[EL] @TheRepLawyer, 2/7/12 12:43 PM

[Samuel Bagenstos]

Just a quick reaction to the complaint.  Aren't paragraphs 35 and 36, which seem like the fulcrum, a bit too cute?  They read:

35. This Court should adopt a reasonably permissible construction of Section 5 of the VRA that preclears South Carolina’s voter photo identification requirements and thereby avoids the grave constitutional concerns recognized by the Supreme Court in Nw. Austin Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009). The Supreme Court has expressly upheld voter identification requirements in non-covered jurisdictions. See Crawford, 553 U.S. at 203 (opinion of Stevens, J.) (holding that Indiana’s voter identification law was a “neutral, nondiscriminatory regulation of voting procedure”); id. at 204-05 (Scalia, J., concurring in the judgment) (holding that the Indiana law was a “generally applicable, nondiscriminatory voting regulation”). Yet South Carolina is barred from implementing an almost-identical law, solely because it is covered by Section 5—based on nearly 50-year-old evidence of discrimination that was remedied long ago.

36. If Section 5 of the VRA is interpreted to prohibit South Carolina’s Act R54, it will create a situation in which similarly situated, but non-covered States may enact voting-fraud prevention legislation while covered States are barred from doing so. This would create the anomalous situation in which covered jurisdictions would be precluded from enacting legislation that the Supreme Court has found to be perfectly constitutional in a non-covered State. Such a reading of Section 5 of the VRA would raise serious constitutional concerns whether Section 5 of the VRA violates South Carolina’s right to equal sovereignty and should be avoided.

As an analytic matter, paragraph 36 does no more than restate Northwest Austin -- which expressly declined to decide any constitutional question -- no?  The whole point of legislation that applies to only some states is that it will sometimes make conduct unlawful in those states that would be lawful in others.  Northwest Austin said that's what raises serious constitutional concerns.  But the remedy can't be to "interpret[]" or "constru[e]" Section 5 so that it never creates the situation in which conduct is unlawful in covered states when it is lawful in others.  To do so is to *effectively* decide that Section 5 is unconstitutional without going through the necessary analysis -- or having the guts -- to actually come out and say the statute is unconstitutional.

Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109
sambagen at umich.edu
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/




On Feb 7, 2012, at 3:48 PM, Rick Hasen wrote:

> 
> RNLA (@TheRepLawyer)
> 2/7/12 12:43 PM
> Text of South Carolina #voterID complaint rnla.org/Blogs/blogs/pu…
> 
> 
> Rick Hasen
> 
> Sent from my iPhone. Please excuse typos. 
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> Law-election at department-lists.uci.edu
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