Wednesday, April 29, 2009

Today's Argument on the Voting Rights Act and What It Might Mean for State Employment

Supct The Supreme Court heard its last oral argument of the term today in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, known to those who follow it as the "NAMUDNO" case. The case concerned Congress' extension in 2006 of Section 5 of the Voting Rights Act, which requires some jurisdictions to get advance approval (preclearance) of changes to election laws. The preclearance is designed to prevent discrimination in the ability to vote on the basis of race. What, you may ask, does this have to do with workplace law? A lot, as it turns out, if you happen to be a state employer or state employee.

The primary challenge to this Section 5 is that it exceeds Congress' power under that other Section 5--Section 5 of the Fourteenth Amendment. To be validly enacted under Section 5 of the 14th Amendment, a statute must be congruent and proportional to remedy a documented constitutional harm, as the Court held in City of Boerne v. Flores. The remedies of the Voting Rights Act were held to be valid enactments in their original incarnation in Katzenbach v. Morgan and South Carolina v. Katzenbach. However, because of the passage of time since most of the original constitutional violations, it's no longer as clear that the remedies which go beyond what the constitution itself would provide remain within Congress' powers. (I have written on the passage of time issue--here is a link to it on SSRN).

The way this issue impacts workplace law is that it relates to how Congress can subject states as employers to suits for money damages brought by injured employees--think Title VII in particular. The state is ordinarily immune from suits for damages brought by individuals either in federal court (11th amendment) or their own courts (state sovereign immunity). Congress can abrogate that immunity, but only under its Section 5 of the 14th Amendment powers. We had a series of cases right around the turn of the century at the Supreme Court and the lower federal courts holding that a number of federal statutory provisions couldn't be used by state employees to sue their employers.

If the Supreme Court holds that the extension of Section 5 of the Voting Rights Act is unconstitutional, look out for renewed litigation on the employment statutes, particularly the disparate impact provisions of Title VII, which are also under at least a veiled attack (by some amici) in Ricci v. DeStefano. According to SCOTUSblog, the Court seems evenly divided on this constitutional question with Kennedy being the swing vote. Rick Hasen (Loyola LA) at Election Law blog thinks that the Court will find this unconstitutional. We'll have to wait and see what the Court does.

The audio of the argument can be found here (in a historical move the Court released it early), and the transcript is here.


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