Thursday, March 7, 2013
Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.
Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.
In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as
a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
To what writings does Justice Scalia refer? ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings. Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here.
Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality." Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.) His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).
Scalia indeed does use the term "racial entitlement" in his remarks:
The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.
But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional. Scalia wrote then:
[image: caricature of Antonin Scalia by DonkeyHotey via]
Linda Greenhouse's NYT "Opinionator" column is almost always worth a read.
But yesterday's column entitled "A Big New Power" is a must-read for anyone considering the Court's pending opinion in Shelby County v. Holder and the controversy surrounding Scalia's remarks during the oral argument.
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote.
Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.
Wednesday, February 27, 2013
The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act. If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.
Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws. This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race. This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination. (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA. Section 2 is not at issue in this case.)
Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments. In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws. Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.
The arguments were lively, to say the least. The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine. And they all seemed to have their minds made up, more or less. If there are swing votes, look to Chief Justice Roberts or Justice Kennedy. Although they seemed set in their positions, they seemed perhaps the least set.
Substantively, there were few surprises. Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument). So these points that came up today are familiar:
- Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
- Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
- Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
- Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
- Whether with a string of reauthorizations preclearance will ever not be necessary.
On this last point, it was clear that for some justices the government was in a tough spot. On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide. But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary. (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)
All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.
This doesn't mean, necessarily, that the whole scheme will go down. There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b). But this result would likely doom the whole scheme, in fact. That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country. Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.
There was a low point. Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:
Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
It's not exactly clear what's the "racial entitlement" in Section 5. Section 5 is simply not an entitlement provision. But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race? If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes." As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.
February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Saturday, February 23, 2013
Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.
Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder . The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.
Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy. Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle." Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute. Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."
Cohen concludes that the stakes in Shelby are very high:
If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.
Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.
February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, January 7, 2013
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, November 9, 2012
The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006. The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws. The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states. The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality. Thus Section 5 survived Northwest Austin--but just barely.
The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage. Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws. The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null. But a ruling overturning only Section 4(b) could leave Section 5 in place. Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).
The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization. But it seems highly unlikely. Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b). Here's the QP:
Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.
The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns. Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.
The Court took no action on another Section 5 challenge, Nix. Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.
November 9, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Sunday, September 2, 2012
Following an earlier ruling last week by a three-judge panel of the D.C. District denying Section 5 preclearance to Texas legislature's redistricting plans, a Western District of Texas panel ruled on Friday that the most recent court-drawn plans will remain in place for the upcoming elections.
The ruling means that the court-drawn plans will govern the upcoming elections--even though at least one of those plans, the congressional district plan, was based closely on the Texas legislature's original plan that was denied preclearance earlier in the week.
This can all seem confusing, so let's sort it out from the beginning. The Texas legislature redrew maps for its congressional, state senate, and state house seats in response to its ballooning and shifting population in the 2010 census and to maintain one-person-one-vote in its districts. But Texas was required to gain preclearance under Section 5 of the VRA before it implemented those plans. So it sought preclearance from a three-judge panel of the U.S. District Court for the District of Columbia. (It could have alternatively sought preclearance from DOJ, but it didn't.)
While the Section 5 case was pending, plaintiffs challenged the plans in the United States District Court for the Western District of Texas, alleging that the plans violated Section 2 of the VRA. The Texas court, recognizing that the Section 5 case was pending but that the D.C. court had not yet ruled, ruled in favor of the plaintiffs and redrew the maps. Texas appealed to the Supreme Court, and the Court invalidated the maps, in Perry v. Perez.
The Texas court went back to the drawing board and came up with new court-drawn maps, more closely based on the Texas legislature's original maps. (The original maps were still pending Section 5 preclearance in the D.C. court.) Nobody challenged the newly redrawn maps by the Western District court--at least not yet.
Earlier last week, the D.C. District finally ruled that the Texas legislature's original redistricting maps did not merit preclearance under Section 5 of the VRA. The ruling didn't touch the most recent court-drawn maps by the Western District, however. Those maps seemed to stay in place. (Texas announced later last week that it would appeal the Section 5 ruling to the Supreme Court. That announcement doesn't affect the Western District's maps--at least until the Supreme Court rules.)
After the D.C. court ruling last week, the Western District set a status conference for Friday to sort it all out. According to the order, the court preliminarily assumed that its own most recent maps would govern the 2012 elections, but it offered parties an opportunity to argue otherwise. Only one plaintiff in the original Section 2 case argued that the most recent court-drawn maps shouldn't govern: the League of United Latin American Citizens argued that the court's congressional map was invalid, because it was based too closely on the Texas legislature's original congressional map, which failed preclearance earlier in the week.
The Western District rejected that argument and ruled from the bench that its own redrawn maps would govern the 2012 elections. It also asked the parties for proposals by December 1 on how to move forward.
Unless there are any surprise moves--and they'd have to be a real surprise, and real quick, given the timing--the latest court-drawn plans will govern the upcoming elections.
Meanwhile, the Texas legislature's plans may go to the Supreme Court. But even if they do, the application of Section 5 will hardly be the most interesting issue related to the VRA before the Court. That's because the Court is almost certain to grant cert. to a challenge to the constitutionality of Section 5. If so, and if the Court, as expected, overturns Section 5, the Texas legislature's original plans may go back into place--but only after the 2012 elections.
September 2, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 28, 2012
In the latest chapter of the Texas redistricting saga, a three-judge panel of the D.C. District ruled in Texas v. United States that Texas's redistricting maps failed to merit preclearance under Section 5 of the Voting Rights Act.
The ruling means that the Texas legislature's original redistricting maps fail. But the ruling doesn't touch the interim maps most recently drawn by the Western District of Texas in the companion Section 2 suit. Those maps have not been challenged.
The ruling also doesn't say anything about the constitutionality of Section 5. That's the topic of a cert. petition now before the Supreme Court.
Recall that the case arose when Texas sought preclearance for its redrawn State House, State Senate, and Congressional districts from the three-judge panel in the D.C. District (and not the DOJ). (Texas redrew its districts to account for its ballooning population and to meet the one-person-one-vote standard. But Texas, as a covered jurisdiction under Section 4 of the VRA, had to receive preclearance under Section 5 before it could finalize and implement the new maps.) Soon after Texas filed its Section 5 preclearance case, opponents of the maps filed a claim under Section 2 of the VRA in the Western District of Texas. While the Section 5 case was pending in the D.C. District, the Western District drew its own maps that, it said, complied with the VRA so that Texas could move ahead with its scheduled primary elections.
Meanwhile, the Section 5 case in the D.C. District moved forward, and that court ruled today that the state's original maps--the ones for which it originally sought preclearance--did not merit preclearance. As a result, the only maps out there seem to be the Western District's redrawn maps.
Today's case says nothing about the constitutionality of Section 5. The D.C. Circuit recently ruled on that question, and said that Section 5 is constitutional. The cert. petition in that case, Shelby County v. Holder (and a related, companion case), is now before the Supreme Court.
The Texas redistricting case is something of a side-show, now that the more central issue in Shelby County is on cert.--with the Supreme Court almost surely to grant review. But even if the Court overturns Section 5, as seems likely, any maps still have to pass muster under Section 2--the original cause of action in the Western District case. Shelby County doesn't challenge Section 2.
August 28, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (2) | TrackBack (0)
Wednesday, August 22, 2012
Alaska became the latest state to lodge a constitutional challenge against Section 5 of the Voting Rights Act when it sued AG Eric Holder yesterday for declaratory and injunctive relief in the United States District Court for the District of Columbia. It's not clear that the case will even make it out of the starting gate, though. As we wrote here, the Shelby County case, also challenging Section 5 under the exact same theories, is almost surely going to the Supreme Court this Term.
The suit, State of Alaska v. Holder, takes on Section 5 both on its face and as applied to Alaska. The allegations are simple and familiar: Congress exceeded its authority under the Fourteenth and Fifteenth Amendments in reauthorizing Sections 4 and 5 of the VRA; and the VRA violates the principle of "equal sovereignty" and the Tenth Amendment.
Alaska, a covered jurisdiction under Section 4 of the VRA, says that preclearance is a hassle and potentially interferes with its ability to run its elections. The state cites DOJ's denial of preclearance earlier this year for a proposed new distribution scheme for the state's Spanish/Tagalog translation of its voter information pamphlet. It also cites an eleventh-hour preclearance of a redistricting plan, arguing that any later decision by DOJ (either way) might have interfered with the state's primaries.
While this case is disconnected to those events, it probably doesn't matter for standing. Judge Bates ruled in Shelby County that the County had standing based on its need, as a covered jurisdiction without the possibility of bailout, to prepare for preclearance--the time, expense, etc. So too here.
But even so, the case is unlikely to move forward, given the near certainty that the Supreme Court will pick up Shelby County this Term.
August 22, 2012 in Cases and Case Materials, Congressional Authority, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Monday, July 23, 2012
Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act. Shelby County's petition is here; Nix's petition is here. More on the differences below.
The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.
The move was expected. With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA. A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot. The ruling teed the challenge up for Supreme Court review.
At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.
Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA. But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.
The two cert. petitions cover two distinct issues. Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b). In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.
Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority. Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority. Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances." (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.) But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off." These changes, say Nix, exceed congressional authority.
Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot. He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.
With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.
July 23, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Friday, May 18, 2012
A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act. The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional. We covered the case in the lower court here and here; those posts contain more thorough background.
The ruling tees up the case for Supreme Court review. The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA. It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder. This case gives it a second crack, with the constitutional question unavoidably front-and-center.
When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit). In particular: Do congressional findings adequately support Sections 5 and 4(b)? If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.
But there's another question to watch for: By what measure will the Court scrutinize congressional findings? In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b). This Court has suggested that it won't give much.
Congress had a thorough record when it reauthorized the VRA in 2006. The question is whether it was thorough and precise enough for this Court. Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.
In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case. The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:
First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . . Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."
Op. at 14.
In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006. (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)
Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment. This illustration summarizes the point:
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . . As to federal observers, Indiana appears clearly "better"--it received none . . . . As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . . This distinction in evaluating the different states' policies is rational?
Dissent, at 32.
May 18, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
The D.C. Circuit ruled today in LaRoque v. Holder that a plaintiff's challenge to the preclearance provision of Section 5 of the Voting Rights Act was moot after the Attorney General withdrew its objection to a referendum making local elections nonpartisan in Kinston, North Carolina, a covered jurisdiction. We previously posted on the case here.
The ruling comes the same day as the same three-judge panel affirmed the constitutionality of Sections 5 and 4(b) of the VRA. (Judge Williams dissented in that case.)
The court rejected the plaintiff's claims that the AG might again object to voting changes (that the objections are capable of repetition but evading review) and that a ruling that Section 5 is unconstitutional would make it easier for the plaintiff to ask North Carolina to nullify the last election (conducted as a pre-referendum partisan election) and give him a do-over.
The ruling says nothing about the constitutionality of Section 5. But that doesn't matter: The other case today, Shelby County, affirming the constitutionality of Section 5, is all but certainly heading to the Supreme Court.
Thursday, March 8, 2012
On March 8, 1957, the Georgia legislature argued that "the continued recognition of the 14th and 15th Amendments as valid parts of the Constitution of the United States is incompatible with the present day position of the United States as the World's champion of Constitutional governments resting upon the consent of the people given through their lawful representatives," and passed a MEMORIAL TO CONGRESS -- FOURTEENTH AND FIFTEENTH AMENDMENTS TO U.S. CONSTITUTION BE DECLARED VOID.
The remainder of the Memorial can be read here.
(h/t Diane Marie Amann via)
Saturday, January 14, 2012
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
January 14, 2012 in Association, Current Affairs, Elections and Voting, Federalism, Fifteenth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 21, 2011
Judge John D. Bates (D.D.C.) today ruled that Congress had authority to reauthorize Section 5 of the Voting Rights Act under Section 2 of the Fifteenth Amendment. Section 5, the preclearance provsiion, says that covered jurisdictions must demonstrate to the Attorney General or a federal court that a proposed change to voting practices or procedures has neither the purpose nor effect of denying or abridging the right to vote on account of race.
The ruling came in Shelby County v. Holder, a facial challenge to the 2006 reauthorization of Section 5 and the related Section 4(b) by Shelby County, Alabama. Shelby County is a covered district under Section 4(b) and brought this suit seeking a declaratory judgment that Sections 5 and 4(b) were facially unconstitutional. We previously covered the case here.
Judge Bates denied Shelby County's motion for summary judgment and instead granted summary judgment to the government. The ruling means that the preclearance provision of the VRA stays on the books unless and until Shelby County successfully appeals, or unless and until another plaintiff brings an ultimately successful case--one in which the Supreme Court itself strikes down the provision.
Section 5, the preclearance provision, is a familiar target. It came to the Supreme Court in its 2008 Term in Northwest Austin Municipal Utility District v. Holder, but the Court dodged the constitutional question by ruling that the Utility District plaintiff qualified for bailout from the preclearance requirement under the language of the VRA. (The VRA allows covered jurisdictions to bail out of the preclearance provision if they meet certain requirements. Although the Court dodged the constitutional question, it suggested that the preclearance provision may be vulnerable.) But Shelby County argued that it wasn't eligible for bailout, and it therefore helped ensure that the courts couldn't dodge the constitutional question. Shelby County brought the case as a facial challenge, without identifying any particular application of Section 5 as exceeding congressional authority.
Judge Bates's opinion is (appropriately, necessarily) lengthy--151 pages in all. As we might expect, it summarizes in some detail the 15,000 pages of legislative record supporting the 2006 reauthorization. But it also spends considerable space describing the history of the VRA, the evolution of the Court's approach to it, and, perhaps most importantly, explaining these two principles:
1. The apparently less deferential standard in City of Boerne v. Flores was simply a "refined version of the same method of analysis" in the apparently more deferential standard in Katzenbach v. Morgan. These are not two separate standards, as the parties argued. The Court in Boerne held that legislation enacted under Section 5 of the Fourteenth Amendment must be "proportional and congruent" to the constitutional violation; Katzenbach held that legislation must be just rationally related. Judge Bates Boerne was just an extension of Katzenbach.
2. The same standard--the Boerne-as-refined-Katzenbach standard--applies both to congressional authority under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment.
Judge Bates ruled that the preclearance requirement for covered jurisdictions was proportional and congruent to racial discrimination in voting. He first reviewed the evidence that Congress compiled in 2006--evidence of racial disparaties in voter registration, the number of minority elected officials, and the nature and number of Section 5 objections. (These were the same types of evidence that the Court relied upon in City of Rome.) But he also looked at evidence of more information requests, Section 5 preclearance suits, Section 5 enforcement actions, Section 2 litigation, the dispatch of federal election observers, racially polarized voting, and Section 5's deterrent effect. He concluded that the record of racial discrimination in voting that Congress relied upon in 2006 was at least as strong as the record that the Court held sufficient for reauthorization in 1975 in City of Rome and "far exceeds" the record that the Court held sufficient to uphold the Family and Medical Leave Act and Title II of the Americans with Disabilities Act in Hibbs and Lane, respectively.
Judge Bates next concluded that Section 5 was limited by geography and time--the two factors that the Court in Boerne highlighted in showcasing Section 5 as "an examplary congruent and proportional remedy." Op. at 133.
Finally, Judge Bates concluded that Section 4(b) didn't render preclearance unconstitutional and didn't violate the principle of equal sovereignty. Section 4(b) is the coverage formula for Section 5; it looks to voting practices, registration, and presidential election data from 1964, 1968, and 1974 to determine if a jurisdiction is covered. Shelby County argued that this trigger, also reauthorized in 2006, looked to outdated information to determine preclearance coverage. Judge Bates disagreed. He wrote that Section 4(b) (including its 1964, 1968, and 1974 data) operated as a proxy for identifying jurisdictions that had established histories of vote discrimination, and not because something special happened during those years. As such, the 2006 reauthorization could just as well look to data from those years in defining covered jurisdictions.
Judge Bates's ruling--and the VRA's preclearance provision--may be most vulnerable on this point. The Court said as much in Northwest Austin when it suggested that much has changed in voting patterns and practices in covered jurisdictions and particularly called out the trigger as "based on data that is now more than 35 years old."
September 21, 2011 in Cases and Case Materials, Congressional Authority, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Friday, August 26, 2011
The paradox is one that has almost become taken for granted. As ConLawProf William Carter (pictured below) phrases it in his new essay, The Paradox of Political Power: Post-Racialism, Equal Protection, and Democracy, available on ssrn:
Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system.
Carter argues that the Supreme Court has contributed to this paradox. Importantly, Carter contends that electoral success has been "isolated," despite the election of President Obama, and that the Court has not uniformly supported legislative acts to increase electoral representation. Additionally, Carter notes the "tension" between the "Court's conservatives' repeated calls for minorities to achieve their goals through the political process" and the ways in which the Court "severely constrains the circumstances" in which the political power of racial minorities can effectively be exercised.
In discussing Ricci v. DeStefano (2009), Carter concludes that the Court's majority opinion "showed deep suspicion of black political power." Carter contends that the Court found that
successful black political advocacy that temporarily prevented the perpetuation of racial exclusion amounted to reverse discrimination against whites. It reached this conclusion despite the fact that no promotions were made at all and the fact that making the racially discriminatory promotions likely would have violated then-existing law. In essence, Ricci makes a racial minority group’s success in using ordinary politics to prevent its continued subordination and exclusion presumptively illegal.
Carter also analyzes Northwest Austin v. Holder, decided the same year as Ricci, involving §5 of the federal Voting Rights Act. He provides a different window on the opinion than the ones (such as our discussion) construing it as a narrow opinion that avoided declaring §5 unconstitutional. For Carter, Justice Roberts "lengthy dicta" was a signal to Congress that several members of the Court believed §5 raised serious constitutional questions. The opinion, Carter says, was "suffised with post-racialist assumptions about minority political power." Carter sums up the paradox of voting rights legislation in a neat question: "If racial minorities are powerful enough to have such legislation enacted, then why do they need it?"
The major contribution of Carter's essay, however, is his suggestion for addressing these paradoxes. In addition to theorizing our understandings of our Constitutional and Equal protection Clause narratives, Carter suggests
the addition of a preliminary step to the equal protection analysis. Prior to the application of
strict scrutiny in cases where racial minorities have used the political process to enact legislation directed toward remedying the effects of past discrimination or otherwise leveling the playing field, the courts should scrutinize the political process that led to the decision in question, not merely the end result.
Undoubtedly, Carter's essay is a noteworthy contribution to our scholarly understanding of recent "race-cases" from the Court. It is also terrific teaching material. Carter's relatively brief essay, 34 pages, would make an excellent assignment for students in traditional Constitutional Law courses as well as courses focusing on the Fourteenth Amendment, on Equality, or on Race. It is sure to inspire discussion and student reaction papers.
August 26, 2011 in Affirmative Action, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 26, 2011
Dr. Greg Rabidoux asked yesterday on the American Constitution Society blog, Will the Roberts Court Kill the Voting rights Act?
Rabidoux argues that the VRA, especially Section 5, the "preclearance" requirement, might be on its last leg, based on Chief Justice Roberts's opinion in Northwest Austin Municipal Utility District v. Holder. The Court in that case dodged the constitutional question--whether Congress had authority to reauthorize the preclearance requirement of the VRA--by holding that the District (or the "MUD") was eligible for bailout from the preclearance requirement. Chief Justice Roberts wrote for eight members of the Court (all but Justice Thomas, who would have ruled Section 5 unconstitutional) and said that the VRA has some "serious constitutional concerns," but went no farther in exploring the constitutional question.
Rabidoux correctly predicts that two cases now working their way through the courts may give the Supreme Court an opportunity to take on the constitutional question--and to rule the preclearance requirement outside the bounds of congressional authority. Those cases are Shelby County v. Holder (now in the district court for D.C.) and LaRoque v. Holder (now in the D.C. Circuit).
July 26, 2011 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)
Saturday, July 9, 2011
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.
July 9, 2011 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)
Thursday, September 16, 2010
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.
September 16, 2010 in Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)