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

[Scarberry, Mark]

Sam's analysis is persuasive.

I wonder, though, whether there is another approach. One of the problems that led to adoption of the VRA (if I remember correctly) was adoption by covered jurisdictions of novel schemes to disenfranchise minority voters. Practices that have been adopted somewhat widely in non-covered jurisdictions, and that have been upheld as nondiscriminatory in those jurisdictions, are not novel, and probably reflect nondiscriminatory purposes when adopted in covered jurisdictions. Automatic pre-approval of such practices, in the absence of evidence of discriminatory purpose or effect, would leave novel practices subject to more substantial pre-clearance scrutiny.

It might also be appropriate to consider whether the practice proposed to be adopted in a covered jurisdiction provides for discretion in its application. Literacy tests, for example, were not just objectionable because of their general disenfranchisement of illiterate persons, but also because the discretion given to officials in applying literacy tests could be used (and was used) to discriminate against black voters (as was predicted by members of the Reconstruction Congress in their rejection of literacy requirements for voters in local DC elections). If the ability of officials to exercise discretion in using non-novel practices were taken into account, then even practices like occasional moving of polling places could be subject to the current preclearance standards.

My apologies if these points are too obvious or have already been made, either on this list or in the literature.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel Bagenstos
Sent: Tuesday, February 07, 2012 1:18 PM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] @TheRepLawyer, 2/7/12 12:43 PM

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<mailto: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:


[http://a0.twimg.com/profile_images/482972132/rnla_logo_normal.jpg]RNLA (@TheRepLawyer<https://twitter.com/TheRepLawyer>)
2/7/12 12:43 PM<https://twitter.com/thereplawyer/status/166985488266301440>
Text of South Carolina #voterID<http://search.twitter.com/search?q=#voterID> complaint rnla.org/Blogs/blogs/pu...<http://t.co/eFNbaraD>



Rick Hasen

Sent from my iPhone. Please excuse typos.
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120207/142b14c8/attachment.html>