gabriel (Jack) Chin and Randy Wagner argue that although African-Americans may have been a "minority nationally," they were

a majority in the states where their population was most highly
concentrated. In 1880, for example, African Americans were an absolute
majority in Louisiana, Mississippi, and South Carolina; and were over 40%
of the population in Alabama, Florida, Georgia, and Virginia, making Afri-
can Americans the largest single voting bloc in those states.

Further, "allied with Republican whites, African Americans outnumbered conservatives and
earned majority control of the electoral system in many states."  This history of majority political power, they contend, "creates an imperative to rethink segregation and the present condition of African Americans," moving disenfranchisement from one of a "laundry list of indignities," to a central feature of analysis.  The authors offer the tyranny model in which African-Americans

lost their majority power through unconstitutional means.
Thus, the disadvantages they experienced were the result not
of majoritarian indifference or discrimination, but of minority tyranny.

The authors' historical sections (complete with charts) of the Reconstruction and Jim Crow eras is compelling, demonstrating racial discrimination at the local, state, and federal levels as related to disenfranchisement.  The theoretical implications of their argument for judicial review strike at understandings of the so-called "counter-majoritarian difficulty": 

The idea at the core of the counter-majoritarian difficulty, that judicial
review should be restrained lest courts interfere with decisions of majorities,
counseled judicial vigor when those seeking help from the courts were in
fact majorities. If African Americans were a majority or controlling plurality
at the turn of the twentieth century, then judicial decisions failing to defend
their interests could not be the result of an effort, correct or not, to balance
majority rule and minority rights. Instead, anti-African American decisions
sacrificed both the principle of democracy and the letter of the Constitution
in favor of some other principle. The Court knew what it was doing when it
upheld discrimination and disenfranchisement; it consciously upheld laws
passed by minorities, against the will of majorities, who because of their
race had been denied the right to vote provided by the Constitution.
[in 1879] the Court recognized that there were "[s]tates where the colored
people constitute a majority of the entire population.''

Such a recognition, as Chin and Wagner argue, casts Plessy v. Ferguson, as well as other cases, in a very different light.

In her brilliant response, Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner,  43 Harv. C.R.-C.L. L. Rev. 127 (2008), Professor Taunya Lovell Banks essentially agrees with Chin and Wagner, concluding that " litigators should seriously consider using Chin and Wagner's argument and evidence to challenge the invocation of counter-majoritarian concerns in voting rights cases." 

 

Yet Banks extends (and in some ways updates) Chin and Wagner's argument:

While I agree with Chin and Wagner that the counter-majoritarian principle
has been misapplied by the Court in race discrimination cases involving
black Americans . . . Fear of black majority
rule was not the sole reason for black disenfranchisement efforts in the late
nineteenth and early twentieth century. If it had been, disenfranchisement
efforts would have decreased as the percentage of black voters in the states
decreased. Yet, as even Chin and Wagner concede, efforts to disenfranchise
black voters have continued into the twenty-first century in the absence of
black majorities or pluralities in the former states of the confederacy. Thus, I
contend that black disenfranchisement on both a local and national level is
linked to resistance by white racial conservatives to full political equality for
black Americans (and often other non-white racial/ethnic minorities).
Further, Chin and Wagner seem overly optimistic in believing that the
problem with the minority model analysis is simply the Court's unwilling-
ness to recognize the lingering effects of disenfranchised black majorities or
pluralities. Continued resistance among white racial conservatives (whose
interests are currently favored by the federal courts) to full political equal-
ity for black Americans makes it unlikely that "law" will grapple with the
consequences of nineteenth- and early-twentieth-century black disen-
franchisement anytime in the near future . . . . the Court continues
to further the rights of white racial conservative minorities nationally and locally.

Banks turns to several recent cases to prove her point.  Her analysis of Justice O'Connor's use of counter-majoritarian discourse in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) is the best I've seen; I expect it to be turning up in the notes of every Constitutional Law Casebook in the near future.  She also addresses Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) as a springboard to discuss her theories linking resource equality with racial diversity, and linking educational equality and rights with the larger social good.  Additionally, Banks argues that Bush v. Gore, 531 U.S. 98 (2000), should be read as a case about African-American disenfranchisement - - - again, I expect to be seeing the arguments excerpted in the notes of every ConLaw Casebook.

These two articles should be required reading for anyone interested in Northwest Austin Municipal Utility District v. Holder, the United States' deeply problematic history of voting, and judicial theorizing invoking counter-majoritarian difficulties.  

RR

House Judiciary Leaders Support VRA Reauthorization

A bipartisan group of leaders of the House Judiciary Committee filed an amicus brief today in Northwest Austin Municipal Utility District v. Holder, the case dealing with the application and reauthorization of Section 5 of the Voting Rights Act--the preclearance procedure--now before the Court.  The brief covers the history of the VRA and Congressional findings supporting its extension--good fodder for classes on Congress's authority under the Fourteenth and Fifteenth Amendments.

From the brief:

In 2006, after meticulous and extended consideration, Congress determined that the provisions of Section 5 have not yet "outlived their usefulness."  City of Rome v. United States, 446 U.S. 156, 180 (1980).  In making this determination, Congress acted at the height of its powers in regulating the three intersecting areas of voting, race, and political rights.  Congress's judgment is therefore entitled to substantial deference from this Court.  Accordingly, as the District Court properly held, Congress's decision to extend the VRA passes muster under any constitutional test, whether rationality review under Katzenbach or the "congruence and proportionality" test in City of Boerne.

We've posted on the case here, here, here, and here.

SDS

Toobin on the Voting Rights Act

Jeffrey Toobin writes in The New Yorker that "the current conservative majority has a chance to undo this signal achievement of American democracy," Section 5 of the Voting Rights Act, when the Court considers Northwest Austin Municipal Utility District No. 1 v. Holder later this term.  (The case is set for oral argument on April 29.) 

Section 5 is the "preclearance" provision of the VRA, requiring certain jurisdictions with a history of discrimination at the polls to obtain permission from the Justice Department prior to changing their voting procedures.  Northwest Austin MUD argues that it should be able to bail out of the preclearance requirement under the Act and that Congress lacked authority under the Reconstruction Amendments to reauthorize and extend Section 5 in 2006.  Toobin focuses on this second argument.  Toobin:

Some of the jurisdictions covered by Section 5 now want to be released from this form of federal receivership.  As the lower court in the case put it, the plaintiffs argue that the preclearance provision should be found unconstitutional "because Congress 'irrationally and incongruously' chose to continue imposing 'disproportionate' burdens and a 'badge of sham' on covered jurisdictions on the basis of an 'ancient formula' and 'conditions that existed thirty or more years ago but have long since been remedied.'"  What is the proof?  The plaintiffs stated it in the first line of their brief: "The American that has elected Barack Obama as its first African-American president is far different than when Section Five was enacted in 1965."

Toobin responds by exploring racialized voting patterns among whites in Section 5 jurisdictions in the 2008 election and the variety of hassles that blacks have disproportionately endured in every recent national election.

But two important components of the case are missing from this back-and-forth.  First, Northwest Austin MUD faces an significant uphill battle in its facial challenge of the VRA at the Roberts Court.  The Court has raised the bar for facial challenges in other election law contexts, and there's no reason to think that its high hurdle won't apply here.

Second, MUDs in general are hardly models of democracy.  In fact, they often operate in ways that ought to make us grateful for federal oversight via Section 5 of the VRA.  Professor Sara Bronin (U. Conn.) wrote about the problems with MUDs; I posted on her article here.

If the Court is true to its trend on facial challenges, it will look to the evidence before Congress in its reauthorization hearings and ask whether Northwest Austin MUD has shown that reauthorization is not proportional and congruent to the evils of voting discrimination in every conceivable case where Section 5 applies.  This italicized language is the high bar--or the thumb on the government's side of the scale--that the Court set in its recent jurisprudence on facial challenges.

But even if the Court backs off this standard and treats the case more like an as-applied challenge, a Texas MUD may not be the ideal political subdivision to take on Congressional authority to reauthorize Section 5.  Election practices in both Texas and the Northwest Austin MUD could go under the microscope, and the results may not be pretty.

I previously posted on the case here.

SDS

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

Government Supports Voting Rights Act Extension

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.

SDS

Virginia Election Lawsuit "on hold"

The Richmond Times-Dispatch at inrich.com reports that the NAACP has withdrawn its motion for a preliminary injunction that was previously discussed on ConLawProfBlog here.

According to the article by reporter Tyler Whitley, 

The election in Virginia will proceed as planned Tuesday without reallocating voting machines and extending polling hours.

But the NAACP, which filed suit against Gov. Timothy M. Kaine and the State Board of Elections, will monitor events on Election Day, and it will proceed with its lawsuit if long lines discourage people from voting, State Sen. Henry L. Marsh III, the attorney for the NAACP, said yesterday.

In federal district court in Richmond, the NAACP had sought an injunction to force the state to add equipment and extend the hours.

But it withdrew that motion yesterday before Judge Richard L. Williams was to consider it. "It was too difficult to get the issue resolved in time for Tuesday," Marsh said.

Stay tuned for further updates.

RR

SCOTUS: Race and Voting Oral Argument

On October 14, SCOTUS heard oral arguments in Bartlett v. Strickland, a racially-cognizant redistricticting case from North Carolina, involving an interpretation of the Voting Rights Act, and a possible conflict with the North Carolina state constitution. 

The state court opinion is Pender County v. Bartlett, 649 S.E.2d 364 (N.C. 2007).  A transcript of the SCOTUS oral argument is here (thanks Election Law Blog).   The New York Times and Washington Post have brief news reports.

In addition to the federalism issues raised by a possible conflict between the Voting Rights Act and the state constitution, the case has equal protection implications.  Any racially-cognizant redistricting litigation in North Carolina occurs in the long shadows cast by SCOTUS decisions on equal protection challenges to redistricting in North Carolina.  In Shaw v. Reno, 509 US 630 (1993), the Court held that there was a claim under the equal protection clause for the "bug-splattered on a windshield" and I-85 corridor snake districts, and remanded for consideration of whether the redistricting was narrowly tailored to meet a compelling governmental interest.  In Hunt v. Cromartie, 526 U.S. 541 (1999), the Court again found the redistricting was a racial classification subject to equal protection challenges.  And in Easley v. Cromartie, 532 U.S. 234 (2001), the Court decided that race was not the "predominant" factor in the redistricting.

RR